Custody Without Authority Vitiates Arrest | Delhi HC Grants Bail In NDPS Case Citing Violation Of Fundamental Rights Under Articles 21 And 22
Safiya Malik
The High Court of Delhi Single Bench of Justice Amit Sharma held that the applicant was kept in illegal custody without authorisation from 21.05.2023 to 25.05.2023 and declared that "his arrest on 26.05.2023 stands vitiated." Despite the commercial quantity of contraband allegedly recovered, the court directed his release on bail, stating that the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India had been violated. The application seeking regular bail under Section 439 read with Section 482 of the Code of Criminal Procedure was allowed with specific conditions imposed on the applicant.
The applicant, holder of Ethiopian Passport No. EP7807550, arrived at IGI Airport, New Delhi on 21.05.2023 via Flight ET 686 from Addis Ababa. Customs officials intercepted him based on profiling. Initially, no contraband was found during his personal and baggage search under Sections 102 of the Customs Act and 50 of the NDPS Act. However, upon further questioning and issuance of notice under Section 103 of the Customs Act, the applicant admitted to ingesting capsules containing narcotics. He consented to an X-ray and subsequent medical procedure at Safdarjung Hospital for removal of said capsules.
The applicant was admitted to the hospital where, over 21.05.2023 to 22.05.2023, a total of 75 capsules were allegedly ejected and seized through three separate panchnamas. The capsules were tested with the Smiths IONSCAN 500 DT, yielding a positive result for 'Methaqualone'. Subsequent forensic analysis revealed the substance to be 'Cocaine Hydrochloride', weighing approximately 954 grams. The capsules were sealed, marked, and stored by customs.
A detention receipt and seizure under Section 43 of the NDPS Act were recorded. The applicant’s statement under Section 67 of the NDPS Act was recorded on 26.05.2023, where he allegedly admitted to transporting the contraband for delivery in Delhi on instructions from a person named Mohammad. He stated he undertook the act for monetary gain due to financial distress. His arrest was recorded the same day, and he was presented before the Special Court.
The applicant’s counsel argued that there was non-compliance with Section 42 of the NDPS Act, as the customs allegedly had prior information about the applicant's carriage of contraband but did not document this information as mandated. It was also submitted that from 21.05.2023 to 26.05.2023, the applicant was kept in unofficial custody without being produced before a Magistrate, and no intimation was given to family or the local police. The recovery of capsules from the applicant during this period, according to counsel, could not be used to fasten liability as procedures under law were not followed.
The customs authority countered that the applicant was intercepted based on profiling and not specific intelligence. It was submitted that he voluntarily consented to the medical procedure and that his stay at the hospital did not amount to illegal custody. Customs also contended that field testing and recovery were lawfully documented and conducted in accordance with Section 52A of the NDPS Act.
Justice Amit Sharma recorded "The applicant was in the continuous custody of the respondent from 21.05.2023 till 26.05.2023 without any authorisation." The court referenced multiple "Handing Over" and "Taking Over" memos among customs officers during this period, noting that these documents demonstrated continuous transfer of the applicant's custody. It stated, "such custody without any authority and without producing him before the concerned Magistrate or Special Court within 24 hours in accordance with law is completely illegal."
The court observed, "Even if the applicant was under medication for the procedure being carried out, the same cannot be a ground to keep him in custody." Justice Sharma cited Niranjan Singh v. Prabhakar Rajaram Kharote, stating that custody includes any form of duress or control by investigative agencies. It was recorded that the applicant had not contacted anyone during his hospitalisation, and customs officers admitted that they did not inform local police or the Ethiopian Embassy.
Further, the judgment quoted from Directorate of Enforcement v. Subhash Sharma, where the Supreme Court held: "Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22(2) ... even his fundamental right to liberty guaranteed under Article 21 has been violated." This was crucial in the court's determination that the applicant's continued detention without formal arrest or court production violated constitutional guarantees.
The court noted inconsistencies in the customs' own documents. While the complaint filed with the Special Court stated interception was based on profiling, the panchnama dated 26.05.2023 and the seizure order referenced "specific intelligence." As such, the court recorded: "It was incumbent upon the concerned Officer to comply with the provisions of the NDPS Act."
The court observed that compliance with Section 42 of the NDPS Act was mandatory once specific intelligence was available, but there was "no such compliance and the respondent proceeded to detain the applicant without complying with the aforesaid procedure." It noted that the report under Section 57 of the NDPS Act was submitted only on 26.05.2023.
The judgment also referenced the constitutional bench decision in State of Punjab v. Balbir Singh, observing that procedural safeguards under Sections 41, 42, 43, and 51 NDPS Act must be followed as part of the CrPC framework. The customs had not complied with these statutory requirements in the applicant's case.
The court allowed the application and directed that the applicant be released on bail upon furnishing a personal bond of Rs. 25,000/- with one surety of like amount to the satisfaction of the learned Trial Court/Link Court.
The court directed: "The applicant shall not leave India without the prior permission of the learned Trial Court."
It further directed: "The applicant is directed to give all their mobile numbers to the Investigating Officer and keep them operational at all times."
Justice Sharma instructed: "The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witness in any manner."
Finally, it was stated: "In case, it is established that the applicant has tried to tamper with the evidence, the prosecution will be at liberty to apply for cancellation of his bail."
The court further recorded: "Needless to state that, nothing mentioned hereinabove, is an opinion on the merits of the case or pending trial before the learned Trial Court and observations made herein are only for the purposes of the present bail application."
It concluded: "The application stand allowed and disposed of along with all the pending application(s), if any."
The bench ordered: "Let a copy of this judgment be communicated to the concerned Jail Superintendent for necessary information and compliance, forthwith."
Advocates Representing the Parties:
For the Petitioner: Mr. Arun K. Srivastva, Advocate, with Mr. Ashish Sindhu and Ms. Shahina Praveen, Advocates
For the Respondent: Mr. Jatin Singh, Senior Standing Counsel (through VC), and Mr. Ravi Arya, Superintendent, Customs
Case Title: Habiob Bedru Omer v. Customs
Neutral Citation: 2025: DHC:4870
Case Number: BAIL APPLN. 1978/2024
Bench: Justice Amit Sharma
[Read/Download order]
