Twin Test U/s. 37 NDPS Act Not Satisfied: Delhi High Court Denies Bail To Afghan Man Caught Smuggling Over 900g Heroin Inside His Body

The Delhi High Court has denied bail to an Afghan man who was caught smuggling more than 900 grams of Heroin in India by hiding it inside his body.

The Court was considering a Petition seeking bail in a case registered for offences punishable under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The Bench of Justice Neena Bansal Krishna observed, "Applying the twin tests of Section 37 NDPS Act, this court finds that the Applicant has failed to satisfy either of them. The recovery of 905 grams of Heroin from inside his body establishes a strong prima facie case of conscious possession. There are no “reasonable grounds” to believe he is not guilty."

The Petitioner was represented by Advocate Mohd. Suza Faisal, while the Respondent was represented by Senior Standing Counsel Anushree Narain.

Facts of the Case

Two Afghan Nationals were found with 900 grams of Heroin at the IGI Airport. During preliminary questioning, both accused admitted to having concealed contraband inside their bodies. Notice under Section 102 of the Customs Act, 1962, and Section 50 of the NDPS Act were served upon them. They were then taken to RML Hospital for medical examination, where X-rays confirmed the presence of foreign objects in their bodies.

Counsel for the Applicant sought Bail primarily on the grounds that the mandatory procedures under Section 50 of the NDPS Act and Section 103 of the Customs Act were not followed and the Applicant was not produced before the nearest Magistrate, which vitiates the proceedings. He submitted that the Applicant has been in custody for nearly four years and five months, and the trial is proceeding slowly, with only two of the 13 Prosecution witnesses having been examined till date. It was further submitted that the Applicant is the sole bread earner for his family, which is facing immense distress due to his incarceration. It was contended that the Applicant is not a flight risk and will not tamper with any witnesses or evidence.

On the other hand, the Standing Counsel opposed the Bail Application on the grounds that the recovery from the Applicant is of 905 grams of heroin, which is a commercial quantity, thereby attracting the rigors of Section 37 of the NDPS Act. It was contended that the twin conditions for granting Bail under Section 37 of the NDPS Act, are not satisfied and there are no reasonable grounds to believe that the Applicant is not guilty of the offence nor is there any basis to believe that he is not likely to commit any offence while on Bail.

Reliance was placed on the Judgment of the Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal, 2022 wherein it was held that the length of custody or the filing of a Chargesheet are not by themselves persuasive grounds for granting bail under Section 37. 

It was further submitted that the Applicant is an Afghan national with no roots or family in India, and if released on Bail, there is a very high probability that he will abscond and evade the trial.

Reasoning By Court 

The Court at the outset observed that Drug trafficking is a grave offence that poses a hazard to society and a liberal approach in such matters is uncalled for, as established in Union of India v. Ram Samujh, (1999).

The Court looked into the provisions of Section 37 of the NDPS Act, 1985 and elaborated the “twin tests".

"The contention of the Applicant regarding non-compliance with Section 50 of the NDPS Act and Section 103 of the Customs Act is a matter of trial. The record prima facie indicates that Notices were served upon the accused and the recovery itself was not from a personal search but from the voluntary excretion of capsules from his body in the Hospital, after the same was detected at the Airport and was admitted to having been concealed by the Applicant. The evidence, including the statements of Customs Officers and medical personnel, prima facie establish conscious possession", the Court observed.

It stated that it cannot conduct a mini-trial to determine the validity of the procedures, which is a matter of trial, as held in the case of Lt. Col. Prasad Shrikant Purohit v. State of Maharastra (2018).

The Court was of the view that based on the material on record, there is no basis to form a belief, even on a preliminary basis, that the Petitioner is “not guilty.” 

Stressing on the second parameter of the twin test, the Court observed, "The Applicant is a foreign national from Afghanistan with no discernible ties in India. The possibility of his absconding, given the porous nature of international borders and the resources that international drug syndicates possess, cannot be overlooked. The risk of him fleeing from justice is palpable and extremely high. If he absconds, the entire trial would be rendered futile."

The Application was accordingly dismissed.

Cause Title: Naqibullah Rodaie vs. Air Customs, IGI Airport, New Delhi (2025:DHC:8341)

Appearance:

Petitioner- Advocate Mohd. Suza Faisal, Advocate Mohd. Kashif

Respondent- Senior Standing Counsel Anushree Narain, 

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