Delhi High Court - Orders
Thawe vs State Nct Of Delhi on 22 September, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1753/2025 & CRL.M.A. 14144/2025
THAWE .....Petitioner
Through: Mr. Anup Kr Das, Mr. Uday Chauhan
and Mr. Aman Bidhuri, Advocates
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State with SI
Deepak Yadav
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 22.09.2025
1. Bail Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023/Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") has been filed on behalf of the Applicant, Thawe, seeking Regular Bail in relation to FIR No. 383 of 2022 dated 14.10.2022 under Section 21 of the NDPS Act and Section 14 of the Foreigners Act, 1946, registered at P.S. Saket.
2. The case of the Prosecution is that on 14.10.2022, at around 06:15 PM, secret information was received that an African national who supplies smack/heroine in Delhi-NCR, would be arriving at Khokha Market, Pushp Vihar, Saket, to supply a large quantity of the substance. On this information, a raiding team was constituted and a trap was laid near Khokha Market. At about 07:20 PM, an African national wearing a white T-shirt and blue jeans was apprehended. He disclosed his name as Thawe, aged 30 years, a This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2025 at 21:55:54 Tanzanian national. He was informed about the information received, his legal rights, and given the option to be searched before a Gazetted Officer or a Magistrate. A Notice under Section 50 NDPS Act was served upon him.
3. In compliance with the procedure under the NDPS Act, a search was conducted. During the search, an Orange bag tied around his waist was found containing a transparent polythene packet of powdered material, which was suspected to be Smack. The weight was approximately 307 grams. Thereafter, the Applicant was arrested and sent to judicial custody.
4. Sampling of the contraband was conducted on 07.11.2022 and the exhibits were deposited in the FSL on 28.11.2022. As per the FSL report, the recovered substance was found to contain Diacetylmorphine, 6-Monoacetylmorphine, Acetylcodeine, Caffeine and Acetaminophen. The Chargesheet has been filed, and Charges under Section 21 NDPS Act and Section 14 Foreigners Act were framed against the Applicant on 19.12.2023. Out of 15 prosecution witnesses, 3 have been examined so far.
5. The present Bail Application has been filed on the grounds that the Applicant has been in judicial custody since 14.10.2022, i.e., for about 2 years and 7 months, which amounts to a violation of his fundamental right to personal liberty and speedy trial. The investigation is complete and the Chargesheet has already been filed.
6. It is submitted that the Prosecution failed to secure even a single independent witness from the busy locality of Pushp Vihar, which casts doubt on the recovery and suggests the possibility of planting of contraband by the Police. Further, the Investigating Officer did not video graph the spot, which is crucial to prove guilt. Reliance is placed on Gopal Dangi v. State (NCT of Delhi), 2024 SCC OnLine Del 4825.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2025 at 21:55:54
7. It is further submitted that while the Prosecution claims recovery from an Orange handbag carried by the Applicant, as per order dated 07.11.2022, the Ld. MM recorded that upon opening the seized substance, two handbags, one Orange and one Black were found.
8. It is also urged that there was a delay of more than 21 days in depositing the samples before the FSL. Reliance is placed on Rishi Dev v. State, 2008SCC OnLine Del 1800.
9. It is further contended that there is aß likelihood of delay in conclusion of trial, and in such circumstances, the rigours of Section 37 NDPS Act may be relaxed. Reliance is placed on Union of India v. K.A. Najeeb, (2021) 3 SCC 713; Jitendra Jain v. NCB, SLP (Crl.) No. 8900/2022; BadshaSk v. State of West Bengal, SLP (Crl.) No. 9715/2023 decided on 13.09.2023; Man Mandal & Anr. v. State of West Bengal, SLP (Crl.) No. 8656/2023 decided on 14.09.2023; Dheeraj Kumar Shukla v. State of U.P., 2023 SCC OnLine SC 918; Ankur Chaudhary v. State of M.P., SLP (Crl.) No. 4648/2024.
10. The Applicant has clean antecedents, and there is no likelihood of him indulging in similar offences if granted Bail.
11. Accordingly, it is prayed that the present application be allowed and the Applicant be enlarged on Bail.
12. Status Report has been filed on behalf of the Respondent/State, detailing the facts leading to the present FIR. It is submitted that strict parameters must be applied while considering bail in NDPS Act cases. Reliance is placed on State of M.P. v. Kajad, (2001) 7 SCC 673, wherein it was observed that negation of bail is the rule and grant is an exception under Section 37(1)(b)(ii) NDPS Act.
13. It is further submitted that at the stage of Bail, it is neither necessary nor This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2025 at 21:55:54 desirable to meticulously weigh the evidence to arrive at a finding of guilt. Reliance is placed on Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624.
14. Further reliance is placed on Union of India v. Ram Samujh & Ors., (1999) 9 SCC 429, where the Apex Court set aside the Bail granted by the High Court, holding that the rigours of Section 37 cannot be ignored. Reliance is also placed on State of Kerala v. Rajesh, Crl. A. Nos. 154-157/2020; Union of India v. Md. Nawaz Khan, Crl. A. No. 1043/2021; NCB v. Mohit Aggarwal, (2022) 18 SCC 374.
15. The Bail Application is opposed on the ground that the offence committed is a grave one posing a threat to society, and there is a likelihood of the accused indulging in similar activities if released on bail. The contraband recovered-Diacetylmorphine, 6-Monoacetylmorphine, Acetylcodeine, Caffeine and Acetaminophen, is commercial in quantity. It is also emphasized that the Applicant is a foreign national, staying in India without a valid visa or passport.
16. Accordingly, it is prayed that the present Bail Application be dismissed Submissions heard and record perused.
17. It is the case of the Prosecution that the Applicant, a foreign national, was apprehended on the basis of secret information and a recovery of 307 grams of smack/heroin was affected, which falls under the category of commercial quantity.
18. Section 37 of the NDPS Act lays down the twin conditions to be satisfied at the time of consideration of Bail. The Court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on Bail.The This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2025 at 21:55:54 Applicant was apprehended and recovery of commercial quantityof 307 grams of Smack has been made, and therefore it cannot be said that prima facie there is nothing to show that he has not committed the crime.
19. Another contention raised on behalf of the Petitioner is that according to the Prosecution, the Applicant was apprehended and an Orange bag was recovered from him, in which the alleged contraband was found. However, as per the Petitioner, when the sampling was carried out before the Magistrate, an Orange bag and a Black bag were found. The Petitioner, therefore, apprehends that the recovered contraband may have been tampered.
20. It cannot be ignored that at the stage of considering an Application for Bail, this Court cannot enter into a meticulous examination of the evidence as observed by the Apex Court in Union of India v. Rattan Mallik, (2009) 2 SCC
624.Apparently, when the Applicant was apprehended, the colour of the bag was described as Orange while at the time of sampling, colour of the bag was stated to be Black and Orange and it was nowhere stated that there were two bags. Moreover, whether there were two bags (orange and black) is a matter of trial, which at this stage does not falsify the Prosecution's case so as to entitle the Applicant to Bail. Therefore, this ground is untenable.
21. The Petitioner further seeks bail on the grounds of various procedural irregularities allegedly committed by the Prosecution. It is also urged that ACP Rajesh Kumar, being a member of the raiding team, cannot be treated as an independent witness. In this regard, it is noted that the Applicant failed to give a clear response when offered the option of having his search conducted before a Gazetted Officer or a Magistrate.
22. Another contention raised on behalf of the Petitioner is that there was a delay of 21 days in sending the sample to the FSL.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2025 at 21:55:54
23. As far as these grounds are concerned, according to the I.O., the option was duly given to the Accused to have his search conducted before a Gazetted Officer or a Magistrate, but he did not provide any clear answer. Again, it cannot be overlooked that whether the procedural compliances were strictly adhered to is a matter of trial, which at this stage does not falsify the case of the Prosecution or entitle the Applicant to Bail.
24. The Apex Court in Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372, has observed as under;
50.5. Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
25. Similarly, the Apex Court in State of Karnataka v. Sri Darshan, 2025 SCC OnLine SC 1923, has held that a procedural lapse, by itself, does not justify the grant of Bail in cases involving serious offences.
26. The next contention raised is that the Applicant has been in Judicial Custody since 14.10.2022 and the trial is likely to take long, entitling the Applicant to Bail. While it is established from various judgments that delay in conclusion of trial is one of the grounds for Bail, but here is a case where 307 grams of Commercial quantity of Heroin was recovered from the Applicant.
27. The three Judge Bench of the Apex Court in Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18 SCC 374, has observed that the length of period of his custody or the fact that the charge-sheet has been filed and the trial has commenced, are by themselves not considerations that can be treated as This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2025 at 21:55:54 persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.
28. Similarly, in Gurwinder Singh v. State of Punjab, (2024) 5 SCC 403, the Apex Court has observed that mere delay in trial in grave offences, cannot be used as a ground to grant Bail.
29. In Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 775, the Apex Court while relying upon State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 has observed that long period of incarceration cannot itself be the ground for grant of Bail.
30. It is also important to note that the Applicant is a foreign national and does not possess a valid passport or visa. The possibility of his fleeing from justice cannot be ignored.
31. Considering the gravity of the offence, and the fact that charges have already been framed and 3 out of 15 witnesses have been examined, it cannot be said that there is any inordinate delay in the trial. Rather, the trial is proceeding at its own pace.
32. The Application is, therefore, dismissed. Pending Applications are disposed of accordingly.
NEENA BANSAL KRISHNA, J.
SEPTEMBER 22, 2025 va This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2025 at 21:55:54