Safiya Malik

The High Court of Delhi Single Bench of Justice Saurabh Banerjee has refused regular bail to a foreign national accused in an NDPS case involving seizure of 256 grams of heroin, a commercial quantity, recovered from a co-accused during an interception in Delhi. The Court found that the statutory threshold for bail was not met and took into account that the co-accused, though earlier enlarged on bail, later jumped bail and remains absconding, with coercive process issued. On the facts, the application was dismissed, with the Court treating the absconding co-accused as a relevant consideration while assessing bail.

The case arose from a regular bail application filed by an accused seeking release in proceedings originating from an FIR registered under the Narcotic Drugs and Psychotropic Substances Act, 1985, along with provisions of the Foreigners Act, 1946. The prosecution case was that based on secret information, the police intercepted a vehicle in which the applicant and a co-accused were travelling during late evening hours. Upon search, no contraband was recovered from the applicant or the vehicle; however, heroin weighing a total of 256 grams was allegedly recovered from a bag worn by the co-accused. Both individuals were found to be foreign nationals with expired travel documents and were arrested thereafter.

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The applicant contended that he had been falsely implicated, stating that no recovery was affected from his possession and that he was merely accompanying the co-accused. It was also argued that statutory safeguards relating to search and seizure were not complied with, that no independent public witnesses were associated, and that there was no photographic or videographic evidence of the recovery proceedings. The prosecution opposed bail on the ground that the recovery constituted a commercial quantity, attracting the statutory bar on bail, and further asserted that the applicant lacked permanent roots in India and had a prior involvement in narcotics-related offences.

The Court noted that “since the present case is pertaining to recovery of 256 grams of heroin, a ‘commercial quantity’ under the provisions of the NDPS Act, the rigours of Section 37 of the NDPS Act will be applicable” and that bail could be granted only upon satisfaction of the twin statutory conditions.

While examining the applicant’s conduct, the Court recorded that “the applicant herein has stated to have committed the present offence while he was already released on bail in FIR No.351/2019… registered under Section 22 of the NDPS Act, it reflects a continuing pattern of criminal conduct.” The Court further observed that “since the applicant is a foreign national with no permanent place of residence or roots in India, renders him at flight risk.”

On the stage of the trial, the Court stated that “this is a case where evidence is still ongoing and only 2 out of the 19 prosecution witnesses have been examined before the learned Trial Court so far.” It was also noted that “it is not a case of the applicant that there has been any delay of any kind… it is not a case of any inordinate delay as such.”

Regarding parity, the Court took note of the conduct of the co-accused and observed that “his co-accused, after being granted regular bail is untraceable, which in turn has resulted in issuance of NBW against him,” treating the same as a relevant consideration.

On alleged non-compliance with statutory safeguards, the Court recorded that “the issue of compliance or otherwise with a statutory provision being subjective requires trial and since this is the stage when the applicant is seeking grant of bail, it is not being considered at this stage.” The Court further stated that “simply because there is no photographic or videographic evidence cannot lend any support for the applicant to seek bail.”

Finally, the Court observed that “releasing the applicant on bail, at this stage, may result in the applicant influencing the witnesses and/or tampering with evidence,” and that “granting bail to the applicant could lead to frustrating the administration of justice.”

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The Court concluded that “this Court is, thus, not inclined to grant bail to the applicant.” It accordingly directed that “the present application is dismissed in the aforesaid terms. The observation made, if any, on the merits of the matter are purely for the purposes of adjudicating the present application and shall not be construed as expressions on the merits of the matter.”

Advocates Representing the Parties

For the Applicant: Mr. Javed Khan, Advocate

For the Respondent/State: Ms. Meenakshi Dahiya, APP, along with Ms. Vanshika Singh, Advocate, Mr. Bhanu Pratap Singh, Advocate, and SI Akash Deep, Special Staff, North District

Case Title: Okoli Anayo Franklin v. State (NCT of Delhi)

Neutral Citation: 2026: DHC:776

Case Number: BAIL APPLN. 4027/2025

Bench: Justice Saurabh Banerjee