Four years and five months in jail, 29 witnesses to go: Delhi HC bails Congolese cocaine accused
Justice Prateek Jalan found that 71 swallowed capsules recovered in a hospital were never weighed or sampled on the spot, that the sealed containers changed hands 21 times before a formal seizure, and that the Section 37 bar must be read alongside Article 21.
A national of the Democratic Republic of Congo who has spent more than four years and five months in a Delhi jail on a charge of importing 1,198 grams of cocaine in swallowed capsules has been granted bail by the Delhi High Court. Justice Prateek Jalan held on 16 October that the way Customs officers handled the capsules between their recovery at RML Hospital and their formal seizure thirteen days later did not, on the material now available, amount to substantial compliance with the NDPS Act and the Standing Order that governs seizures. With only 13 of 42 prosecution witnesses examined, the judge found that the twin conditions of Section 37 were met at the prima facie stage and that the accused could not be kept in pre-trial custody any longer.
Seventy-one capsules, five panchnamas, one seizure
Ndulu Lukulungu Heritier landed at Terminal 3 of IGI Airport from Ethiopia on 25 April 2022. Customs officers stopped him at the Green Channel on suspicion. His baggage was scanned and he was put through the door-frame metal detector; nothing turned up. He was taken to the Customs Preventive Room in the international arrival hall and served notices under Section 102 of the Customs Act and Section 50 of the NDPS Act. A personal and baggage search before a Gazetted Officer and two independent witnesses found nothing either.
According to the prosecution, his conduct remained suspicious. On further enquiry he said he had ingested pellets containing narcotics, was served a notice under Section 103 of the Customs Act, and agreed to a procedure for their removal. He was admitted to RML Hospital the same day.
Between 25 April and 7 May 2022 he excreted 71 capsules. They were recovered in five lots under five separate panchnamas: 29 capsules at 8.10 pm on 25 April, 12 at 6 am on 26 April, 19 at 7 pm the same day, 10 at 1.30 am on 27 April and one at 7.30 pm on 1 May. Each lot was placed in a plastic container, given a detention receipt number and sealed with a Customs pliers seal marked Customs PD IGI on one side and Ashoka Stambh on the other. Throughout this period both the accused and the containers stayed with Customs officers, and the handing-over memos show that custody passed from one officer to another on 21 occasions.
He was discharged on 7 May. The next day two fresh panch witnesses, Mohd. Aziz Ansari and Suman, were shown the five sealed containers at the airport and found the seals and the signatures on the detention receipt slips intact. All 71 capsules were cut open with a blade in their presence and in the presence of the accused. Each contained a white powder; a small quantity from each capsule was tested separately with a field kit and found positive for cocaine. The contents of the capsules in each of the five lots were then mixed together and placed in five transparent pouches, with the capsule casings preserved separately. The net weight was about 1,198 grams. The five pouches went into a container stitched in cloth, marked X, sealed with a Customs preventive seal and deposited in the malkhana under detention receipt number 68798. Panchnama 7, dated 8 May 2022, recorded all of this.
He was arrested on 8 May 2022. The Ministry of External Affairs and the Embassy of the Democratic Republic of Congo were informed. He gave a statement under Section 67 of the NDPS Act the same day, which the prosecution says admitted possession, recovery and the attempt to import. On 31 May 2022 an application under Section 52A was placed before the Magistrate, samples were drawn and the 8 May panchnama was verified. The Central Revenues Control Laboratory reported on 27 September 2022 that the samples tested positive for cocaine. Charges under Sections 21(c) and 23(c) of the NDPS Act were framed on 23 March 2023.
The jail nominal roll showed custody of three years, ten months and six days as of 13 March 2026. By the date of judgment that had grown to over four years and five months.
The point the defence gave up, and the five it pressed
The bail application had argued that the arrest really took place on 25 April 2022, at the airport, not on 8 May, and that the detention was illegal because he was not produced before a Magistrate within 24 hours. Counsel for the petitioner, Mr Aniruddha Singh Rajavat, relied on three decisions of the Delhi High Court in Customs cases, Habiob Bedru Omer, Kitoko Ngiembo Alain and Maria Nuemia Albertina. Three other decisions of the same court, in Christina Katushabe Ayebale, Lydia Kabukazi Aloyo and Joshua Kuteesa, point the other way. Rather than ask for a reference to a larger bench to resolve the conflict, Mr Rajavat dropped the point during the hearing.
His principal submission was that the seizure was vitiated by non-compliance with the NDPS Act and Standing Order No. 1/89 of 13 June 1989, and that his client faced prolonged incarceration with no prospect of an early end to the trial. On the first limb he made five points. The five recovery panchnamas recorded neither the classification nor the weight of the contraband, and no sampling was done, contrary to paragraph 2.1 of the Standing Order, which requires drugs to be classified, weighed and sampled on the spot of seizure; he cited the Rajasthan High Court in Kuka Ram v. State of Rajasthan. The formal seizure on 8 May was not carried out before the witnesses who had seen the recoveries, contrary to paragraph 2.2, and the accused himself was made to identify the contraband at sampling, which he said was impermissible. The contents of each lot were mixed before samples were drawn on 31 May, contrary to paragraph 2.4, which contemplates a sample from each package; he relied on Amani Fidel Chris, Amina and Betty Rame. The contraband reached the godown only on 8 May, seven to thirteen days after the recoveries, against the 48-hour limit in paragraph 3.3. And the gap of over three weeks between field testing on 8 May and sampling before the Magistrate on 31 May was unexplained.
In rejoinder he added two more. The detention receipt slip affixed to each container was simply a piece of paper with no authenticating feature that would make it impossible to replace. And the seals used at the hospital were never sent for forensic examination, as paragraph 2.9 contemplates.
Customs: commercial quantity, Section 37, no mini trial
Mr Shubham Tyagi, Standing Counsel for Customs, answered that the recovery was of 1,198 grams of cocaine, well above the 100-gram threshold for commercial quantity, so the twin conditions of Section 37 applied in full and the petitioner could not satisfy them. On the Standing Order he relied on the Supreme Court in Mohd. Muslim v. State (NCT of Delhi), Narcotics Control Bureau v. Kashif and Bharat Aambale v. State of Chhattisgarh: the prosecution need not show scrupulous and meticulous compliance, and it is for the accused to show substantial non-compliance and resulting prejudice. These were matters for trial on evidence, not for a mini trial at the bail stage.
On the facts, he said each lot was sealed at recovery with a detention receipt slip and a seal, the seizure was a single exercise once doctors confirmed all the capsules had been recovered, the hospital seals were intact at seizure, fresh seals were applied before malkhana deposit, and those were intact before the Magistrate. The chain of custody was unbroken, he submitted, and that was substantial compliance enough to defeat even a prima facie case under Section 37.
On the length of custody he cited the Supreme Court's recent judgment in State of Punjab v. Sukhwinder Singh, which he said lays down that the requirements of Section 37 are not eclipsed by the period of incarceration.
Section 37 and Article 21 are to be read together
Justice Jalan began from the premise that the complaint concerns a commercial quantity, so Section 37 applies. He then surveyed how the Supreme Court has handled the tension between statutory bail restrictions and the constitutional right to liberty before trial, noting that similar restrictions appear in Section 43D(5) of the UAPA, Section 21(4) of the Maharashtra Control of Organised Crime Act and Section 45 of the Prevention of Money Laundering Act.
In Union of India v. K.A. Najeeb, a UAPA case, the Supreme Court held that statutory restrictions do not oust the power of constitutional courts to grant bail on Part III grounds, and that their rigours melt down where the trial will not finish within a reasonable time and the period undergone is a substantial part of the sentence. Mohd. Muslim applied that to the NDPS Act and added that Section 37 calls for a prima facie assessment on a reasonable reading of the record, not a finding beyond reasonable doubt. The judgment tabulates eight Supreme Court orders between December 2022 and November 2025 granting bail in commercial-quantity NDPS cases on the ground of custody, for periods from one and a half years upwards.
Against that line stands Sukhwinder Singh, which the judge quoted at length. The Supreme Court there set aside a Punjab and Haryana High Court order that had diluted Section 37 in the name of speedy trial, holding that the twin conditions are mandatory, that the court must record its satisfaction on both before granting bail, that the right under Article 21 must be exercised within the framework of Section 37, and that the two must be read harmoniously rather than placed in opposition. The judge also noted that in the UAPA context a two-judge bench of the Supreme Court has referred the interplay between pre-trial liberty and statutory bail restrictions to a larger bench, after Gulfisha Fatima was doubted in Syed Iftikhar Andrabi and the question was referred in Tasleem Ahmed.
His conclusion was that, for now and in the NDPS context, a court must consider both the period of pre-trial incarceration and the satisfaction required by Section 37. “Neither the constitutional right nor the statutory regime can be considered in isolation”, he wrote; the court must be mindful of both. Four years and five months was undoubtedly substantial. The maximum sentence is 20 years, and with 29 witnesses still to testify the likelihood of prolonged proceedings could not be brushed aside. But because Mohd. Muslim and Sukhwinder Singh both make a prima facie determination essential, he turned to the merits, making clear that the discussion was for that purpose only.
Five discrepancies that defeat substantial compliance for now
The judge listed five features of the Customs procedure that, in his prima facie view, lent credence to the petitioner's case.
First, no classification, weighing, sampling or testing took place at the point of recovery of any of the five lots. Mr Tyagi had cited Khet Singh v. Union of India and State of Punjab v. Makhan Chand as permitting this. The judge distinguished both. In Khet Singh the seizure was on a roadside with no facilities, the Supreme Court allowed the seizure mahazar to be prepared later, and it stressed that justifiable grounds for the delay should be recorded and that inordinate delay itself creates an opportunity for tampering. Makhan Chand was again a roadside recovery where weighing facilities were unavailable. Here the recovery was in a hospital, where facilities for field testing and weighing could, prima facie, have been provided.
Second, the chain of custody. The capsules were recovered between 25 April and 1 May; the formal seizure and arrest came only on 8 May. In between, the sealed containers and the accused were transferred between officers 21 times. The seal itself was general in nature and appears to have been handed to each succeeding officer so that further recoveries could be sealed. So the capsules and the seal that secured them were always in the hands of the same person. The sample seals from the hospital were never sent for forensic examination, contrary to paragraph 2.9 and to the Supreme Court's observation in Noor Aga v. State of Punjab that where the seal was not deposited in the malkhana the sanctity of the recovery was not adequately safeguarded. Given the number of custody transfers, the judge said, the absence of forensic examination of the seals assumed greater significance, and these circumstances raised a prima facie doubt about the chain of custody.
Third, the formal seizure on 8 May took place before an entirely new set of witnesses, not the panch witnesses who had seen each recovery, even assuming seizure was not required at the time of recovery.
Fourth, the contraband was not sent to the malkhana during that period but handed from officer to officer. Paragraph 3.3 of the Standing Order requires deposit in the godown, fully packed and sealed, within 48 hours of seizure. The deposit here came seven to thirteen days after recovery.
Fifth, the gap between seizure on 8 May and sampling before the Magistrate on 31 May. “The delay of over three weeks has not been explained at all.”
One defence point did not succeed, at least for now. Mr Rajavat had argued that mixing the contents of all the capsules in each lot before sampling was impermissible under paragraph 2.4. Mr Tyagi pointed to paragraph 2.5, which allows packages that are identical in size, weight, markings and field-test result to be bunched and sampled together. Since the capsules were all apparently identical, the judge declined to make a prima facie finding for the petitioner on this point and left it to trial.
On the governing standard, the judge noted that Kashif and Bharat Aambale say procedural violations in NDPS cases should not be standalone grounds for acquittal or bail, while Noor Aga ties the sanctity of physical evidence to substantial compliance with the Standing Order and draws an adverse inference where that is missing; the lapse in Noor Aga was samples kept at an airport for three days without malkhana deposit. He quoted the principles laid down in Bharat Aambale, which considered all four earlier cases together: non-compliance with Section 52A or the Standing Order may lead to an adverse inference, is not by itself fatal unless there are discrepancies in the physical evidence that compliance would have avoided, and requires courts to scrutinise the record more stringently rather than brush lapses aside; the presumption under Section 54 should not be resorted to unless the court is otherwise satisfied about the seizure. The Standing Order is guidance rather than mandate, and the test is substantial compliance; but Bharat Aambale itself recognises a higher threshold of scrutiny where it is violated.
Applying that test, the judge held that the five discrepancies precluded a finding of substantial compliance with the NDPS Act and the Standing Order at this stage. The unbroken chain of custody asserted by Customs would have to be established at trial, and the accused was entitled to the benefit of doubt now. He had no criminal antecedents. On the prima facie standard of Mohd. Muslim, the requirement of Section 37 was made out and continued pre-trial custody was not warranted, particularly after four years and five months in custody already undergone, “with little prospect that the trial can be concluded expeditiously”.
Order
Because the petitioner is a citizen of the Democratic Republic of Congo, the judge said his release had to be guided by strict conditions, including as to sureties, following the Supreme Court's recent explanation of those principles in Union of India v. Chidiebere Kingsley Nawchara. He is to be released on a personal bond of Rs 1,00,000 with two sureties in the like amount, to the satisfaction of the Special Court or Duty Magistrate. The sureties are to be verified by the Special Court before release, and a lien or charge equal to the surety amount is to be created on their property, including immovable property. He must appear before the Special Court on every date of hearing, give the investigating officer a mobile number and keep it operational, and furnish his permanent and residential addresses, to be verified before release, with an affidavit if they change. He must surrender his passport, if any, not leave the country without the Special Court's permission, not influence or threaten anyone acquainted with the facts or tamper with evidence, and commit no offence while on bail. He must file an affidavit disclosing his source of income or funds within India and all bank accounts in the country.
Following Frank Vitus v. Narcotics Control Bureau, the State is to communicate the bail order immediately to the Foreign Registration Officer under Rule 3 of the Registration of Foreigners Rules, 1992, who is to inform all concerned authorities, including civil authorities, so that they can act under the Foreigners Act, 1946, the 1992 Rules and the Foreigners Order, 1948. The petitioner must register with the Foreigners Regional Registration Office within a week of release and tell the investigating officer in writing that he has done so. The investigating officer is to inform the Embassy of the Democratic Republic of Congo of his involvement in the case.
The bail application and the pending miscellaneous application were disposed of in those terms. The observations, the judge clarified, are only for deciding bail and express no opinion on the merits. A copy of the order goes to the Jail Superintendent electronically. The petition was heard together with Bail Application Nos. 4650/2025 and 516/2026, which arise in similar circumstances, but separate judgments are being delivered in each. The matter was reserved on 14 October 2026 and pronounced on 16 October. Mr Aniruddha Singh Rajavat and Mr Maneesh Bhardwaj appeared for the petitioner; Mr Shubham Tyagi, Standing Counsel, with Ms Navruti Ojha, appeared for Customs.