Mohan Babu Gupta vs State Govt Of Nct Of Delhi

Anup Jairam Bhambhani, J

By way of the present petition filed under section 483 read with 528 of the Bharatiya Nagarik Suraksha Sanhita 2023, the petitioner seeks regular bail in case FIR No.337/2022 dated 15.11.2022 registered under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) at P.S.: Special Cell, Delhi. Consequent upon completion of investigation, offences under section 29 of the NDPS Act  and  section  14  of  the  Foreigners  Act,  1946  have  been  added  vide chargesheet dated 09.05.2023.

Notice on this petition was issued on 16.04.2025.

Status report dated 03.07.2025 has been filed by the State.

Nominal Roll dated 17.07.2025 has also been received from the Jail Superintendent.

The court has heard Mr. Akshay Bhandari, learned counsel for the petitioner; and Ms. Shubhi Gupta, learned APP for the State.

Mr.  Bhandari  has  submitted,  that  the  petitioner  has  been  implicated  in the subject FIR on the basis of the disclosure statement of one Praveen, who is alleged to have stated as under:

It is  submitted, that  the alleged  disclosure statement  of Praveen  shows that the Investigating Officer had reason to believe that contraband could be recovered from the petitioner; whereafter a notice under section  50  of  the  NDPS  Act  was  served  upon  the  petitioner;  a  search was conducted; and 360 grams of heroin was allegedly recovered from his car.

Mr. Bhandari has pointed-out, that as would be seen from  GD Entry No.0160A dated  17.11.2022  recorded  by the police, the petitioner was apprehended from  Jharoda  Kalan,  Delhi  at  about  05:40  p.m.  Counsel has submitted, that it be noted that as per communication dated 30.10.2024 received from the Positional Astronomy Centre, Kolkata the sunset time in that area on 17.11.2022 was 17:28 hours, i.e., 05:28 p.m., and therefore clearly, the search was conducted after sunset. However, it has been argued, that the record shows that despite the search having being conducted after sunset, the Investigating Officer did  not  record  the  “grounds  of  his  belief”  for  conducting  such  search, which is a violation of the second proviso to section 42(1) of the NDPS Act.

Attention in this behalf is drawn to the second proviso to section 42(1) of the NDPS Act, which reads as under:

Power of entry, search, seizure and arrest without warrant or authorisation.—(1)

* * * * *

Provided further that if such officer has reason to believe that  a  search  warrant  or  authorisation  cannot  be  obtained  without affording opportunity for the concealment of evidence or facility for the  escape  of  an  offender,  he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(emphasis supplied)

It has  further been pointed-out, that since the Investigating  Officer did not record the “grounds of his belief”, as required under the second proviso to section 42(1) of the NDPS Act, a copy of the same was also not  sent  to  the  immediate  official  superior,  which  is  also  in  breach  of the requirement under section 42(2) of the NDPS Act.

Section 42(2) of the NDPS Act reads as under:

(2)  Where  an  officer  takes  down  any  information  in  writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

(emphasis supplied)

Furthermore, Mr. Bhandari has drawn attention to the statement of the concerned ACP recorded on 10.01.2023 under section 161 of the Code of Criminal Procedure 1973 (‘Cr.P.C.’), to submit that the authorisation given by  the ACP under section 41 of the NDPS Act was only  with regard to information received on 15.11.2022 in respect of another co- accused  Umesh  Singh; and no authorisation  was issued  by the ACP in relation to the petitioner. A copy of ACP’s statement dated 10.01.2023 recorded under section 161 of the Cr.P.C. had  been handed-up in court on 03.02.2026; and the same is taken on record.

It has been pointed-out that though the Investigating Officer had forwarded the disclosure statement of co-accused Praveen to the ACP, the ACP had merely recorded that he had “seen” the same and had directed that it be placed on record; but the ACP did not give any authorisation for the search of the premises or for the arrest of the petitioner.

Reliance in this behalf has also been placed on the cross-examination of PW-1 (Reader to the ACP) recorded on 06.02.2025, whereby the said  witness  has  categorically stated  that  after  receiving  the disclosure statement of Praveen, no search authorisation was issued by the ACP.

It has  been submitted, that  it is settled law that  where an  Investigating Officer  is  not  acting  under  section  41  of  the  NDPS  Act  with  requisite authorisation, he is bound to comply with section 42 of the NDPS Act.

However, it has been submitted that in the present case, the I.O. has acted  in  violation,  both  of  section  41  as  well  as  the  second  proviso  to section 42(1) of the NDPS Act.

That apart, Mr. Bhandari has submitted, that while the petitioner has been in custody from 17.11.2022, and has thereby undergone more than 3½  years  in  judicial  custody,  only  01  out  of  29  prosecution  witnesses has  been  examined  so  far;  and  the  trial  is likely to  take  a long  time  to be completed; and detaining the petitioner in custody any further would defeat  his  right  to  speedy  trial  under  Article  21  of  the  Constitution  of India. It has been argued, that in any case, it now stands settled by the Supreme Court that where there is delay in trial, the constitutional right of an accused to speedy trial would prevail over any statutory embargo

on  grant  of  bail,  namely  in  this  case,  the  twin  conditions  contained  in section 37 of the NDPS Act ‘Mohd. Muslim alias Hussain vs. State (NCT of Delhi), 2023 SCC OnLine SC 352 citing Union of India  vs. K.A. Najeeb, (2021) 3 SCC 713’.

Mr. Bhandari has argued that co-accused Jaipal has been granted regular bail by this Bench vidé order dated 09.01.2025 passed in BAIL APPLN. No. 3729/2024.

On the other hand, opposing the grant of bail, Ms. Shubhi Gupta, learned APP has submitted, that since commercial quantity of heroin (more than 250 grams) was recovered from the petitioner, section 37 of the NDPS Act would come into play.

Learned  APP has  further  submitted, that  the prosecution  is relying  not just on CDR connectivity between the petitioner and co-accused Jaipal Singh,  but  also  on  their  conversations,  which  were  in  fact  intercepted. It  has  been  argued  that  on  forensic  examination,  the  petitioner’s  voice has  matched  with  the  voice  in  those  conversations;  and  the  transcripts of those conversations, copies  of which  have  been  filed, show that the petitioner was transacting with Jaipal and some other co-accused persons in relation to dealing in contraband.

It  has  been  submitted  that  the  last  conversation  between  the  petitioner and co-accused Jaipal Singh happened on 12.11.2022, that is just a few days prior  to  the  commission of  the  offence  on  15.11.2022,  in  which conversation the petitioner is found discussing specific quantities of ’सामान’ with the said co-accused.

Upon a conspectus of the submissions made, and the documents on record, the following considerations weigh with the court at this stage:

22.1.Since the alleged recovery of contraband (heroin) from the petitioner is claimed to be of 360 grams, which is ‘commercial quantity’  (the  threshold being  250  grams),  the  rigours  of  section 37 of the NDPS Act would be attracted in the present case;

22.2.However, the record shows that recovery of contraband was allegedly made from the petitioner after sunset since in GD Entry dated 17.11.2022, the I.O. has recorded that the petitioner was apprehended at about 05:40 p.m.; and according to the meteorological department report, as furnished vidécommunication  dated  30.10.2024,  on  17.11.2022  the  sunset  time was 05:28 p.m. In view thereof, the I.O. was mandated to comply with the requirements of the second proviso to section 42(1) of the NDPS Act, and failing that with section 41(2) of the NDPS Act.

22.3.No record  has  been produced to  show that the I.O. recorded the“grounds of his belief” as required in the second proviso to section 42(1)  of  the  NDPS  Act.  Accordingly,  no  such  grounds  of  beliefs were forwarded to the I.O.’s immediate superior official, as is required under section 42(2) of the NDPS Act, either.

22.4.Furthermore, no record has been produced to show  that the I.O. sought any authorization for search of the premises or for arresting the  petitioner,  as  is  mandated  by  section  41(2)  of  the  NDPS  Act. The ACP’s note on the disclosure statement of co-accused Praveen, basis which the petitioner is stated to have been arrested, only  records  that  the  statement  has  been“seen”by  the  ACP,  but the ACP does not appear to have given any authorisation for arresting the petitioner. In addition, in his cross-examination recorded  on  06.02.2025,  the  Reader  to  the ACP  has  categorically stated  that  after receiving  the disclosure  statement  of  Praveen, no search authorization was issued by the ACP.

22.5.Also,  in  his  statement  recorded  on  10.01.2023  under  section  161 Cr.P.C., which  is  part  of the  case diary,  the  ACP  expressly states that he had authorized the I.O. for search, seizure, and apprehension of co-accused Umesh. Nowhere does the ACP affirm that he had granted any authorization as required under section 41 of the NDPS Act for the petitioner’s arrest.

22.6.Moreover, the record also shows, that the petitioner has been in judicial custody for more than 02 years and 07 months as of 10.07.2025, which would make more than 03 years as of date; and only 01 out of 29 prosecution witnesses has been examined so far. Clearly therefore, the possibility that trial would be completed anytime soon, is extremely remote.

It needs no reiteration that Chapter V of the NDPS Act, of which sections  41  and  42  comprise  an  important  part,  sets-out  the  procedure mandated by the Legislature for entry, search, seizure and arrest in relation to offences under that statute. The granular detail in which the Legislature has  worded  the said provisions shows  the significance that the Legislature intended to attach to the procedures comprised therein.

Considering the serious consequences that attach to offences under the NDPS Act, the Legislature, in its wisdom, has thought it appropriate to meticulously provide for the requirement of authorisation from superior officials for entry, search, seizure and arrest, while at the same time allowing  for entry, search, seizure and  arrest  at  times  when  it may not be practicable or desirable to await such authorisation subject however to other very specific requirements that must be adhered-to at such times. The Legislature has therefore ring-fenced the power of such entry, search, seizure and arrest, to ensure that those acts are not conducted wantonly.

In keeping with the celebrated principle of Nazir Ahmed vs. King Emperor, 1936 SCC Online PC 41 where the law gives the power to do a certain thing in a certain way, it must be done only in that way, or not at all.

In view of the foregoing facts and circumstances, this court is inclined to grant to the petitioner–Mohan Babu Gupta s/o Om Sharan Gupta–regular bail pending trial, subject to the following conditions:

26.1.The petitioner shall furnish a personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with 02 sureties in the like amount from family members, to the satisfaction of the learned trial court;

26.2.The petitioner shall furnish to the Investigating Officer a cellphone number on which the petitioner may be contacted at any time and shall ensure that the number is kept active and switched-on at all times;

26.3.If the petitioner has  a passport, he shall surrender the same to the learned  trial  court  and  shall  not  travel  out  of  the  country  without prior permission of the learned trial court;

26.4.The petitioner shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or  other  persons  acquainted  with  the  facts  of  case.  The  petitioner shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial; and

26.5.In case of any change in his residential address/contact details, the petitioner shall promptly inform the I.O. in writing.

Since the petitioner is facing trial and would therefore be appearing before the learned trial court from time-to-time, it is not considered necessary  to  impose  a  reporting  requirement  as  a  condition  of  regular bail.

Nothing in this order shall be construed as an expression of opinion on the merits of the pending matter.

A copy of this order be sent to the concerned Jail Superintendent forthwith.

The petition stands disposed-of in the above terms.

Other pending applications, if any, are also disposed-of.