The Delhi High Court, in Mohan Babu Gupta v. State (NCT of Delhi), granted regular bail to an accused booked under the NDPS Act, holding that non-compliance with mandatory procedural safeguards governing search and seizure significantly diluted the prosecution’s case.
The petitioner had been in custody since November 2022 in connection with an FIR alleging recovery of 360 grams of heroin classified as commercial quantity. While the State opposed bail citing the rigours of Section 37 of the NDPS Act and intercepted communications linking the accused to co-conspirators, the Court found serious procedural lapses in the manner of investigation.
A key factor was that the alleged recovery was effected after sunset (around 5:40 PM), whereas sunset on the relevant date was recorded at 5:28 PM. The Court noted that under the second proviso to Section 42(1) of the NDPS Act, a search conducted between sunset and sunrise mandates prior recording of ‘grounds of belief’. No such record was produced, nor was it forwarded to a superior officer as required under Section 42(2).
Additionally, the Court found that no valid authorisation under Section 41 of the NDPS Act had been obtained for the accused’s search or arrest. The ACP’s endorsement merely noted having ‘seen’ the disclosure statement of a co-accused, without granting any formal approval. This, coupled with testimony confirming absence of authorisation, further weakened the prosecution’s case.
Emphasising the strict procedural framework under Chapter V of the NDPS Act, the Court reiterated that where the law prescribes a manner of doing an act, it must be followed strictly. The Court also took note of prolonged incarceration over three years with only one out of 29 witnesses examined, holding that continued detention would infringe the accused’s right to speedy trial under Article 21.
The Court also at para 24 of the Judgment noted that
“Considering the serious consequences that attach to offences under the NDPS Act, the Legislature, in its wisdom, has thought it appropriate to meticulously provide for the requirement of authorisation from superior officials for entry, search, seizure and arrest, while at the same time allowing for entry, search, seizure and arrest at times when it may not
be practicable or desirable to await such authorisation subject however to other very specific requirements that must be adhered-to at such times. The Legislature has therefore ring-fenced the power of such entry, search, seizure and arrest, to ensure that those acts are not conducted wantonly.”
In these circumstances, the Court granted bail subject to conditions, observing that procedural safeguards under the NDPS Act are not mere formalities but essential protections against arbitrary action.
Appearances:
For the Petitioner: Mr. Akshay Bhandari, Mr. Janak Raj Ambavat, Ms. Megha Saroa, Mr. Kushal Kumar and Mr. Anmol Sachdeva, Advocates.
For the Respondent: Ms. Shubhi Gupta, APP for the State.
SI Dharmender, P.S.: Spl. Cell NR & STF, Rohini.
