Delhi High Court – Orders
Mohd Ahsan vs Customs on 22 July, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1136/2021
MOHD AHSAN .....Petitioner
Through: Mr. Amjad Khan, Advocate
versus
CUSTOMS .....Respondent
Through: Mr. Satish Aggarwala, Sr. Standing
Counsel
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 22.07.2025
1. The present application filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 20231 (formerly Section 439 of the Code of
Criminal Procedure, 19732) seeks regular bail in the proceedings arising
from Complaint Case No. 62/2020 registered under Sections 21 (c) and 23
(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 at P.S.
Customs (IGI Airport, Delhi).
2. Briefly stated, the facts of the case of the Prosecution are as follows:
2.1. The Applicant was scheduled to travel to Saudi Arabia on Flight No.
SV761/04 on 4th August, 2019, when he was intercepted by security
personnel at Indira Gandhi International Airport, New Delhi. Owing to the
suspicions raised by the security staff, he was handed over to the
representatives of Saudi Arabian Airlines, who subsequently transferred1
“BNSS”
2
“Cr.P.C.”
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him, along with his baggage, to the Customs Authorities for further
investigation.
2.2. A notice under Section 50 of the NDPS Act was served on the
Applicant, and his personal search was conducted. However, no
incriminating material was recovered from his person.
2.3. Thereafter, upon unsealing the Applicant’s baggage, two large packets
wrapped in brown adhesive tape were found concealed therein. Upon
opening the first packet, 55 bottles of Phensedyl were recovered. The second
packet was found to contain an identical quantity of 55 bottles of Phensedyl.
The bottles from each packet were segregated, properly packed in
corrugated boxes, and marked as P-1 and P-2, respectively. Each of the
recovered bottles was found to contain Codeine Phosphate, which is
classified as a manufactured drug under the NDPS Act.
2.4. Samples from the seized material were drawn and dispatched to the
chemical laboratory for analysis. As per the laboratory report dated 1 st
October, 2019, all samples tested positive for the presence of Codeine
Phosphate. The seizure constituted a commercial quantity, amounting to
11,000 ml of the narcotic drug, contained within 110 bottles of Phensedyl
Cough Linctus, each of 100 ml capacity.
2.5. Pursuant to the foregoing, Complaint Case No. 62/2020, was filed
before the Special Judge (NDPS) Dwarka Courts. Charges were framed
against the Applicant for offences under Section 21 (c) and 23 (c) of the
NDPS Act for possession of narcotics substances.
3. On 25th June, 2021, when the present application was listed for
hearing before this Court, counsel for the Customs, placing reliance upon the
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judgment of the Supreme Court in Hira Singh v. Union of India,3
contended that for the purposes of determining whether the recovered
substance comprises “small” or “commercial” quantity, the total weight of
the manufactured drug or preparation, including the neutral substance, is to
be taken into consideration. Conversely, counsel for the Applicant, relying
on the judgment of this Court in Iqbal Singh v. State,4 argued that only the
actual weight of Codeine present in each bottle should be considered for
such determination, which, in the present case, would classify the
contraband as an “intermediate” quantity. The Court was therefore, faced
with the question as to whether the presence of only 0.17% Codeine content
per bottle would qualify the substance as a “commercial quantity.”
4. In this context, noting that the judgment of this Court in Iqbal Singh
was contrary to the plain reading of the judgement of Supreme Court in Hira
Singh, this Court considered it appropriate to make a reference to a Division
Bench in order to rule out any ambiguity. Pending the outcome of this
reference, the Applicant was granted interim bail for a period of 90 days.
This interim relief was subsequently extended from time to time while the
reference remained under consideration before the Division Bench.
5. Subsequently, the Division Bench, by judgment dated 16th September,
2022, answered the reference in the following terms:
“46. In view of the foregoing analysis of various provision of the NDPS
Act, NDPS Rules, The Drugs and Cosmetics Act and the Drugs and
Cosmetics Rules and the judgments referred to, we answer the reference
in the following terms:
Question – “(c) whether Note 4 of the S.O. 1055 (E) dated 19th
October, 2001 published in the Gazette of India,. Extra., Pt.II, Sec3 (ii)
dated 19th October 2001, as amended on 18.11.2009, should be made3
(2020) SCC OnLine SC 382.
4
BAIL APPLN.645/2020, decided on 31st July, 2020.
BAIL APPLN. 1136/2021 Page 3 of 7
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applicable to cough syrups containing miniscule percentage of Codeine
since it has medicinal value and is also easily available?”
Ans: If the contraband recovered in a particular case is covered by
Rule 52A of the NDPS Rules made under Section 9(1)(a)(va) of the
NDPS Act, then violation of the said Rules would be punishable under
the NDPS Act. In that situation, Note 4 of the S.O. 1055 (E) dated 19th
October, 2001 would be applicable to such substances including cough
syrup.
“47. As far as the questions (a) and (b) referred to us by the learned
Single Judge are concerned, the same are squarely covered by the
judgment of the Hon’ble Supreme Court in Hira Singh (supra) wherein
the Hon’ble Supreme Court was disposing of a reference as well as a
challenge to the validity of notification bearing no. S.O. 2941(E) dated
18.11.2009, adding ‘Note 4’ to the notification bearing no. S.O. 1055(E)
dated 19.10.2001. The Hon’ble Supreme Court in Hira Singh (supra) has
clearly held as under:
“12.2. In case of seizure of mixture of narcotic drugs or
psychotropic substances with one or more neutral substance(s), the
quantity of neutral substance(s) is not to be excluded and to be
taken into consideration along with actual content by weight of the
offending drug, while determining the “small or commercial
quantity” of the narcotic drugs or psychotropic substances.”
48. In view of the aforesaid decision, the questions (a) and (b) referred to
us are answered as follows:
Question – “(a) whether in cases specifically related to
manufactured drug with a miniscule percentage of a narcotic
substance, the weight of the neutral substance ought to be ignored
while determining the nature of the quantity seized i.e. small,
commercial or in between?”
Ans: If the contraband seized falls within the provisions of NDPS
Act, the weight of the neutral substance would not be ignored while
determining the nature of the quantity seized, whether small quantity,
commercial quantity or in between.
Question – “(b) whether Note 4 of the S.O. 1055 (E) dated 19th
October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii)
dated 19th October 2001, as amended on 18.11.2009, should be held
inapplicable to manufactured drug which contain a miniscule
percentage of a narcotic drug?”
Ans: If the alleged contraband seized falls within the definition of
„manufactured drug‟ under Section 2(xi) of the NDPS Act, then the
entire notification including the aforesaid „Note 4‟ will be applicable.
49. Having answered the questions referred to us, this matter may be
placed before the appropriate bench for considering the question of
grant of bail.”
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6. A perusal of the aforementioned observations reveals that the
Division Bench has answered the questions framed by the Single Judge in
favour of the Prosecution. While delivering the said judgment, the Division
Bench had also specifically directed that the Applicant’s bail application be
listed for consideration before the appropriate Bench. However,
notwithstanding these directions, the Registry failed to place the matter for
hearing on the bail application.
7. Subsequently, upon noticing this lapse, the Registry listed the matter
before this Court on 17th February, 2025. On the said date, while seeking an
explanation from the Registry for the delay, this Court, in view of the
peculiar facts and circumstances of the case, extended the interim bail
granted to the Applicant on the same terms and conditions as previously
imposed. The Prosecution has now filed its reply to the bail application,
opposing the grant of regular bail to the Applicant.
8. The Court has heard counsel for both parties and carefully considered
their respective submissions. In the present case, although the issues referred
to the Division Bench have been answered in favour of the Customs
Department, it is pertinent to note that the Applicant has remained on
interim bail since 25th June, 2021. The said interim bail has been extended
from time to time, and at no point has the Applicant violated any of the
conditions imposed by this Court. The Applicant has diligently complied
with all directions of this Court and has appeared before the Trial Court on
each and every date of hearing without fail. Further, the Prosecution has not
levelled any allegation against the Applicant suggesting misuse of the liberty
granted to him.
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9. Furthermore, since the filing of the present application, the trial has
progressed significantly, and the matter is presently at the stage of recording
prosecution evidence. The order of the Trial Court, annexed with the reply
filed by the Customs, clearly reflects that some of the prosecution witnesses
have already been examined.
10. It is well established through catena of judgments by the Supreme
Court that the object of granting bail is neither punitive nor preventative.
The primary aim sought to be achieved by bail is to secure the attendance of
the accused person at the trial.5 In the present case, the Applicant has not
absconded at any point and has fully cooperated with the legal process.
There are no allegations of tampering with evidence or attempting to
influence witnesses. In light of the foregoing facts and circumstances, and
taking into consideration the overall conduct of the Applicant, the
substantial passage of time, the advanced stage of the trial, and the fact that
the Applicant has remained on interim bail throughout without misusing the
liberty granted, this Court is of the considered view that the Applicant is
entitled to be released on regular bail.
11. Accordingly, the Applicant is admitted to regular bail on the same
terms and conditions as those set forth in the interim bail order dated 25 th.
June, 2021.
12. 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.
13. Copy of the order be sent to the concerned Jail Superintendent for
5
See also: Sanjay Chandra v. CBI, (2012) 1 SCC 40; Satender Kumar Antil v. Central Bureau of
Investigation, (2022) 10 SCC 51.
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necessary information and compliance.
14. In view of the above, the present application is allowed and disposed
of.
SANJEEV NARULA, J
JULY 22, 2025/ab
BAIL APPLN. 1136/2021 Page 7 of 7
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