The Delhi High Court has refused regular bail to a 70-year-old man accused of carrying nearly six kilograms of heroin, holding that his prolonged custody and the slow progress of the trial were insufficient, by themselves, to overcome the stringent conditions prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The bench of Justice Madhu Jain observed that the allegation involved 5.987 kilograms of heroin, which falls within the category of commercial quantity. Considering the nature and quantity of the contraband, the material available on record and the statutory restrictions governing bail in NDPS cases, the Court was not satisfied that the conditions necessary for granting bail had been met.
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The regular bail application was filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 439 of the Code of Criminal Procedure, 1973. The applicant sought release during the pendency of the trial arising from a case registered by the Directorate of Revenue Intelligence under Sections 21(c) and 23 of the NDPS Act.
According to the prosecution, the applicant was intercepted at the Indira Gandhi International Airport while travelling to India. He was allegedly carrying a trolley bag in which 5.987 kilograms of heroin had been concealed.
The applicant maintained that he had no knowledge of the contraband and claimed to be a victim of cyber fraud committed by certain foreign nationals. His counsel submitted that the foreign nationals had induced him to travel to Malawi on the representation that a substantial amount of money had been sanctioned in his favour. They had also allegedly assured him that all expenses connected with the journey would be borne by them.
It was argued that, while the applicant was returning from Malawi, a taxi driver handed him a trolley bag on the instructions of those foreign nationals. The applicant allegedly checked the bag and found only clothes and personal belongings. He consequently brought the bag to India without knowing that it contained contraband.
The defence emphasised that the heroin was not recovered from the applicant’s person or from an openly accessible part of the luggage. It was allegedly concealed inside a cavity in the inner walls of the trolley bag and could be discovered only after officials dismantled the bag by removing its screws and internal layers.
According to the applicant, the sophisticated manner of concealment supported his contention that he had no knowledge of the heroin. The issue of conscious possession was, therefore, disputed.
The Court was also informed that the applicant was a senior citizen with no previous criminal antecedents and had remained in judicial custody since April 22, 2023. The prosecution had cited 34 witnesses, but only six had been examined. On that basis, the defence contended that the trial was unlikely to conclude soon and that the applicant had already undergone approximately three years of incarceration.
Opposing the application, the DRI argued that, except for denying knowledge of the contraband, the applicant had admitted the material circumstances surrounding the recovery. The agency stressed that he was found carrying the trolley bag containing a commercial quantity of heroin.
The DRI further pointed out that charges had already been framed against the applicant and that the order framing charges had not been challenged. It submitted that the material on record disclosed a prima facie case and attracted the statutory presumptions and bail restrictions under Sections 35 and 37 of the NDPS Act.
After considering the rival submissions, the High Court held that the question of whether the applicant was in conscious possession of the heroin and whether his explanation regarding the trolley bag should be accepted would require an appreciation of evidence during the trial.
At the bail stage, the Court said it was required to examine the material on record and determine whether the statutory conditions for release were satisfied. The applicant’s defence of lack of knowledge could not be conclusively accepted without evaluating the evidence.
The Court took note of the applicant’s approximately three-year incarceration and the fact that only six of the 34 prosecution witnesses had been examined. It nevertheless held that this circumstance alone did not justify bail in the particular facts of the case.
The Court found it significant that the alleged recovery involved 5.987 kilograms of heroin, charges had already been framed, and the order framing charges remained unchallenged. It consequently concluded that the requirements of Section 37 of the NDPS Act had not been fulfilled at this stage.
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