The court established that non-disclosure of grounds of arrest does not necessarily warrant bail under the NDPS Act, particularly when the applicant has significant criminal antecedents and the prosecution establishes a prima facie case.

JUDGMENT :

SAURABH BANERJEE, J.

1. By virtue of the present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, Hereinafter ‘ BNSS read with Section 439 of the Code of Criminal Procedure, 1973, Hereinafter ‘Cr.P.C., the applicant seeks grant of regular bail in proceedings arising from FIR No.93/2021 dated 22.05.2021 registered under Sections 21 /25 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Hereinafter ‘NDPS Act at PS: Crime Branch, Delhi.

2. As per FIR, on 22.05.2021 at about 06:10 PM, secret information was received at the Narcotics Cell, Crime Branch, Darya Ganj, Delhi that one person namely Sunny @ Prem/ applicant herein was going to supply a large quantity of heroin to some person near the Mazar situated at Ganda Nala, Sultanpuri between 07:30 PM to 08:30 PM. The same was reduced to writing vide DD No.34A at 06:33 PM at the instance of the ACP and a raiding team was constituted. During the said raid, after reaching the Mazar at Ganda Nala, at around 07:45 PM, the secret informant disclosed that the applicant was now going to supply heroin to some other person near DMS Booth, opposite H-Block, Vikas Puri Main Road between 08:30 PM to 09:30 PM. Hence, the raiding team reached the new location at about 08:20 PM. At about 08:40 PM, the applicant was identified by the informer standing close to his scooty, apparently waiting for someone. He was apprehended when he appeared to be leaving at about 08:45 PM. Notice under Section 50 of the NDPS Act was served upon him in Hindi, and he was apprised of his rights to be searched in the presence of a Gazetted Officer or Magistrate, which he declined. Thereafter, the ACP was called to the spot, and upon search in his presence, one white plastic polythene bag was recovered from the left pocket of the applicant’s trousers, containing a waxy pouch tied with a red rubber band, inside which there was a muddy-brown coloured powder, found to be 280g of heroin on testing. Thus, the applicant was arrested, and FIR No.93/2021 dated 22.05.2021 was registered under Sections 21 /25 NDPS Act. The charge-sheet has also since been filed.

3. Though the applicant has raised various grounds, however, learned counsel for applicant primarily submitted that there is a non-disclosure of grounds of arrest to the applicant at the time of arrest. The arrest of the applicant was in violation of Article 22(1) of the Constitution of India, as evident from the Arrest Memo which only mentioned the case details and not the actual grounds of arrest, as also since the same was in English, whereas the applicant signed the said Memo in Hindi. The grounds of arrest were not communicated to the applicant in a manner that he could understand, and hence the procedure adopted was defective and ripe with constitutional infirmity. The learned counsel placed reliance uponVihaan Kumar vs. State of Haryana, 2025 SCC OnLine SC 269 rendered by the Hon’ble Supreme Court and Md. Noor Mohammad vs. State of Assam , order dated 05.05.2025 in Bail Appln. No.3043/2024 rendered by a learned Single Judge of the High Court of Assam.

4. The learned counsel submitted that as there is no departure entry of the ACP in violation of the mandate of Section 42 NDPS Act, relying upon Gulab Rai @ Chetan vs. State of NCT of Delhi , order dated 19.01.2024 in Bail Appln. No.3840/2023 submitted that the due process of reduction of information to writing cannot be done away with. NDPS Act was also violated by the recovery being made post- sunset without recording the reasons as to why a warrant could not have been obtained, as well as due to absence of independent third party witness