The court ruled that the applicant's prior offenses and lack of permanent ties in the country pose a high flight risk, thus failing to meet the bail conditions under the NDPS Act.

JUDGMENT :

SAURABH BANERJEE, J.

1. By virtue of the present bail application under Section 483 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the applicant seeks grant of regular bail in proceedings arising from FIR No.168/2021 dated 10.11.2021 registered at PS.: Maurice Nagar, Delhi under Sections 21 /25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) read with Section 14 of the Foreigners Act, 1946.

2. As per FIR, on 09.11.2021 at about 09:00 PM, secret information was received that two citizens of African origin, namely Ora Gevisin @ Leonard and Okoli Anayo Franklin i.e. the applicant herein involved in supply of heroin in Delhi, would travel from Delhi University, Patel Chest to Roop Nagar between 10:00 PM and 10:30 PM in a white Toyota Corolla Altis bearing No.HR-26AU-2145 (Car). Pursuant to directions from the ACP, Operations Cell, North District, Delhi (ACP), and after reducing the same into writing as DD No.17 dated 09.11.2021 at 09:35 PM, at about 10:15 PM, a raiding team intercepted the said Car near Daulat Ram College red light, Sant Kripal Marg, Delhi University when the driver attempted to flee towards Vijay Nagar but struck the footpath causing the Car to stop. The applicant, with Ora Gevisin were apprehended, and then served with Notices under Section 50 of the NDPS Act, as also the contents thereof was explained to them by the SI. Both accused persons waived their right to be searched in presence of a Gazetted Officer or Magistrate.

3. Pursuant to the mandate of Section 50 of the NDPS Act, ACP arrived at the spot at around 01:30 PM, and informed them of their legal rights, and as per his directions, their search, and that of the Car were conducted. Though no contraband was recovered from the Car or from the person of the applicant, however, two plastic bags, one containing brown coloured powder and the other containing lumpy substance and powder were recovered from a brown bag worn around the neck of Ora Gevisin @ Leonard, bearing the logo DA MILANO ITALIA 1989. They were found to be Heroin weighing 42 grams and 214 grams respectively, totalling 256 grams. On verification, both accused were found to be on expired passport and visa. Both the accused persons were arrested and FIR No.168/2021 dated 10.11.2021 registered at PS.: Maurice Nagar, Delhi under Sections 21 /25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) read with Section 14 of the Foreigners Act, 1946.

4. Of the many grounds raised by the applicant in the present application, Mr. Javed Khan, learned counsel for the applicant submitted that the applicant has been falsely implicated in the present FIR, as no recovery whatsoever has been effected from his possession or at his instance, and that the applicant was merely present in the Car along with the co-accused. The learned counsel then submitted that the rigours of Section 37 of the NDPS Act are, thus, not applicable to the applicant. The learned counsel also submitted that although the applicant was apprehended on the basis of secret information, no efforts were made by the police officials to invite/ associate independent witnesses from the public, despite the alleged recovery having been affected from a crowded public place, thereby rendering the recovery contrary to the procedure established by law.

5. Mr. Javed Khan, learned counsel then submitted that the prosecution has failed to place on record any photographic or videographic evidence to substantiate that the search and seizure proceedings were conducted in accordance with law or that the alleged contraband can be