Non-Supply Of Grounds Of Arrest Without Prejudice Is At Best A Curable Defect: Delhi High Court Denies Bail To NDPS Accused

The Court further held that where the investigating agency has substantially complied with the constitutional requirement of communicating the grounds of arrest, the absence of a separately furnished written document, without any demonstrable prejudice to the accused, constitutes at best a curable procedural defect and cannot by itself justify grant of bail, while denying bail in a case involving recovery of 1.516 kg (commercial quantity) of charas.

The Court further noted that the Court cannot ignore the ground realities of the difficulties faced by Police in arresting an accused, more so in cases involving serious crimes, and cannot ignore the hard task before police to prevent further expanse of the crime and efforts by an accused to destroy evidence, holding that releasing the accused on such a ground would give him a chance to wipe out evidentiary footprints before being re-arrested after formal supply of written grounds of arrest.

Justice Girish Kathpalia observed, “While dealing with the issue of bail, the court is duty bound to balance rights of the accused and prerogative (rather, the duty) of the investigating agency. Of course, fundamental rights of an accused are sacrosanct. But what about the fundamental rights of rest of the society. This Court cannot ignore the ground realities of the difficulties faced by police to arrest an accused, more so in cases involving serious crimes. This Court also cannot ignore the hard task for police to prevent further expanse of the crime and efforts of the accused to destroy the evidence. In such circumstances, should the accused be released on such ground, giving him a chance to wipe out the evidentiary footprints before being again arrested after formal supply of written grounds of arrest”.

“…In order to secure bail for failure to supply grounds of arrest, the accused must show the prejudice, if any caused to him by the said procedural lapse and in the absence of demonstrable prejudice, the non-supply of grounds of arrest is at best a curable defect. As held in the above cited judicial precedents, gravity of offence and other relevant factors for consideration of bail cannot be overlooked, treating the non-supply of grounds of arrest as determinative factor.”, it further said.

Advocate Meghan appeared for the petitioner and Amit Ahlawat, APP appeared for the respondent.

On January 17, 2025, the petitioner, Amar Thapa, a native of Nepal, was apprehended from a second-floor flat in Kotla Mubarakpur, New Delhi, based on specific secret information, and 1.516 kg of charas was recovered from the premises. During interrogation, he disclosed that he procured the contraband from a co-accused, Thomas, who brought it from Nepal for further sale in small quantities in Delhi. He was arrested the same day, and an FIR was registered under Sections 20/25 of the NDPS Act.

The petitioner sought regular bail before the High Court, raising two grounds: first, that discrepancies in Register No. 19 regarding who deposited the sealed parcels in the malkhana, and a mismatch in seal descriptions, vitiated the recovery proceedings; and second, that the grounds of arrest were not furnished to him in writing, entitling him to bail regardless of the statutory embargo under Section 37 of the NDPS Act.

On the malkhana discrepancy, the Court found that the rukka, seizure memo, and Register No. 19 itself consistently disclosed that the IO sealed the parcels with his seal (NG), which were then countersealed by the SHO with his seal (PSM) to preserve the purity of the seized material, a standard practice that did not raise reasonable doubt about the accused's guilt.

The Court found that the arrest memo, though headed "reasons of arrest”, in substance disclosed the grounds of arrest, and that the petitioner had been legally represented from the outset and had not demonstrated any prejudice arising from the alleged non-supply.

“Going a step deeper, even if it is assumed despite the above discussion that the grounds of arrest were not supplied to the accused/applicant, the record does not reflect any prejudice caused to the accused/applicant for the alleged non-supply of grounds of arrest. Admittedly, on the very first occasion after arrest when the accused/applicant was produced before the learned Special Judge for remand, he was equipped with legal assistance. Even the application for police remand clearly disclosed amongst other factors, an effort to trace out the source of charas namely Thomas. Even in the order of first remand, the learned Special Judge reiterated that police custody was necessary for sustained interrogation, for collection of evidence, for eliciting information about the supplier of the contraband, for apprehending and arresting the supplier, and also to collect information about other receivers/suppliers”, the Bench said.

“Had the accused/applicant been not remanded by the learned Special Judge, opportunities would have been presented to him on platter to ensure that neither the supplier nor the subsequent purchasers could be apprehended by the police. Even at the present stage, if the accused/applicant is released, there is high probability of his absconding to his native place in Nepal, thereby completely blocking the efforts of police to track down the expanse of the network. The conscience of this Court does not allow that to happen…”, the Bench further noted.

Accordingly, the bail application was dismissed, and the Court directed that a copy of the order be sent to the concerned Jail Superintendent for communication to the petitioner.

Cause Title: Amar Thapa v. State of NCT of Delhi (Neutral Citation: 2026:DHC:5520)

Appearances:

Petitioner: Meghan and Vipul Shivhare, Advocates.

Respondent: Amit Ahlawat, APP, assisted by SI Dinesh Kumar.

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