Delhi High Court - Orders
Sery Hubert vs State Of Nct Of Delhi on 27 November, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1639/2025, CRL.M.A. 12962-12963/2025
SERY HUBERT .....Petitioner
Through: Mr. Meghan, Advocate
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 27.11.2025
1. Present Bail Application under 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C")/ Section 483 BharatiyaNagarik Suraksha Sanhita (BNSS), 2023 read with Section 482 Cr.P.C. /528 BNSS has been filed on behalf of the Applicant/Sery Hubertfor seeking Regular Bail in FIR No. 223/2023 under Section 21/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as "NDPS Act") registered at P.S. Burari.
2. It is submitted that the Applicant‟s first Bail Application was dismissed in default on 04.03.2025 and second Bail Application was dismissed by the Ld. Sessions Court on 22.03.2025.
3. It is submitted that the Applicant is a peace-loving, law-abiding foreign national, residing at the given address and working in Delhi, to earn his livelihood.He is a young man striving to support his family and has been falsely implicated in the present case.
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4. The brief facts of the case are that on 25.02.2023, a secret information was received that two African nationals were involved in drug trafficking and would arrive near Rose Petal School, HaritVihar, Burari, Delhi, between 2:15 PM and 2:45 PM to supply a large quantity ofheroin. A raiding team was constituted.At about 2:20 PM, two African nationals arrived on a Yamaha Fascino (Blue), bearing registration No. DL-5SBC-4262, who were apprehended. The driver of the Scooty was identified as the Applicant/Sery and the Pillion Rideras Ugochukwu Paschal.
5. Upon personal search of both individuals, no incriminating substance was recovered. Thereafter, the scooty was searched, and a white polythene bag tied with a knot was allegedly recovered from its dickey, containing a mud/brownish ("matiyala") coloured powder, appearing to be heroin. The weight of the substance was found to be 552 grams, which was seized. Both the accused persons were arrested.
6. The grounds taken by the Applicant seeking Regular Bail are that a bare perusal of the Chargesheet itself reveals serious infirmities in the Prosecution case. The entire proceeding was conducted in a mechanical manner and no proper investigation was carried out at the spot.
7. It is submitted that no independent public witness was joined during the alleged recovery. Despite having prior information for more than an hour, no videography or photography of the alleged seizure, was conducted.
8. Furthermore, till date, no FSL Report has been filed, and therefore, it cannot even be conclusively stated that the substance recovered was narcotic in nature.
9. It is submitted that there is also no allegation, evidence, or material on record to show any sale transaction, purchaser or communication relating to This is a digitally signed order.
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10. The Charges have not yet been framed in the matter, and thereafter 19 Prosecution Witnesses would be recorded and the trial would take long. The Applicant is in judicial custody since 25.02.2023.
11. Lastly, it is submitted that the Applicant is neither a flight risk nor capable of tampering with evidence or influencing witnesses, especially since all the witnesses, are Police witnesses. Moreover, the Applicant has no previous criminal antecedents.
12. Hence, a prayer is made for grant of Bail.
13. Ld. Counsel for the Applicant has argued andsought Bail on the ground of parity, that the co-accused Ugochukwu Paschal, who was similarly placed, has been granted Bail by this Courtvide Order dated 21.08.2025 in Bail Application No. 2387/2025. Reliance has been placed on the Apex Court case of Union of India vs. Vigin K. Varghese, 2025 INSC 1316.
14. Ld. Add. P.P. for the Respondent/Statehas vehemently opposed the Bail Application. It is submitted that the Applicant is the main accused who was driving the scooty from which 552 grams of contraband was recovered. Submissions heard and record perused.
15. The case of the Prosecution is that on 25.10.2023, on the basis of the secret information, the Applicant and co-accused were apprehended while they were driving the scooty. No contraband was recovered from their personal search, but allegedly 552 grams of a substance which appeared to be heroin, was found in a white polythene bag inside the dickey of the scooty, leading to their arrest. The Applicant denies any involvement, asserting that 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 01/12/2025 at 21:55:34 the recovery is doubtful and was not verified by FSL and lack any evidence of supply or conscious possession.
16. At this stage, it cannot be overlooked that Section 37 of the NDPS Act, 1985, carves out a special provision for bail in respect of certain offences, including those involving a commercial quantity of narcotics. It reads as under:
"37. Offences to be cognizable and non-bailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless -
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."
17. The provision lays down two mandatory conditions, commonly known as the "twin tests," that must be satisfied before bail can be granted. The court must have "reasonable grounds for believing" that the accused is"not guilty"and is "not likely to commit any offence" if released. This standard issignificantly higher than the one for granting Bail in other criminal cases.
18. Furthermore, it is trite law that at the stage of Bail, this court 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 vs. State of Maharashtra, (2018) 11 SCC 458, wherein it was held as under:
"29. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though 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 01/12/2025 at 21:55:34 at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting Bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge."
19. In the recent judgement of Vinit K. Varghese, (supra), the Apex Court noted that Section 37 NDPS Act enacts a specific embargo on the grant of Bail and obligates the Court to record satisfaction on the twin requirements, in addition to the ordinary tests under the Code of Criminal Procedure.
20. It was further observed that it is the statutory threshold under Section 37(1)(b)(ii) NDPS Act which would disentitle the discretionary relief and grant of Bailmust necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the Prosecution‟s assertions of operative control and antecedent involvements, risks trenching upon appreciation of evidence which would be in the domain of trial court at first instance.
This is a digitally signed order.
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21. The three Judge Bench of the Apex Court in Narcotics Control Bureau vs. Mohit Aggarwal, (2022) 18 SCC 374, observed that in the said matter the narrow parameters of Bail available under Section 37 NDPS Act, were not satisfied and it was not safe to conclude that the accused person has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him.
22. It is in the light of the conditions provided under Section 37 of the NDPS Act that the bail application has to be considered. As per the Prosecution case, during the course of investigation, the owner of the scooty categorically stated that it was the Applicant, who had taken the scooty from him. The Applicant was driving the scooty and it was from the dickey of this very scooty that 552 grams of the alleged heroin was recovered. Thus, the assertion of the Applicant that he was not in conscious possession of the contraband in the vehicle and was unaware, is not tenable.Therefore, the contention that there is no evidence against the Applicant cannot be accepted at this stage.
23. The Applicant has sought the Bail on the ground of parity with the co-accused, Ugochukwu Paschal,who has already been granted Bail by this Court. This reliance is misplaced in view of the distinct and varying roles attributed to the two accused.
24. Bail was granted to the co-accused on the grounds that, first, there was no material to show that he was aware of any contraband stored in the vehicle, and second, there was no material to establish a conspiracy between the two accused.
25. However, the principle of parity cannot be invoked in a mechanical manner, particularly where the allegations and degree of involvement are 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 01/12/2025 at 21:55:34 materially different. As stated above, the Applicant was driving the scootywhich he himself took from the owner, and it was from this very scooty that the contraband was recovered. The co-accused was merely a pillion rider.
26. This specificity directly implicates the Applicant and distinguishes his role from that of the co-accused. The contention of the Applicant that he was unaware of the contraband in his vehicle, is not tenable.Accordingly, the grant of Bail to the co-accused cannot by itself, entitle the Applicant to similar relief.
27. Another ground raised by the Applicant is the delay in trial and has contended that even the FSL report has not yet been filed. However, the Chargesheet already stands filed. Ld. Add. P.P. has submitted that the first FSL Report has been received and shall be filed with the Supplementary Chargesheet. Charges are likely to be framed soon. Thecircumstances do not disclose any inordinate delay so as to infringe upon the rights of the accused. Moreover, the Chargesheet has been filed and the trial is proceeding at its own pace.
28. The aspect of delay in trial in such cases has already been considered by the Apex Court in Mohit Aggarwal (supra), wherein it was observed that,the length of the period of his custody or the factthat the charge-sheet has been filed and the trial has commenced are bythemselves not considerations that can be treated as persuasivegrounds for granting relief under Section 37 NDPS Act.
29. Similarly, in Gurwinder Singh vs. 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.
This is a digitally signed order.
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30. In GobarbhaiNaranbhaiSingala vs. State of Gujarat, (2008) 3 SCC 775, the Apex Court while relying upon State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21, has observed that long period of incarceration cannot, by itself be the ground for grant of Bail.
31. The Applicant has contended procedural lapse and that no videography was done during their apprehension. However, in totality of the prima facie case against the Applicant as stated above, it cannot be said to be a ground for grant of Bail. The Apex Court in State of Karnataka vs. 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.
32. Lastly, the Applicant is a foreign national with no discernible ties in India. The possibility of his absconding, 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.Thus, it is not a fit one for grant of Bail to the Applicant.
33. In view of the above analysis, considering the recovery of a commercial quantity of contraband, the strong prima facie case against the Applicant, the failure to meet the mandatory twin conditions laid down in Section 37 of the NDPS Act, and the grave risk of the Applicant, absconding if released on Bail, no case is made out for grant of Bail.
34. The Bail Application is, therefore, dismissed and disposed of accordingly.
NEENA BANSAL KRISHNA, J.
NOVEMBER 27, 2025 N 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 01/12/2025 at 21:55:34