In a bail application filed before the Delhi High Court regarding a First Information Report (FIR) filed under Section 20/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), a Single Judge Bench of Justice Girish Kathpalia refused bail to the applicant and dismissed the application.
On 17-01-2025, the applicant was apprehended from a second floor flat in Kotla Mubarakpur, New Delhi, following specific named secret information. During the search, investigators recovered two packets containing 1.516 kg of charas, converted the contraband into a parcel, and sealed it with the seal of the Investigating Officer. During interrogation, the applicant disclosed that he was a native of Nepal who procured charas from a co-accused person. The bail was argued for on two grounds: first, that discrepancies in the register and the malkhana deposit vitiated the recovery proceedings, and second, that the failure to furnish written grounds of arrest violated the fundamental rights of the accused.
The Court noted that since the quantity of charas allegedly recovered from the applicant was a commercial quantity, the twin conditions stipulated under Section 37 would come into play. Regarding the entries in the Register, it was stated that the relevant page of the register bore endorsement of the SHO regarding the countersealing of the parcels with his seal. Hence, the Court did not find this to be a reasonable ground to believe that the applicant was innocent.
Regarding the non-supply of grounds of arrest, the Court perused various judicial precedents and stated that Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973 (CrPC) did not explicitly prescribe a format of grounds of arrest and/or the timeframe for communication of the same to the arrestee. It was stated that where written grounds cannot be furnished before the arrest, they must be supplied to the accused at least two hours prior to his production before the magistrate for remand. Further, the Court noted that where it is reflected that the accused was aware of the reasons of his arrest, was legally represented, and applied for bail shortly after arrest, it shows an immediate and informed understanding of the allegations.
The Court stated that the applicant was arrested on 17-01-2025, while the legal position regarding the impact of non-supply of written grounds of arrest was elucidated with clarity by the Supreme Court in Mihir Rajesh Shah v. State of Maharashtra & Anr. 2025 INSC 1288, decided on 06-11-2025. It was stated that the fundamental rights of the accused are sacrosanct but so are those of the rest of the society. The Court refused to ignore the ground realities of the difficulties faced by the police to arrest an accused and the hard task upon them to prevent further expanse of the crime.
The Court stated the Delhi Police improvised the arrest memo to deal with the urgency of the situation and noted that the memo was duly served on the applicant. It was mentioned that the format was made by the police in honest understanding of the legal position and if the same was defective, the applicant could not claim the right to be released. The Court noted that the compliance with the requirement to furnish grounds of arrest was substantial, as the generic reasons mentioned in paragraph nine of the arrest memo functioned effectively as grounds.
The Court further noted that no demonstrable prejudice was caused to the applicant, who was immediately provided legal assistance upon being produced before the Special Judge for remand. It was stated that had the applicant not been remanded by the Special Judge, opportunities would have been presented to him on platter to ensure that neither the supplier nor the subsequent purchasers could be apprehended by the police.
The Court was unable to accept that it would be advisable to release the polluted element back to the society in view of the practical ground realities, only to be taken back into custody after completing the paperwork. It was stated that the pernicious impact of drug peddling extends far beyond provision of synthetic euphoria to consumers and erosion of collective productivity. The Court stated that the illicit wealth through drug trade fuels crime and is a grave threat to society. Highlighting the gravity of the offence, the high probability of the accused absconding to Nepal, and the impact of drug peddling on national security, the Court found it an unfit case for bail and dismissed the application.
