In Bail Appln. 352/2023 -DEL HC- Nigerian national arrested with narcotics denied bail; Delhi High Court says Section 52 of NDPS Act is directory in nature, defects in procedure can be addressed during trial
Justice Dinesh Kumar Sharma [21-09-2023]

Read Order: Kenechukwu Joseph V. The State

Chahat Varma

New Delhi, September 26, 2023: The Delhi High Court has rejected the bail plea of a Nigerian national who was arrested in a case registered under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and Section 14 of the Foreigners Act.

In brief, the case involved the receipt of secret information regarding the transportation of narcotics substances. A specialized team was formed, and surveillance was conducted near Hotel Radisson Blu in Paschim Vihar, Delhi. A person, identified as Kenechukwu Joseph from Nigeria (petitioner), was apprehended. A search led to the discovery of a polybag containing narcotics substances/contraband. As a result, the present case was registered, and the petitioner was arrested.

The single-judge bench of Justice Dinesh Kumar Sharma observed that a careful examination of Section 37 of the NDPS Act reveals that, before granting bail to the accused, the court must establish that there were reasonable grounds to believe the accused was not guilty of the alleged offense. Additionally, the court must be satisfied that the accused is unlikely to commit any further offenses upon release from custody.

The bench cited the case of State of Punjab v. Balbir Singh [LQ/SC/1994/291], where the Supreme Court addressed the issue of defects in sampling. The court clarified that Sections 52 and 57 of the Act come into play after the arrest and seizure have occurred. It was emphasized that if there is any violation of these provisions, the court must assess the impact of such violations. Regarding whether the provisions of the Act following an arrest or search are to be considered mandatory or directory, the court noted that provisions creating a public duty are generally treated as directory.

The bench also referred to Quentin Decon v. Customs [LQ/DelHC/2023/3061], where a Co-ordinate bench had emphasized that Section 52 of the NDPS Act is of a directory nature. The court had further ruled that non-compliance with this provision alone cannot invalidate the actions of the investigating officers.

Thus, the bench concluded that the issues raised by the petitioner's counsel regarding the defect in sample withdrawal, contradictions in sample weight, FSL reports, and sealing should be addressed during the trial proceedings before the Special Judge.

Based on the above considerations, the court determined that the petitioner was not eligible for bail. Consequently, the present bail application was rejected.