Delhi High Court
Urukapa Ahmed @ Babadon @ William @ … vs State Nct Of Delhi on 3 March, 2025
Author: Swarana Kanta Sharma
Bench: Swarana Kanta Sharma
$~75
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 03.03.2025
+ BAIL APPLN. 3543/2024, Crl. M.A. Nos.29644/2024 &
34718/2024
URUKAPA AHMED @ BABADON @ WILLIAM
@ JOSEPH .....Petitioner
Through: Mr. Chetan Bhardwaj, Ms
Priyal Bhardwaj and Mr.
Dhanush Kumar, Advocates
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Manoj Pant, APP for the
State for the State
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J. (ORAL)
1. The present bail application has been filed on behalf of the
applicant, seeking grant of regular bail in case arising out of FIR No.
146/2021, registered at Police Station Crime Branch, Delhi, for
offences punishable under Sections 21/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 [hereafter „NDPS Act‟] and
Section 14 of the Foreigners Act, 1946.
2. Briefly stated, the facts of the case are that on 29.07.2021, ASI
Sanjay Kumar, posted at office of SOS-I, Crime Branch, Prashant
Vihar, had received a secret information that one African citizen,
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who introduces himself as William, used to supply narcotic substance
i.e. Heroin in Delhi NCR, and he could be apprehended at about 4
PM in Uttam Nagar area, where he would come to deliver a
consignment of Heroin. Pursuant to same, a raiding team was
constituted and the same had reached Uttam Nagar, near metro pillar
number 768, at about 3:30 PM. It is alleged that at about 5:30 PM,
one person had come on a scooty and taken out a packet from its
boot, and handed over the same to another person, who had kept the
same in his pant‟s pocket. The person who had received the said
packet was identified as William by the secret informer. The police
party had then apprehended both the accused persons. William had
disclosed his name as Uruakpa Ahmed @ Babadon @ William @
Joseph and the person who had handed over the packet to him had
disclosed his name as Frank @ Michael. After complying with the
mandatory provisions of NDPS Act, including serving a notice under
Section 50 of NDPS Act upon the accused persons, their personal
search was conducted. 320 grams of Heroin was recovered from the
possession of present applicant Uruakpa Ahmed, and 310 grams of
Heroin was recovered from the possession of co-accused Frank. The
said substances had been tested using the NDPS Field Testing Kit.
Eventually, the accused persons were arrested and present FIR was
registered.
3. The learned counsel appearing for the present
accused/applicant submits that the applicant has been falsely
implicated in the present case, and he is a victim at the hands of the
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investigating agency as they have fabricated the case and falsely
implicated him merely because he is a foreign national. It is
submitted that the applicant has undergone more than 3 years and 6
months in judicial custody and only 1 witness has been examined out
of 21 witnesses. It is further contended that since the trial is not going
to be concluded soon, the incarceration of the applicant due to delay
in trial clearly violates Article 21 of the Constitution of India. It is
also submitted that the compliance of notice under Section 50 of the
NDPS Act has not been made as the word „nearest‟ has not been
mentioned in the notice served upon the applicant. It is thus prayed
that the applicant be granted regular bail.
4. On the other hand, the learned APP for the State argues that
the applicant herein was arrested after complying with all the
mandatory provisions of the NDPS Act. It is contended that
commercial quantity of narcotic substance i.e. Heroin, each, was
recovered from the possession of the present applicant as well as the
co-accused. The learned APP for the State further submits that the
applicant was actively involved in the distribution and sale of
narcotic substances in collaboration with other co-accused persons,
and the same is also evident from his previous involvements of
similar nature. It is argued that given the nature of the offence and the
commercial quantity of contraband involved, the stringent provisions
of Section 37 of the NDPS Act would apply. In light of these
submissions, it is prayed on behalf of the State that the present bail
application be dismissed.
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5. This Court has heard arguments addressed on behalf of both
the parties, and has perused the material placed on record by either
side.
6. In the case at hand, the applicant herein was apprehended with
commercial quantity of narcotic substance i.e 320 grams of Heroin, at
the spot by the raiding team. The co-accused Frank was also
apprehended with commercial quantity of Heroin i.e. 310 grams.
Concededly, the alleged recovery made from the applicant is
commercial quantity and therefore, bar under Section 37 of the NDPS
Act would be attracted. Therefore, the twin conditions under Section
37 of the NDPS Act will have to be satisfied by the applicant so as to
entitle him to grant of bail. The said twin conditions are : first, that
the accused is not guilty of the offence, and second, that he is
unlikely to commit a similar offence if released on bail. For
reference, Section 37 of the NDPS Act is set out below:
“37. Offences to be cognizable and non-bailable.
(1) 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 9 or section 24 or section 27A
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 opposes the
application, the court is satisfied that there areSignature Not Verified BAIL APPLN.3543/2024 Page 4 of 8
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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.”
7. The Hon’ble Supreme Court in Narcotics Control Bureau v.
Mohit Aggarwal: 2022 SCC Online SC 891, while explaining the
meaning of ‘reasonable grounds’ under Section 37(1)(b) of NDPS
Act, has held as under:
“14. To sum up, the expression “reasonable grounds”
used in clause (b) of Sub-Section (1) of Section 37
would mean credible, plausible and grounds for the
Court to believe that the accused person is not guilty
of the alleged offence. For arriving at any such
conclusion, such facts and circumstances must exist in
a case that can persuade the Court to believe that the
accused person would not have committed such an
offence. Dove-tailed with the aforesaid satisfaction is
an additional consideration that the accused person is
unlikely to commit any offence while on bail.
8. In the case of Union of India v. Prateek Shukla: (2021) 5
SCC 430 as well as State v. Lokesh Chadha: (2021) 5 SCC 724, it
was held by the Hon‟ble Supreme Court that the provisions of
Section 37 of NDPS Act have to be applied strictly at the time of
deciding bail application of an accused.
9. As evident from the chargesheet placed on record, the
applicant herein was arrested at the spot, pursuant to receipt of secret
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information, and recovery of commercial quantity of Heroin was
affected from him. The FSL report supports the case of prosecution,
since the exhibits were found containing „Diacetylmorphine‟,
„Acetaminophen‟, „Caffeine‟, „Dextromethorphan‟,
„Acetylcopdeine‟, and „Monoacetylmorphine‟.
10. Further, as per prosecution, all mandatory provisions of the
NDPS Act were complied with at the time of search and arrest of the
applicant. Insofar as the argument of the learned counsel for the
applicant regarding some discrepancies in notice under Section 50 of
NDPS Act is concerned, this Court is of the view that the same is a
matter of trial [as held by the Hon‟ble Supreme Court in Vijaysinh
Chandubha Jadeja v. State of Gujarat: (2011) 1 SCC 609], and
cannot be a ground for bail, especially when the recovery of
commercial quantity of narcotic substance was affected from him.
Similarly, the argument regarding delay of a few days in forwarding
the samples of seized Heroin to the FSL and there being violation of
Section 52A of the NDPS Act also cannot be a ground for grant of
regular bail, as held by the Hon‟ble Supreme Court in Narcotics
Control Bureau v. Kashif: 2024 SCC OnLine SC 3848. Therefore, at
this stage, there is no reasonable ground to believe that the applicant
has not committed the offence in question, for the purpose of
satisfaction of first condition under Section 37 of NDPS Act.
11. Insofar as the second condition under Section 37 of NDPS Act
is concerned, this Court‟s attention has been drawn to the fact that
applicant herein has previous involvement in two other FIRs of
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similar nature, registered for offences under Sections 21/29 of NDPS
Act, at P.S. Special Cell i.e FIR No. 39/2009 and FIR No. 45/2015.
Thus, there is no ground to believe that the applicant will not commit
a similar offence again, if he is released on bail. Therefore, the
applicant clearly fails to fulfil the twin conditions under Section 37 of
NDPS Act.
12. It is also material to note that the applicant is a Nigerian
national and he could not produce any valid Passport or Visa after he
was apprehended by the investigating agency, and accordingly,
Section 14 of the Foreigners Act was also invoked in the present
case. Further, co-accused Frank, who was granted interim bail on
medical grounds on 25.04.2022, had misused the liberty and had
absconded, and proceedings against him had been initiated under
Section 82 of Cr.P.C.
13. In view of the foregoing discussion, this Court is not inclined
to grant regular bail to the applicant at this stage.
14. However, the learned Trial Court is directed to expedite the
recording of evidence in this case, since the applicant has been in
judicial custody for more than three and half years.
15. With above directions, the present bail application is
dismissed. Pending applications also stand disposed of.
16. Nothing expressed hereinabove shall tantamount to an
expression of opinion on the merits of the case.
17. A copy of this order be forwarded to the concerned Trial Court
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for information.
18. The order be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
MARCH 3, 2025/A
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By:ZEENAT PRAVEEN
Signing Date:11.03.2025
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