Delhi High Court
Arshaduddin Ahmad @ Arshad Ahmad vs Narcotics Control Bureau on 28 May, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:28.05.2025
+ BAIL APPLN. 446/2025 & CRL.M.A. 3188/2025
ARSHADUDDIN AHMAD @
ARSHAD AHMAD .....Applicant
versus
NARCOTICS CONTROL
BUREAU .....Respondent
Advocates who appeared in this case:
For the Applicant : Mr. Aditya Aggarwal, Mr. Naveen Panwar,
Ms. Kajol Garg, Mr. Manas Agarwal & Mr.
Vineet Chawla, Advs.
For the Respondent : Mr. Arun Khatri, SSC for NCB with Ms.
Shelly Dixit & Mr. Pankaj Nagar, Advs.
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present bail application is filed seeking regular bail in Case
No. VIII/50/DZU/23, registered for offences under Sections 8(c),
22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (‘NDPS Act‘).
2. Briefly stated, on the basis of secret information received on
25.10.2023, officers of the Narcotics Control Bureau (NCB), Delhi
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Zonal Unit, intercepted a parcel lying at the DTDC Express Ltd.
office, Samalkha, Delhi. The said parcel, bearing AWB No.
V88859066, was addressed to one ‘Saqlain’ at Apollo Clinic,
Guwahati, Assam, and was suspected to contain narcotic substances.
3. Upon search, the parcel was found to contain 50.95 grams of
MDMA (Ecstasy), a commercial quantity, concealed within a blue
jacket. The parcel bore the name and address of the sender as ‘Rohit,
Janakpuri, West Delhi’, along with a mobile number.
4. During the course of inquiry, NCB traced the origin of the
parcel to M/s A.B. Services, a DTDC franchise in Janakpuri, where it
was allegedly booked by the applicant/accused. The booking agent,
Nitin, in his statement recorded under Section 67 of the NDPS Act,
claimed that the applicant had visited the courier office, introduced
himself as ‘Rohit’, and produced an Aadhaar card in that name. He
further stated that the applicant paid ₹1,200 in cash for the shipment
and provided a contact number–7701931570–for correspondence.
5. The said mobile number was traced and allegedly used to
contact the courier agent prior to booking. Based on this information,
a team of NCB officials apprehended the applicant on 26.10.2023 near
Dolma Aunty Momo’s outlet in Lajpat Nagar. The applicant was
subsequently arrested on 27.10.2023.
6. Subsequently, it is alleged that data recovered from the
applicant’s mobile phone contained a photograph of the Aadhaar card
used to book the parcel.
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7. The learned counsel for the applicant submitted that the
applicant has been falsely implicated in the present case and that there
was no recovery of any contraband from his person. The entire case
against the applicant rested on the disclosure statements of the co-
accused and the courier agent, which could not be treated as
substantive evidence in law. He submitted that the disclosure
statements cannot be used against the applicant in view of the
judgment passed by the Hon’ble Apex Court in Tofan Singh v. State
of Tamil Nadu: (2021) 4 SCC 1.
8. He submitted that the parcel containing the contraband was not
addressed to or from the applicant. The sender’s name was mentioned
as ‘Rohit’, and no material directly linked the parcel with the
applicant. No tracking receipt, Aadhaar card, or parcel booking slip
was recovered from the applicant during search or arrest.
9. He submitted that there is no money trail or incriminating
evidence which links the applicant to the present offence and the
rigours of Section 37 of the NDPS Act are not attracted against him.
10. Lastly, he submitted that the applicant is suffering from serious
and deteriorating medical condition. The applicant had been suffering
from hypertension, seizure disorder with post-ictal amnesia, DNS with
Concha Bullosa, allergic rhinitis, bronchial asthma, and persistent
migraines.
11. He submitted that the applicant was arrested on 27.10.2023 and
the charges are yet to be framed in the present case. He submitted that
there are fifteen witnesses and the trial is likely to take long.
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12. Per contra, the learned Senior Standing Counsel for the
respondent vehemently opposed the grant of bail to the applicant and
submitted that the present case involves recovery of commercial
quantity of contraband and therefore the rigours of Section 37 of the
NDPS Act are attracted against the applicant.
13. He submitted that the applicant is actively involved in the
commission of the offence and there is no evidence on record to show
that there are reasonable grounds for believing that the applicant is not
guilty of the alleged offence.
Analysis
14. It is settled law that the Court, while considering the application
for grant of bail, has to keep certain factors in mind, such as, whether
there is a prima facie case or reasonable ground to believe that the
accused has committed the offence; circumstances which are peculiar
to the accused; likelihood of the offence being repeated; the nature and
gravity of the accusation; severity of the punishment in the event of
conviction; the danger of the accused absconding or fleeing if released
on bail; reasonable apprehension of the witnesses being threatened;
etc. At the same time, the period of incarceration is also a relevant
factor that is to be considered.
15. It is unequivocally established that, to be granted bail, the
accused charged with offence under the NDPS Act must fulfil the
conditions stipulated in Section 37 of the NDPS Act. Section 37 of the
NDPS Act reads as under:
“37. Offences to be cognizable and non-bailable.–(1)
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Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)–
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for offences
under Section 19 or Section 24 or Section 27-A and also
for offences involving commercial quantity shall be
released on bail or on his own bond unless–
(i) the Public Prosecutor has been given an opportunity
to oppose the application for such release, and
(ii) where the Public Prosecutor oppose the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974), or any other law for the
time being in force, on granting of bail.”
16. At the outset, it is noted that the recovery in the present case
pertains to a commercial quantity of MDMA (Ecstasy), weighing
50.95 grams, from a courier parcel lying at the DTDC Express Ltd.
Samalkha branch. In the present case, it is essentially argued that the
applicant has been falsely implicated. It is contended that the
applicant’s arrest is not supported by any independent recovery and is
premised solely on the disclosure statements of co-accused Gaius and
the courier booking agent Nitin. It is further argued that there is no
direct material linking the applicant to the contraband recovered from
the intercepted parcel.
17. It is relevant to note that while the veracity of the disclosure
statement of the co-accused is to be tested at the time of the trial, this
Court cannot lose sight of the decision of the Hon’ble Apex Court in
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Tofan Singh v. State of Tamil Nadu (supra), wherein it was held that
a disclosure statement made under Section 67 of the NDPS Act is
impermissible as evidence without corroboration. The relevant
paragraphs of the said judgment are set out below :
“155. Thus, to arrive at the conclusion that a confessional
statement made before an officer designated under Section 42 or
Section 53 can be the basis to convict a person under the NDPS
Act, without any non obstante clause doing away with Section 25 of
the Evidence Act, and without any safeguards, would be a direct
infringement of the constitutional guarantees contained in Articles
14, 20(3) and 21 of the Constitution of India.
156. The judgment in Kanhaiyalal then goes on to follow Raj
Kumar Karwal in paras 44 and 45. For the reasons stated by us
hereinabove, both these judgments do not state the law correctly,
and are thus overrules by us. Other judgments that expressly refer
to and rely upon these judgments, or upon the principles laid down
by these judgments, also stand overruled for the reasons given by
us.
157. On the other hand, for the reasons given by us in this
judgment, the judgments or Noor Aga and Nirmal Singh Pehlwan
v. Inspector, Customs are correct in law.
158. We answer the reference by stating:
158.1. That the officers who are invested with powers under
Section 53 of the NDPS Act are “police officers” within the
meaning of Section 25 of the Evidence Act, as a result of which
any confessional statement made to them would be barred under
the provisions of Section 25 of the Evidence Act, and cannot be
taken into account in order to convict an accused under the
NDPS Act.
158.2. That a statement recorded under Section 67 of the NDPS
Act cannot be used as a confessional statement in the trial of an
offence under the NDPS Act.”
(emphasis supplied)
18. It is the case of the prosecution that the applicant is the person
who booked the parcel containing the contraband. This allegation is
primarily based on the statement of Nitin, the booking agent at M/s
A.B. Services, who stated that the applicant had visited the courier
office, introduced himself as ‘Rohit’, and handed over the parcel for
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booking. According to Nitin, the applicant paid ₹1,200 in cash and
also provided an Aadhaar card in the name of ‘Rohit’ for the purpose
of booking. It is further alleged by the prosecution that a photograph
of the said Aadhaar card was found in the mobile phone purportedly
used by the applicant. However, the applicant has categorically
disputed the recovery of any such mobile phone from his possession.
19. Whether the phone belonged to the applicant, and whether the
alleged data was recovered from it, are matters that will be determined
during the course of trial. At this stage, in the absence of any
independent corroboration of Nitin’s version and in light of the
applicant’s specific denial, a doubt is raised which must enure to the
benefit of the applicant for the purposes of bail.
20. The medical condition of the applicant also merits
consideration. As per the medical reports on record, the applicant
suffers from hypertension, seizure disorder with post-ictal amnesia,
deviated nasal septum (DNS) with right concha bullosa, bronchial
asthma, and migraine, among other chronic conditions. Jail records
indicate repeated complaints and hospital visits. Although directions
were issued earlier by this Court for the applicant to undergo DNE
surgery, the procedure has not yet been carried out. In such
circumstances, continued detention, in the absence of effective
medical intervention, would infringe the applicant’s right to health and
dignity.
21. In the case of Salim Valimamad Majothi v. State of Gujarat :
2023 SCC OnLine SC 659, the Hon’ble Apex Court granted bail to
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an accused involved in a case under the NDPS Act by considering his
medical condition as well as the fact that he had been in incarceration
for more than 1 year and 7 months.
22. It is also relevant that the applicant has no prior criminal
antecedents and is not shown to be involved in any other NDPS case.
The investigation stands concluded, the charge-sheet has been filed,
and no further custodial interrogation is warranted. There is no
material to suggest that the applicant would abscond or tamper with
evidence if released on bail.
23. It also cannot be ignored that the present case is one where the
applicant was arrested on 27.10.2023, and despite the passage of
considerable time, charges have not been framed as on the date the
matter was reserved for judgment. The prosecution has listed fifteen
witnesses, and it is evident that the trial is likely to be protracted. In
such circumstances, continued incarceration of the applicant would
amount to pre-trial detention. The right to a speedy trial, guaranteed
under Article 21 of the Constitution, cannot be rendered illusory by
indefinite detention during a pending trial with no foreseeable
conclusion.
24. It is trite law that grant of bail on account of delay in trial and
long period of incarceration cannot be said to be fettered by the
embargo under Section 37 of the NDPS Act. The Hon’ble Apex Court,
in the case of Mohd. Muslim v. State (NCT of Delhi) :2023 SCC
OnLine SC 352 has observed as under:
“21….Grant of bail on ground of undue delay in trial, cannot be
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said to be fettered by Section 37 of the Act, given the imperative of
Section 436A which is applicable to offences under the NDPS
Act too (ref. Satender Kumar Antil supra). Having regard to these
factors the court is of the opinion that in the facts of this case, the
appellant deserves to be enlarged on bail.
22. Before parting, it would be important to reflect that laws
which impose stringent conditions for grant of bail, may be
necessary in public interest; yet, if trials are not concluded in
time, the injustice wrecked on the individual is immeasurable.
Jails are overcrowded and their living conditions, more often than
not, appalling. According to the Union Home Ministry’s response
to Parliament, the National Crime Records Bureau had recorded
that as on 31st December 2021, over 5,54,034 prisoners were
lodged in jails against total capacity of 4,25,069 lakhs in the
country20. Of these 122,852 were convicts; the rest 4,27,165 were
undertrials.
23. The danger of unjust imprisonment, is that inmates are at risk
of “prisonisation” a term described by the Kerala High Court in A
Convict Prisoner v. State21 as “a radical transformation” whereby
the prisoner:
“loses his identity. He is known by a number. He loses
personal possessions. He has no personal relationships.
Psychological problems result from loss of freedom,
status, possessions, dignity any autonomy of personal life.
The inmate culture of prison turns out to be dreadful. The
prisoner becomes hostile by ordinary standards. Self-
perception changes.”
24. There is a further danger of the prisoner turning to crime, “as
crime not only turns admirable, but the more professional the
crime, more honour is paid to the criminal”22 (also see Donald
Clemmer’s ‘The Prison Community’ published in 194023).
Incarceration has further deleterious effects – where the accused
belongs to the weakest economic strata : immediate loss of
livelihood, and in several cases, scattering of families as well as
loss of family bonds and alienation from society. The courts
therefore, have to be sensitive to these aspects (because in the
event of an acquittal, the loss to the accused is irreparable), and
ensure that trials – especially in cases, where special laws enact
stringent provisions, are taken up and concluded speedily.”
(emphasis supplied)
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25. The Hon’ble Apex Court in the case of Man Mandal & Anr. v.
The State of West Bengal : SLP(CRL.) No. 8656/2023 had granted
bail to the petitioner therein, in an FIR for offences under the NDPS
Act, on the ground that the accused had been incarcerated for a period
of almost two years and the trial was likely going to take considerable
amount of time.
26. The Hon’ble Apex Court in Rabi Prakash v. State of Odisha :
2023 SCC OnLine SC 1109, while granting bail to the petitioner
therein held as under :
“4. As regard to the twin conditions contained in Section 37 of the
NDPS Act, learned counsel for the respondent – State has been duly
heard. Thus, the 1st condition stands complied with. So far as the
2nd condition re: formation of opinion as to whether there are
reasonable grounds to believe that the petitioner is not guilty, the
same may not be formed at this stage when he has already spent
more than three and a half years in custody. The prolonged
incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the
Constitution and in such a situation, the conditional liberty must
override the statutory embargo created under Section 37(1)(b)(ii)
of the NDPS Act.”
(emphasis supplied)
27. The respondent has been given an opportunity to be heard. It is
not denied that the primary evidence against the applicant is the
disclosure statements of co-accused persons. Whether the applicant is
involved in the commission of the offences will only be tested after
evidence has been led by the parties. However, at this stage when
charges are yet to be framed despite lapse of around two years, this
Court does not deem it appropriate to make any comments on this
aspect.
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28. From the foregoing, despite the stringent requirements imposed
on the accused under Section 37 of the NDPS Act for the grant of bail,
this Court finds no impediment in granting bail on the ground of
undue delay in the completion of the trial and the medical condition of
the applicant.
29. Various courts have recognized that prolonged incarceration
undermines the right to life, liberty, guarantee under Article 21 of the
Constitution of India, and therefore, conditional liberty must take
precedence over the statutory restrictions under Section 37 of the
NDPS Act.
30. The applicant is stated to be of clean antecedents. This Court is
thus satisfied that the applicant, if released on bail, will not indulge in
similar offence.
31. In view of the aforesaid discussion, this Court is of the opinion
that the applicant has made out a prima facie case for grant of bail.
32. The applicant is, therefore, directed to be released on bail on
furnishing a personal bond for a sum of ₹50,000/- with two sureties of
the like amount, subject to the satisfaction of the learned Trial Court,
on the following conditions:
a. The applicant shall not directly or indirectly make any
inducement, threat or promise to any person
acquainted with the facts of the case or tamper with
the evidence of the case, in any manner whatsoever;
b. The applicant shall under no circumstance leave the
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the Trial Court;
c. The applicant shall appear before the learned Trial
Court as and when directed;
d. The applicant shall, after his release, appear before the
concerned IO once in every week;
e. The applicant shall provide the address where he
would be residing after his release to the concerned IO
and shall not change the address without informing the
concerned IO;
f. The applicant shall, upon his release, give his mobile
number to the concerned IO and shall keep his mobile
phone switched on at all times.
33. In the event of there being any FIR/DD entry / complaint lodged
against the applicant, it would be open to the respondent to seek
redressal by filing an application seeking cancellation of bail.
34. It is clarified that any observations made in the present order are
for the purpose of deciding the present bail application and should not
influence the outcome of the trial and also not be taken as an
expression of opinion on the merits of the case.
35. The bail application is allowed in the aforementioned terms.
AMIT MAHAJAN, J
MAY 28,2025
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