Successive NDPS bail requires material change in circumstances; Supreme Court reservations on denying bail to foreign nationals and Article 21 speedy trial violation from prolonged delay justify bail despite prior denial.

JUDGMENT :

Rakesh Kainthla, J.

The petitioner has filed the present petition for seeking regular bail in FIR No. 158 of 2023, dated 04.08.2023, registered for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and Section 14 of the Foreigners Act at Police Station, Sadar Solan, District Solan, H.P. 2. It has been asserted that the petitioner was implicated based on a statement made by Gaurav and the chat recorded on the mobile phone. The statement made by a co-accused is inadmissible in evidence. The Chat is with a person named Sugar, and there is no material to connect the petitioner to Sugar. The petitioner was arrested in Delhi, but no witness was associated at the time of his arrest. The requirement of Section 42 of the NDPS Act was not satisfied before seizure and arrest. The petitioner has been in judicial custody since 06.08.2023. The co-accused have been released on bail. The petitioner has a valid Passport and VISA till May 2026. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, the petition.

3. The petition is opposed by filing a status report asserting that the police were on patrolling duty on 04.08.2023. They received a secret information at about 12:30 pm that Rohit, Gaurav, and Nikhil were present in their room and they were selling heroin. A huge quantity of heroin could be recovered by their search. The information was reduced to writing and was sent to the Supervisory Officer. The police searched the room in the presence of an independent witness and recovered 8.78 grams of heroin and other articles. The police arrested Rohit, Gaurav, and Nikhil and seized the articles. The police interrogated Gaurav, who revealed that he had purchased 10 grams of heroin from Joseph Onyeka alias Sugar. The police checked the mobile phone and found that Gaurav and the petitioner were talking to each other. The police arrested the petitioner, Joseph alias Sugar, at his home and recovered the mobile phone. The mobile phones have been sent to FSL, Junga, for retrieving the data; however, no report has been received so far. As per the result of the analysis, the substance recovered from the room was confirmed to be Diacetylmorphine. The petitioner is a resident of Nigeria, and he did not produce his passport or VISA; therefore, the offence punishable under Section 14 of the Foreigners Act was also added. The prosecution has cited 28 witnesses, out of whom 13 witnesses have been examined and the matter was listed for recording of statements of prosecution witnesses on 18.08.2025. The VISA produced by the petitioner was verified from FRRO, Delhi, Bureau of Immigration, MHA VISA Division, and it was found that this VISA was issued in favour of a resident of Afghanistan and not in the petitioner’s name. No details could be ascertained regarding the issuance of any VISA to the petitioner. Hence, the status report.

4. I have heard Mr Rajiv Rai, learned counsel for the petitioner and Mr Parshant Sen, learned Deputy Advocate General, for the respondent/State.

5. Mr Rajiv Rai, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated based upon the statement made by the co-accused. The petitioner had a valid VISA to enter the country, and the police had wrongly added Section 14 of the Foreigners Act, 1946. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

6. Mr Prashant Sen, learned Deputy Advocate General,