The bail request of a Nigerian citizen, who was detained in a case involving violations of Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and Section 14 of the Foreigners Act, was denied by the Delhi High Court today.

A judge sitting alone, Justice Dinesh Kumar Sharma, has noted that according to Section 37 of the NDPS Act, it is evident that, before granting bail to the accused, the court must establish a belief based on reasonable grounds that the accused is not culpable for the alleged offense and that there is little likelihood of the accused committing any further offenses upon release from custody.

According to the summary, the case revolved around receiving confidential information about the transportation of illegal narcotics. In response, a specialized team was assembled and conducted surveillance in the vicinity of the Radisson Blu Hotel in Paschim Vihar, Delhi. During this operation, an individual named Kenechukwu Joseph from Nigeria, who is the petitioner in this case, was apprehended. A subsequent search of his belongings led to the discovery of a polybag containing narcotics substances or contraband. Consequently, the current case was registered, and the petitioner was arrested.

Following a thorough evaluation of the submissions and a detailed review of Section 37 of the NDPS Act, the Bench observed that, prior to granting bail to the accused, the court must ascertain that there were sufficient grounds to believe that the accused was not culpable for the purported offense.

Moreover, the Bench emphasized that it is also imperative for the court to be convinced that the accused is unlikely to engage in any additional criminal activities once released from detention.

The Bench went on to note that issues related to the withdrawal of the sample, contradictions concerning the sample's weight, FSL (Forensic Science Laboratory) reports, and seal, are all matters that should be addressed and examined during the trial proceedings. These issues are to be determined and resolved as part of the trial process.

The Bench made a reference to the case of State of Punjab v. Balbir Singh [(1994) 3 SCC 299], in which the Supreme Court clarified that Sections 52 and 57 of the NDPS Act are applicable after the arrest and seizure have taken place. If there is any breach of these provisions, the court should evaluate the consequences of such violations.

The Bench also highlighted that when it comes to determining whether the provisions of the Act following an arrest or search should be regarded as mandatory or directory, provisions that establish a public duty are typically construed as directory rather than mandatory.

The Bench additionally cited the case of Quentin Decon v. Customs [BAIL APPLN. 71/2022], in which a Co-ordinate bench underscored that Section 52 of the NDPS Act is of a directory nature. It was emphasized that the non-compliance with this provision alone cannot invalidate the actions of the investigating officers.

In conclusion, the High Court determined that the concerns raised by the petitioner's counsel regarding the flaws in sample withdrawal, discrepancies in sample weight, FSL reports, and sealing should be examined and resolved in the course of the trial proceedings before the Special Judge. These issues should be deliberated upon and decided in the appropriate legal forum during the trial.

Taking into account these considerations, the High Court reached the decision that the petitioner was not eligible for bail. As a result, the bail application in question was denied.

Case: Kenechukwu Joseph v. The State, BAIL APPLN. 352/2023.