Malachy Yenkwuom vs State Of Nct Of Delhi on 1 December, 2025

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Delhi High Court - Orders

Malachy Yenkwuom vs State Of Nct Of Delhi on 1 December, 2025

1. Petition under Section 483 of the Bharatiya Nagaraik Suraksha Sanhita, 2023 (hereinafter referred to as „B.N.S.S.‟) has been filed on behalf of the Applicant, Malachy Yenkwuom for grant of Regular Bail in FIR No. 271/2022 under sections 21(b)/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as „NDPS‟) in case no. SC/521/2022.

2. Briefly stated, Malachy Yenkwuom, was arrested by Special Cell, Delhi for the alleged offences under Section 21(b)/29 of NDPS Act and Section 14 of the Foreigners Act. It is submitted that he has already undergone judicial custody for a period of about three years four months from 26.08.2022.

3. It is asserted that he has been falsely implicated in this case. The entire case of Prosecution is based on concocted and fabricated facts and the investigations are faulty. It is alleged that he was found in possession of 100 grams of Heroin, which is intermediate quantity and the rigors of Section 37 of NDPS Act, is not attracted.

4. The Bail is sought on the grounds that there is no applicability of This is a digitally signed order.

5. It is further asserted that there was no compliance with mandatory provisions of Section 50 NDPS, which requires that the Gazette Officer should be independent. Reference is made to State of Rajasthan vs Premanand & anr. (2014) 5 SCC 345, that the Gazette Officer called for the compliance of Section 50, has to be independent and must not have any knowledge about the case whatsoever.

6. The next ground agitated for grant of Bail is that the Applicant is not „a flight risk‟ and has already served conviction under the Foreigners Act. The Applicant submits that he poses no "risk of absconding" or "evading the judicial process". In compliance with the directions of the Hon‟ble Trial Court, the Applicant has already deposited his original Passport, thereby ensuring that he cannot travel outside the jurisdiction, without prior permission of the Hon‟ble Court.

7. It is further stated that the Applicant was previously implicated in FIR no. 693/2021, PS Kalkaji, under Section 14 of the Foreigners Act, 1946, on allegations of lacking valid documentation to entry into India and to remain in India. That case resulted in his conviction in Crl. Case No. 8055/2021 and the Applicant has duly undergone the entire sentence imposed therein.

8. It is further asserted that there is non-compliance of Article 22(1) of the Constitution of India read with Section 50 C.r.P.C,as the arrest of the Applicant is vitiated by a grave and fundamental violation of constitutional and statutory safeguards. Reliance is placed on Vihan Kumar v. State of Haryana, (SLP (Crl.) No. 13320 of 2024) wherein the Hon‟ble Supreme Court held that compliance with Article 22(1) is not a mere formality but 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 12/12/2025 at 20:51:57 mandatory constitutional requirement. It has been further observed that any non-compliance with Article 22(1), even in cases where there may exist statutory bars to bail, constitutes a valid and substantial ground for the grant of Bail. In view of the foregoing, the arrest and subsequent detention of the Applicant is illegal and this non-compliance with mandatory legal and constitutional provisions constitutes a justifiable ground for the grant of bail.

9. It is asserted that "no independent witnesses" were joined and all the witnesses are government officials. Reliance is placed on Kishan Chand v. State of Haryana (2013) 2 SCC 502 wherein it was observed that the absence of independent witnesses casts doubt on the prosecution‟s case. Reliance is also placed on Krishan @ Babu v. State (Bail Appln. 2804/23) by which the Hon‟ble Delhi High Court held that the absence of independent witnesses is a relevant factor for granting bail, particularly when recovery is made from a public place.

10. The next ground agitated for grant of Bail is that there was no photography or videography conducted at the time of search and seizure, for which reliance has been placed on The "Drug Law Enforcement Field Officer‟s Handbook", Narcotics Control Bureau, Ministry of Home Affairs Government of India

11. It is further submitted that the Applicant is in judicial custody for over 35 months. The prolonged pre-trial detention violates the Applicant‟s fundamental right to a speedy trial under Article 21 of the Constitution of India. Any further incarceration would in fact amount to conviction without trial. Hence, the prayer is made that he be granted Bail.

12. Reliance has been placed on Manish Sisodia v. Directorate of Enforcement SLP (Criminal) No. 8772/2024 wherein the Hon‟ble Supreme 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 12/12/2025 at 20:51:57 Court held that the settled constitutional principle that the right to a speedy trial under Article 21 of the Constitution applies irrespective of the gravity of the offence. The Supreme Court has observed that where the State or the prosecuting agency is unable to ensure a timely trial, it cannot oppose bail solely on the ground that the alleged offence is serious. The Court further emphasised that bail is not to be treated as a form of punishment, and that the long-standing rule that bail is the rule and jail is the exception, is often applied in breach by trial courts and High Courts who, out of an abundant caution, tend to err on the side of refusal. Such reluctance results in unnecessary incarceration and contributes to an avoidable influx of bail petitions before the Supreme Court.

13. The judgment thus, calls for a reaffirmation of the principle that unless compelling circumstances exist, liberty should not be curtailed, and pre-trial detention should not become the norm.

14. Reliance is also placed on Mohd Muslim Hussain v. State of NCT of Delhi wherein that Hon‟ble Delhi High Court held that that imprisonment during trial poses grave risks to the personal liberty and dignity of an accused. The Court observed that prolonged pre-trial incarceration leads to "prisonisation"; a phenomenon described as the loss of individual identity wherein the accused becomes merely a number, stripped of personal possessions, autonomy, dignity and meaningful social relationships. The Court further noted that prison culture can have a corrupting influence, where criminal behaviour becomes normalized and, at times, even valorized, increasing the risk of the accused being further drawn into criminality. It was also held that such incarceration disproportionately affects individuals from economically weaker sections, as it results in immediate loss of 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 12/12/2025 at 20:51:57 livelihood, destabilisation of families and long-term social alienation. Given that an acquittal cannot remedy these consequences, the Court emphasised that judicial sensitivity is required, particularly in cases involving special Statutes with stringent provisions, and that trials must be taken up and concluded expeditiously. On this reasoning, the Court directed that the appellant be released on bail, subject to appropriate conditions.

15. Status Report has been filed on behalf of the State wherein it is stated that, pursuant to sustained surveillance over several months on drug syndicates operating in Delhi-NCR, five mobile numbers used by suspected traffickers were lawfully intercepted. On 26.08.2022, acting on secret information and after due compliance of Sections 42 and 50 of the NDPS Act, a raiding team led by SI Nishant apprehended the accused Malachy Yenkwuom and co-accused Dhruv Chopra and Saiyam Kapoor near MB Road, opposite IGNOU Road Cut, Saket, Delhi, from whose possession 100 grams of heroin, 50 grams of heroin and 4 grams of methamphetamine, and 4 grams of methamphetamine respectively were recovered.

16. Their mobile phones were seized and kept open for investigation, and during interrogation, accused Dhruv disclosed that he financed the syndicate, procured narcotics from accused Malachy, and supplied them further to Bars and Pubs through accused Saiyam.

17. Malachy disclosed that he procured drugs from one Oniyeme of Chhattarpur.

18. The seized mobile phones revealed WhatsApp chats, images, voice messages and call records establishing their regular communication, and CDR analysis further coroborated their nexus. Sampling of the recovered contraband was conducted under Court supervision on 20.09.2022 and the This is a digitally signed order.

19. After due compliance of all the formalities, present FIR No. 271/2022 was registered and charge sheet was filed on 10.10.2022 after the completion of investigation. During interrogation, MHA report regarding genuineness of Accused Malachy‟s passport and visa has been received and on the basis of the report, it says that the passport is fake and thereafter Section 468 IPC was added against the Accused Melachy Yenkwuom.

20. It is further stated that the Passport and Visa Documents produced by accused Malachy were found to be fake, as per reports of MEA/FRRO, resulting in the addition of Section 468 IPC. The accused is a foreign national with no permanent address in India, raising strong apprehension of absconding and re-engaging in drug trafficking. The charge-sheet has since been filed on 10.10.2022 and, in view of the aforesaid material, the State has opposed the grant of Bail.

21. Thereafter, Accused Melachy Yenkwuom provided another passport bearing no. A12642409. Copy of the passport of the Accused Malachy Yenkwuom was sent to IB (FRRO). IB report says that "Available Travel records have been checked on given passport number from 01.01.1988 to 10.08.2023 and no details/records of given passport number have been traced."

22. Due compliance of the provisions by giving Notice under Section 50 of NDPS was made to all three. Accused, apprehended on suspicion of drug trafficking. 100 grams of Heroin was recovered from the right front pocket of his lower garment.

23. From the search of Co-Accused/Dhruv Gupta and Saiyam Kapoor, 50 This is a digitally signed order.

24. It is further contended that the Applicant was involved in the past in the FIR No. 693/2021 under Section 14 of the Foreigners Act, 1946 registered at Police Station Kalkaji, New Delhi for lacking valid documentation to entry into India and to remain in India. The case resulted in his conviction in Crl. Case No. 8055/2021 and the Applicant has duly undergone the entire sentence imposed therein.

25. The Stated submitted that it has been revealed that the accused persons were in continuous telephonic communication with each other, throughout the relevant period. The WhatsApp data extracted from their mobile devices, shows the exchange of text messages, voice messages, images and calls, thereby indicating their close coordination in the procurement, financing and distribution of narcotic substances.

26. It is claimed that in fact, it is an Organized Drug Syndicate. The Applicant is a key link in a narcotic drug distribution network, as evidenced by multiple disclosures/WhatsApp communications, CDR analysis and direct recovery from the person. Considering the nature and gravity of the offence and the role of the Applicant, there is a strong possibility that he may abscond or re-engage in similar conduct.

27. The State further asserts that the mobile phones seized from the accused persons, contained deleted WhatsApp chats, indicating deliberate destruction of potential evidence. The devices were therefore preserved, sealed and sent for forensic evaluation. The conduct of the accused persons in deleting communication records, further supports the prosecution's contention that they were consciously attempting to conceal their This is a digitally signed order.

28. Further, during investigation, the Passport and Visa submitted by accused Malachy Yenkwuom, were forwarded to the Ministry of External Affairs and the Bureau of Immigration for verification. The reports received confirm that the earlier Passport used by the accused was fake and that no Visa had ever been issued to him on the Passport numbers claimed. This revelation resulted in the addition of Section 468 IPC. Such circumstances reflect not only the accused‟s lack of any verifiable residential status in India, but also his capacity to fabricate documents, heightening the risk of absconding.

29. It is further noted that the recovered contraband is of intermediate quantity in the case of accused Malachy Yenkwuom and of small quantity in the case of the other co-accused Dhruv Chopra and Saiyam Kapoor. However, the nature of the syndicate, the financial structure, and the international link suggested by Malachy‟s Fake Passport, indicate organized illicit trafficking, which is a factor of grave concern.

30. The Bail is opposed on the ground that the accused Malachy Yenkwuom, a foreign national with no permanent or verifiable residence in India, and is integrally involved in the procurement and supply of narcotics. Accused Dhruv Chopra has admitted to financing the entire operation, purchasing narcotics from accused Malachy and distributing them through accused Saiyam Kapoor. The role of each accused thus, stands corroborated by their own statements, digital evidence and the recovery effected from their possession.

31. The State has, therefore, opposed the grant of bail on the grounds that the accused persons are part of an organized drug trafficking network and 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 12/12/2025 at 20:51:57 substantial quantities of narcotic substances have been recovered from them. The digital evidence demonstrates continued communication and coordination between them and the Accused is a foreign national with a fake passport and is likely to abscond.

32. It is further noted that the earlier Bail Application was dismissed as withdrawn by the Hon‟ble Delhi High Court on two occasions vide Orders dated 16.05.2023 and 18.07.2024. Further, the Bail Application was also dismissed by this Hon‟ble Court on 31.08.2023.

33. The Bail is further opposed on the ground that release on bail may lead to tampering with evidence or influencing witnesses. It is further stated that the investigation is still pending, particularly with respect to the FSL reports and the verification of digital data, and that custodial interrogation is essential for tracing the source and the larger network involved. Submissions heard and record perused.

34. As per the case of the Prosecution, on the basis of a secret information, a raid was conducted by SI Nishant along with other staff after completing the process under Section 42 NDPS Act. Accordingly, a trap was laid and the Applicant was arrested on 26.08.2022 and 100 gms of Heroin was seized from his person.

35. He is in judicial custody since then i.e. 26.08.2022. Chargesheet against him already stands filed in the Court.

36. The Applicant has pleaded long incarceration and delay in conclusion of trial for grant of Bail. He has also pleaded partiy with other two co- accused namely, Dhruv Chopra and Saiyam Kapoor, who were also found in possession of the narcotics and have already been admitted to Bail.

37. At this stage, it is pertinent to mention the recent judgment of 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 12/12/2025 at 20:51:57 Apex Court in Union of India vs. Vigin K Varghese, 2025 INSC 1316 wherein it has been observed that long incarceration and dealy in trial, alone, cannot be the basis for grant of Bail. However, this caution of the Apex Court was in cases pertaining to commercial quantity where the stringent Bail conditions of Section 37 NDPS are applicable.

38. In the instant case, it is the case of the Prosecution that the Applicant was apprehended with 100 grams of Heroin, which is an intermediate quantity. Thus, the rigours of Section 37 NDPS Act would not apply.

39. In this regard reference may be made to the judgment in Sami Ullaha vs. Superintendent Narcotic Control Bureau, (2008) 16 SCC 471 wherein it is observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to Bail Petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of Bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the Bail.

40. In such circumstances, the Court has to consider the parameters as prescribed in relation to grant of Bail.

41. While dealing with the claim for Bail by a Foreign National under the special enactments, in view of prolonged incarceration, the Apex Court in Sheikh Javed Iqbal vs State of Uttar Pradesh, in Criminal Appeal No. 2790 of 2024 decided on 18.07.2024 had observed that the personal liberty of a person under Article 21 is sacrosanct and the prolonged incarceration cannot be permitted under the garb of statutory embargo.

42. The Apex Court in the case of Man Mandal & Anr. v. The State of West Bengal in SLP(CRL.) No. 8656/2023 had granted Bail to the Petitioner 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 12/12/2025 at 20:51:57 therein, in an FIR for offences under the NDPS Act, on the ground that the accused had been incarcerated for a period of almost two years and the trial was likely going to take considerable amount of time.

43. The Applicant is in custody since his arrest on 26.08.2022 and only 2 of the 23 Prosecution witnesses have been examined and thus, the trial is at a very nascent stage and is going to take long to conclude.

44. In view of the aforestated observations, this Court is of the considered opinion that the continued incarceration of the Petitioner and the trial being in its nascent stages, it would serve no fruitful purpose to keep the Applicant in custody.

45. Further, the Prosecution has raised apprehensions regarding the Petitioner‟s status as a foreign national, positing that there exists a likelihood of his absconding, if released on bail. This long standing view did not find favour with the Apex Court recently in Onyeka Samuel vs State of Himachal Pradesh, in SLP (Crl) Diary No 26692 of 2024 decided on 12.08.2024. This Court, while not discounting the concerns raised, is also cognizant of the fact of being a foreign national, cannot be a ground to deny Bail.

46. Accordingly, in view of the entire conspectus of facts and circumstances as noted hereinabove, the petitioner is admitted to Regular Bail in the subject FIR bearing No. 271/2022 for the offences punishable under Sections 21(b)/29 of NDPS Act registered at Police Station Crime Branch, on her furnishing a personal bond in the sum of Rs. 30,000/- with two surety bonds of the like amount, subject to the satisfaction of the learned Trial Court/CMM/Duty Magistrate and further subject to the following conditions:

i. The Petitioner shall not leave the country without prior 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 12/12/2025 at 20:51:57 permission of the learned Trial Court.

ii. The Petitioner shall report to the concerned/local Police once a week between 4:00 PM to 6:00 PM to mark his presence. iii. The Petitioner shall immediately intimate the learned Trial Court by way of an affidavit and to the Investigating Officer regarding any change of residential address.

iv. The Petitioner shall appear before the learned Trial Court as and when the matter is taken up for hearing.

v. The Petitioner is directed to give his mobile number to the Investigating Officer and keep it operational at all times. vi. 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. vii. The Petitioner shall also 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. viii. In terms of the judgment of the Supreme Court in Frank Vitus v. Narcotics Control Bureau & Ors, 2025 INSC 30, the State shall immediately communicate the order granting bail, to the concerned Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992, who in turn, shall communicate the order to all concerned authorities including civil authorities.

47. Further, no observations made above shall tantamount to be an expression on the merits of the Petitioner‟s case and they have been made for the purpose of consideration of Bail alone.

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 12/12/2025 at 20:51:57

48. A copy of this Order be sent to the Jail Superintendent concerned for information and necessary compliance.

49. Accordingly, the present Bail Application stands disposed of.

NEENA BANSAL KRISHNA, J.

DECEMBER 1, 2025 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 12/12/2025 at 20:51:57

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Delhi High Court - Orders