Strict adherence to sampling procedures under Section 52A NDPS Act is essential, and prolonged incarceration may warrant bail consideration, but the nature of the contraband and procedural compliance are critical factors.

JUDGMENT

ANISH DAYAL, J.

1. The present application is filed under Section 439 of the Criminal Procedure Code , 1973 (‘CrPC’) seeking grant of regular bail in FIR No. 43/2020 dated 9th December 2020 registered at New Delhi Railway Police Station for offences under Sections 22/29 of Narcotic Drugs and Psychotropic Substances Act , 1985 (‘NDPS Act’) and 14 of The Foreigners Act , 1946 and 467/474 of the Indian Penal Code (‘ IPC ’). The applicant was arrested on 9th December 2020 from New Delhi Railway Station.

Background Facts

2. The case of the prosecution is that on 8th December 2020, HC Dharmender and HC Pawan were on patrolling duty at the Railway Station. At about 8:45 PM, the applicant was spotted boarding 02692 Bengaluru Rajdhani AC Special and one lady with a polythene packet was also boarding the train, behind the said person. The Head Constables entered the coach of the train and saw that the applicant was on upper berth no.14 with one polythene packet, whereas, the lady was sitting on the lower berth with two polythene packets. On inquiry, they said these were domestic articles, however, on searching the same, a white crystal type substance was found in the polythene bags. Thereafter, the accused along with the other lady was brought to the police station for further questioning.

3. After testing the substance by way of field-testing kits, ‘amphetamine’ was found in polythene pouches which were in contained cardboard boxes in the plastic packets. It was further revealed that applicant was an African citizen & the other lady namely Shrimathi (whose Bail Application No. 2672/2024 has also been preferred) was from Tamil Nadu. One polythene packet was found in the possession of applicant and two polythene packets were found in the possession of co-accused/Shrimathi. On checking of the polythene packet within possession of the applicant, two carboard boxes with 6 transparent pouches each (a total of 12 packets) were found. A total of 57 packets were recovered from both accused, amounting to a weight of 10.5 kg. From the recovered substance, two samples of 250g each were taken into police possession through seizure memo and the present FIR was registered. Subsequently, the accused persons were arrested on the same day i.e. 9th December 2020.

4. During the course of investigation, they disclosed that one person namely Michel of Dabri, Delhi had provided the drugs for supply of the same in Bangalore. Efforts were made to trace co-accused Michel, however, he could not be traced. Sampling was conducted in the MM Court and exhibits deposited in FSL Rohini for examination. CCTV footage was obtained and placed on record. Railway tickets of both the accused were verified. Visa No. VJ5374920 of the applicant was verified from concerned officials, which was found to be fake, issued in the name of Quaid Johar of Pakistan. On inquiry, it was found that applicant had come to Mumbai Airport on 15th December 2011 on his passport and visa. Therefore, sections 467/474 IPC and 14 of Foreigners Act, 1946 were added. FSL report confirmed that the substance was ‘methamphetamine’. CDRs were analyzed to show that both accused were connected with each other. Chargesheet was filed after completion of investigation. Previous bail application of applicant was dismissed by Special Judge (NDPS) Tis Hazari Courts vide order dated 29th February 2024. Hence, the present application.

Submissions on behalf of Applicant

5. Counsel for applicant has raised inter alia the following contentions.

6. On the issue of delay in trial, counsel for applicant submitted that the applicant has been falsely implicated in the present case & has been in custody for a period of 3 years and 9 months approximately. He states that out of the total of 45 packets recovered from both accused, only 12 packets were recovered from the applicant herein. He submits that all packets recovered, were mixed together and sample was drawn on the spot after mixing of all packets recovered from both