Delhi High Court – Orders
Frank Cliff vs The State Govt. Of Nct Of Delhi & Anr on 18 July, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1268/2025, CRL.M.A. 9893/2025
FRANK CLIFF .....Petitioner
Through: Mr. Tanvir Quiser, Advocate.
versus
THE STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Tarang Srivastava, APP for State
with Ms. Sangeeta Malik, SI and
Mr. Kishan Chand, SI, PS-Bindapur,
Delhi.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 18.07.2025
1. The present application filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (formerly Section 439 of the Code of
Criminal Procedure, 1973)1 seeks regular bail in FIR No. 397/2022,
registered at P.S. Binda Pur, for the offences under Sections 8 and 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985.2
2. Briefly stated, the case of the Prosecution is as follows:
2.1. On 21st May, 2022, intelligence was received at the office of
CAIFAN-1,3 Dwarka, indicating that between approximately 10:10 PM and
10:20 PM, a foreign national identified as Frank, allegedly involved in the
distribution of Heroin, was expected to deliver a consignment of the1
“Cr.P.C.”
2
“NDPS Act”
3
Now, Anti-Narcotics Cell
BAIL APPLN. 1268/2025 Page 1 of 8
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contraband to an individual near Metro Pillar No. 764, in front of Samadhi
Sathal, Najafgarh Road, Delhi. It was conveyed that, if a timely raid were
conducted, the suspect could be apprehended in possession of the narcotic
substance.
2.2. Pursuant to this information, a raiding team was constituted and,
accompanied by the secret informant, proceeded to the specified location.
Upon arrival, the informant identified the suspect (the Applicant), who was
carrying a blue-coloured laptop bag. The suspect was immediately
intercepted and was duly informed of the identity of the raiding personnel as
well as the purpose of the investigation.
2.3. Subsequently, a notice under Section 50 of the NDPS Act was served
upon the Applicant, informing him of his legal rights. Thereafter, Sh. Harish
Kukreti, Assistant Commissioner of Police, Dabri, arrived at the location. In
his presence, a search of the Applicant was conducted, during which a white
polythene bag tied with a knot was recovered from the laptop bag in his
possession. the bag was found to contain a white, crystal-like substance,
which, upon preliminary testing with a field-testing kit, was confirmed to be
Heroin, weighing 500 grams. Furthermore, the Applicant failed to produce a
valid Indian visa or passport. As a result, the subject FIR was registered, and
the Applicant was formally arrested on 22nd May, 2022.
2.4. The recovered samples were deposited at FSL, Rohini, and the expert
analysis confirmed the presence of Heroin in the seized substance.
2.5. Upon completion of the investigation, a chargesheet was filed before
the Trial Court. Charges were framed against the Applicant under Section
21(c) of the NDPS Act and Sections 14A and 14B of the Foreigners Act,
1946.
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3. In the aforesaid factual background, counsel for the Applicant makes
the following submissions seeking grant of regular bail:
3.1. The Applicant is innocent and has been falsely implicated in the
instant case.
3.2. The Applicant was arrested on 22nd May, 2022, and has remained in
custody for a period of 2 years, 11 months, and 23 days as of 14 th May,
2025. It is submitted that the prolonged period of incarceration, without
conclusion of trial, entitled him to grant of bail. In support of this
contention, counsel refers to several decisions wherein this Court has
granted bail in NDPS cases primarily on the ground of prolonged period of
incarceration. Particular reliance is placed on the decision of this Court in
Victo Vecent Joseph v. State of NCT of Delhi.4
3.3. It is further contended that the search and seizure in the present case
were conducted by a Head Constable, in contravention of the provisions of
Section 42 of the NDPS Act. The violation of this statutory requirement, it is
submitted, vitiates the recovery process.
3.4. The Applicant has a clean past record with no criminal antecedents to
his credit.
4. It is pertinent to note that although the Applicant has raised several
other grounds in the bail application regarding procedural lapses in the
search and seizure, the arguments addressed before this Court have been
confined to two principal grounds: (i) prolonged period of incarceration; and
(ii) non-compliance with Section 42 of the NDPS Act.
5. Mr. Tarang Srivastava. APP for the State, on the other hand, strongly
opposes the present bail application, and raises the following grounds:
4
BAIL APPLN. 2570/2024.
BAIL APPLN. 1268/2025 Page 3 of 8
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5.1. The contraband recovered from the Applicant comprises 500 grams of
Heroin, which qualifies as commercial quantity. Therefore, the Applicant is
required to satisfy the twin conditions prescribed under Section 37 of the
NDPS Act.
5.2. With respect to the judicial precedents cited by the Applicant
concerning the grant of bail on the ground of prolonged incarceration, it is
contended that in each of those cases, the Court took into consideration the
entirety of the facts and circumstances, and not merely the length of custody,
before granting bail.
5.3. The search and seizure in this case were conducted in the presence of
the Assistant Commissioner of Police, Dabri, thereby ensuring due
compliance with Section 42 of the NDPS Act.
5.4. Furthermore, an independent witness was present during the recovery
process, and his statement was recorded under Section 161 of the Cr.P.C.,
wherein he supported the case of the Prosecution. The said witness is yet to
be examined before the Trial Court. The State apprehends that granting bail
to the Applicant at this stage may lead to intimidation or influence over the
witness, which would adversely affect the ongoing trial.
6. The Court has considered the facts of the case and the contentions
advanced by the parties. While evaluating a bail application, the Court must
consider several factors, including whether there is a prima facie case or
reasonable grounds to believe the accused has committed the offence, the
likelihood of the accused repeating the offence, the nature and seriousness of
the accusation, the severity of the potential punishment upon conviction, the
risk of the accused absconding or fleeing if granted bail and the reasonable
apprehension of witnesses being intimidated by the accused.
BAIL APPLN. 1268/2025 Page 4 of 8
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7. The Supreme Court has consistently held that denial of bail is the rule
and its grant is an exception under Section 37(1)(b)(ii) of the NDPS Act.5 In
the instant matter, the contraband recovered from the Applicant comprises
heroin weighing 500 grams, which qualifies as commercial quantity.
Therefore, the Applicant has to satisfy the twin conditions under Section 37
that: (i) that there are reasonable grounds to believe that the accused is not
guilty of the offence, and (ii) that the accused is not likely to commit any
offence while on bail.
The Test of Reasonable Grounds to Believe that the Accused is Not Guilty
of the Offence
8. In the present case, a commercial quantity of contraband was
recovered from a white polythene bag found inside the laptop bag in the
possession of the Applicant, thereby establishing a direct connection
between the Applicant and the alleged offence. Although the Applicant has
alleged procedural irregularities in the process of search and seizure, the
Prosecution has satisfactorily addressed these concerns in its status report,
explaining that the search and seizure were conducted in compliance with
the statutory requirements, including, inter alia, the service of notice under
Section 50 of the NDPS Act, the Applicant being duly informed of his legal
rights, and the search being conducted in the presence of an independent
witness.
9. In response to the Applicant’s contention that the search was
conducted by a Head Constable in violation of Section 42 of the NDPS Act,
Mr. Tarang Srivastava, APP for the State, has clarified that the entire
operation was carried out in the presence of Sh. Harish Kukreti, Assistant
5
State of M.P. v. Kajda, (2001) 7 SCC 673.
BAIL APPLN. 1268/2025 Page 5 of 8
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Commissioner of Police, Dabri, thereby ensuring compliance with Section
42 and negating any allegation of procedural impropriety.
10. Moreover, it is pertinent to note that an independent witness was part
of the raiding team at the time of the Applicant’s apprehension. The said
witness has supported the Prosecution’s case in his statement recorded under
Section 161 of the Cr.P.C. However, the witness is yet to be examined
before the Trial Court. In view of the foregoing, there exists a reasonable
apprehension that enlargement of the Applicant on bail at this stage may
lead to intimidation or undue influence upon the said witness, thereby
adversely affecting the ongoing trial.
11. In view of the aforementioned facts and circumstances, this Court is
of the considered opinion that that the first requirement under Section 37 of
the NDPS Act is not satisfied, as there do exist reasonable grounds to
believe that the Applicant is prima facie guilty of the offence alleged under
the Act.
Prolonged incarceration
12. Counsel for the Applicant has further contended that the Applicant
has been in judicial custody for a period of approximately three years, and
on that ground alone, ought to be released on bail due to the prolonged
duration of incarceration. While this Court is cognizant of the fact that this
Court and other courts have, in appropriate cases, taken into consideration
the length of custody while adjudicating bail applications, it must be
emphasised that period of custody cannot be considered in isolation, and
must be evaluated in the context of the totality of facts and circumstances of
each case.
13. For instance, the Applicant has placed specific reliance on a judgment
BAIL APPLN. 1268/2025 Page 6 of 8
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of this Court in Victo Vecent Joseph, wherein bail was granted to an
accused charged under Section 21 of the NDPS Act. However, the facts of
that case are clearly distinguishable and inapplicable to the present matter.
In the said case, while the Court did take into account that the accused had
remained in custody for over three years, it also noted that there was a
material procedural lapse, namely, non-compliance with Section 42(2) of the
NDPS Act, as the Daily Diary entry was not forwarded to the superior
officer, as mandated under the said provision. On account of this procedural
violation, along with other relevant considerations, the Court was satisfied
that the twin conditions under Section 37 of the NDPS Act stood fulfilled,
thereby justifying the grant of bail to the accused.
14. In contrast, in the present case, as already discussed hereinabove, the
Applicant has failed to satisfy the first condition under Section 37 of the
NDPS Act, namely, that there are reasonable grounds for believing that he is
not guilty of the alleged offence. This materially distinguishes the present
matter from the case of Victo Vecent Joseph, and accordingly, bail cannot
be claimed solely on the ground of prolonged incarceration.
15. At this juncture, it is apposite to underscore that this Court is also
conscious of the constitutional mandate under Article 21 of the Constitution
of India, which guarantees the fundamental right to life and personal liberty.
However, such a right is not unqualified, and must be balanced against the
larger societal interest, particularly in matters involving serious narcotic
offences. The magnitude of the contraband recovered, the grave nature of
the allegations, and the overarching public interest in curbing drug
trafficking tilt the scale against the grant of bail in the present case.
16. In light of the foregoing facts and circumstances, the Court is of the
BAIL APPLN. 1268/2025 Page 7 of 8
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opinion that the Applicant has not been able to overcome the threshold for
grant of bail under Section 37 of NDPS Act, and is accordingly, not entitled
to be released on bail.
17. Needless to state, any observations concerning the merits of the case
are solely for the purpose of deciding the question of grant of bail, and shall
not be construed as an expression of opinion on the merits of the case.
18. Accordingly, the bail application is dismissed, along with pending
application.
SANJEEV NARULA, J
JULY 18, 2025
nk
BAIL APPLN. 1268/2025 Page 8 of 8
This is a digitally signed order.
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