Section 42 NDPS Act Safeguard Requires Contemporaneous Recording & Transmission Of Information: Delhi High Court Grants Bail

The Court noted that where the legality of the search itself becomes arguable on account of alleged infraction of a mandatory statutory safeguard, such circumstance becomes relevant while examining the rigours of Section 37 of the NDPS Act.

The Court was hearing a regular bail petition filed in an FIR registered under Sections 22 and 29 of the NDPS Act at Special Cell, Delhi, wherein the petitioner was alleged to be operating multiple pharmaceutical entities used for procurement, storage and supply of psychotropic substances.

The prosecution alleged that commercial quantities of Codeine Phosphate and Tramadol were recovered from the godown of Sunrise Pharma at the instance of the petitioner.

A Bench of Justice Anup Jairam Bhambhani observed: “The safeguard embedded in section 42 of the NDPS Act is intended to ensure contemporaneous recording and transmission of information by the officer who receives it, so as to preclude the possibility of reinterpretation, embellishment or interpolation at a later stage.”

The Bench further observed: “Where the legality of the search itself is put in issue on the basis of an arguable infraction of a mandatory statutory safeguard, that would certainly be a relevant factor while testing the prosecution case on the touchstone of section 37 NDPS Act.”

Advocate Akshay Bhandari appeared for the petitioner, while APP Shubhi Gupta represented the respondents.

Background

According to the prosecution, secret information was received regarding the transportation and supply of psychotropic substances by a network of accused persons. The prosecution alleged that co-accused Rahul Varshney and Tushar Aggarwal disclosed during interrogation that they procured pharmaceutical drugs from the present petitioner.

The petitioner was alleged to be operating Sunrise Pharma in conjunction with three other pharmaceutical firms, namely NA Pharma, Medisales Pharmaceuticals, and AC Pharmaceuticals, which, according to the prosecution, were effectively controlled by him, although they were registered in the names of other persons.

The State alleged that at the petitioner’s instance, commercial quantities of Tramadol and Codeine Phosphate were recovered from the godown of Sunrise Pharma. The prosecution further alleged that invoices, bills and transaction records recovered from the petitioner’s mobile phone and premises demonstrated that psychotropic substances were procured and circulated through firms controlled by him.

The petitioner, however, contended that all the concerned firms held valid pharmaceutical licences and that the medicines recovered from the godown were part of licensed stock supported by invoices and bills. According to the petitioner, the gravamen of the allegation was merely that medicines purchased in the names of other licensed firms were stored at the Sunrise Pharma godown, which at best constituted a regulatory irregularity under the Drugs and Cosmetics Act, 1940 and not an offence attracting the rigours of Section 37 NDPS Act.

The petitioner further contended that the search and seizure stood vitiated for non-compliance of Section 42 NDPS Act. It was argued that though the supplementary disclosure statement containing the information regarding storage of contraband was recorded by SI Vishal Malik, the statutory requirement of forwarding such information to the superior officer under Section 42(2) NDPS Act was not complied with by the said officer.

Court’s Observation

The High Court observed that the controversy in the present matter rested substantially on four aspects: alleged non-compliance of Section 42 NDPS Act, the licensed nature of the pharmaceutical stock, prolonged incarceration coupled with delay in trial, and parity with co-accused already enlarged on bail.

Examining the issue relating to Section 42 NDPS Act, the Court noted that according to the prosecution itself, the supplementary disclosure statement containing the information leading to the recovery was recorded by SI Vishal Malik, whereas the communication to the superior officer was admittedly made by Inspector Manender Singh through a General Diary entry.

The Court observed that, prima facie, the sequence indicated that the information had first been received and recorded by SI Vishal Malik, but the statutory communication upward to the superior officer did not emanate from the same officer. Referring to Zakey Ahmed v. State (NCT of Delhi) (2025), the Court noted the petitioner’s contention that the officer who first receives information must himself comply with the statutory mandate under Section 42 and that compliance cannot be substituted by another officer acting on hearsay information.

The Court further noted the State’s reliance upon Karnail Singh v. State of Haryana (2009) to contend that substantial compliance with Section 42 would suffice. However, the Bench observed that the factual matrix raised a debatable issue regarding adherence to the mandatory safeguard “in its true sense”.

The Court clarified that while definitive findings could not be rendered at the stage of bail, the legality of the search itself, becoming arguable on account of alleged infraction of a mandatory statutory safeguard, was a relevant consideration while testing the prosecution's case under Section 37 NDPS Act.

On the second aspect concerning the nature of the contravention, the Court noted that it was undisputed at this stage that Sunrise Pharma, NA Pharma, Medisales Pharma and AC Pharma all held valid pharmaceutical licences. The Court further observed that the gravamen of the prosecution case was that pharmaceutical drugs purchased in the names of one set of firms had been stored in the godown of another licensed entity.

The Court observed: “The present matter is not one where wholly illicit pharmaceutical drugs have been recovered from a person having no lawful permission to possess the drugs in question.”

The Bench held that at least prima facie, the issue appeared to be whether the petitioner’s conduct constituted licensed possession coupled with improper storage and breach of licence conditions, or whether the material unmistakably pointed towards drug trafficking.

The Court further noted that invoices and purchase records for the pharmaceutical stock had also been recovered from the godown, lending support to the petitioner’s contention that the stock formed part of licensed pharmaceutical inventory.

On the issue of prolonged incarceration, the High Court observed that the petitioner had remained in custody since April 2024, and the matter was still at the stage of arguments on the charge. The Court further noted that 44 prosecution witnesses had been cited and therefore the trial was likely to take considerable time.

Referring to Mohd. Muslim alias Hussain v. State (NCT of Delhi) (2023), the Court reiterated the importance of the right to speedy trial and observed that prolonged undertrial incarceration cannot be allowed to assume the character of punitive detention.

The Court additionally found it relevant that the co-accused, who formed part of the same alleged transactional chain, had already been granted regular bail. Though the State attempted to distinguish the petitioner’s role as the principal supplier, the Court held that parity remained a relevant consideration while assessing continued incarceration.

The Bench further observed that though previous criminal antecedents are relevant, mere prior involvement without conviction and absent demonstrated misuse of liberty cannot override all other considerations.

Conclusion

The Delhi High Court held that in view of the arguable challenge under Section 42 NDPS Act, the licensed nature of the pharmaceutical stock, prolonged incarceration, delay in trial and parity with co-accused already enlarged on bail, the petitioner had made out a case for the grant of regular bail notwithstanding the rigours of Section 37 NDPS Act.

Accordingly, the Court granted regular bail to the petitioner subject to furnishing personal bond and sureties, surrender of passport, non-tampering with evidence and compliance with other conditions imposed by the Court. The Court clarified that observations made in the judgment were only for the purposes of deciding the bail application and would not influence the trial.

Cause Title: Yusuf Aajam v. State Govt. of NCT of Delhi (Neutral Citation: 2026:DHC:4966)

Appearances

Petitioner: Advocates Akshay Bhandari, Megha Saroa, Kushal Kumar, Janak Raj Ambavat and Anmol.

Respondents: APP Shubhi Gupta.

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