Safiya Malik

The Delhi High Court has rejected a bail application filed by an individual accused of smuggling a commercial quantity of cocaine into India. The court found that the stringent conditions under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) were not met, and the evidence against the accused was substantial. The judgment stated the necessity of strict compliance with statutory safeguards and found no grounds to justify bail at this stage.

According to the Directorate of Revenue Intelligence (DRI), the accused, Som Dutt Sharma, was intercepted at Indira Gandhi International Airport upon arrival from Accra, Ghana via Addis Ababa, Ethiopia. The authorities had received prior intelligence indicating that the accused was likely to be carrying narcotic substances concealed in his baggage. Acting upon this information, a team of DRI officers positioned themselves at the arrival hall of Terminal 3 and identified the accused upon his disembarkation.

The accused was found carrying a black backpack and two pieces of checked-in luggage: a green trolley bag and a brown trolley bag wrapped in transparent plastic. When scanned through an X-ray inspection machine, no suspicious materials were observed in the black backpack or green trolley bag. However, the brown trolley bag exhibited irregularities, prompting the officials to conduct a more detailed examination.

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A notice under Section 50 of the NDPS Act was served to the accused, informing him of his legal rights regarding the search. He consented in writing to a search conducted by the DRI officers. The authorities then conducted a manual examination of the brown trolley bag. Upon removing the outer layers of clothing and other personal effects, they discovered that the bag was unusually heavy. Further scrutiny revealed a hard black plastic sheet affixed with screws on the lower portion of the bag’s walls.

On removing the plastic sheet, a concealed cavity was discovered, containing a white powdery substance packed inside transparent plastic. A preliminary drug detection test was conducted using a field-testing kit, which confirmed the presence of cocaine. The total gross weight of the seized substance was found to be 1.65 kilograms, significantly exceeding the threshold for a commercial quantity as defined under the NDPS Act.

The accused claimed that he had travelled to Sierra Leone to provide consultancy services related to geological mining. He stated that he had been contacted by a UK-based individual named Samira, who sought his expertise for a mining project. Upon reaching Sierra Leone, he was introduced to another individual, Usman, who coordinated his travel arrangements. The accused further asserted that he was given the brown trolley bag by his local contacts for carrying personal belongings, allegedly without any knowledge of the concealed narcotics.

However, DRI officials retrieved WhatsApp messages from the accused's mobile phone, indicating communication with individuals directing him on the delivery of the bag upon arrival in India. These messages also included instructions for checking into a specific hotel in Delhi, where an individual named Jane was to collect the luggage. Additionally, a train ticket from Ahmedabad to Delhi in the accused’s name was found, raising further suspicions about the intended transportation of the contraband.

The court examined the bail plea in light of the twin conditions under Section 37 of the NDPS Act, which require the accused to demonstrate that:

1. There exist reasonable grounds to believe that he is not guilty of the alleged offense.

2. He is unlikely to commit further offenses if released on bail.

The court recorded: "As per the case of the Prosecution, the Petitioner was found in possession of 1.65 Kg of Cocaine, which is a commercial quantity, thereby mandating the satisfaction of the stringent twin conditions under Section 37 of the NDPS Act."

The defense contended that there was non-compliance with Section 50 of the NDPS Act, as the accused was not provided an opportunity to have his search conducted before a magistrate or gazetted officer. However, the court noted that the contraband was recovered from the accused’s baggage rather than his person, stating: "Section 50 of the NDPS Act applies to personal searches and does not extend to baggage or goods being carried by an individual."

Regarding the accused’s argument that the prosecution had not complied with Section 52A of the NDPS Act, which mandates the immediate production of seized contraband before a magistrate, the court found no significant procedural lapses that would invalidate the prosecution’s case. The court cited Narcotics Control Bureau v. Kashiv 2024 INSC 1045, observing: "Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor entitle the accused to be released on bail."

The defense also cited a delay in the trial process, contending that the accused had been incarcerated for several months without a conviction. The court reviewed the case history and noted that the charge sheet had been filed and prosecution witnesses were being examined. It recorded: "At this stage, it cannot be said that there is a delay of any nature, which would entitle the Applicant to Bail."

The court further examined the accused’s claims of coercion by DRI officials. It noted that the accused had engaged in detailed conversations regarding the delivery of the bag and had even coordinated his hotel check-in with the intended recipient of the narcotics. The court found that these interactions contradicted his claim of being an innocent courier.

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The prosecution presented additional evidence, including airline records confirming that the seized brown trolley bag was tagged in the accused’s name. The court observed: "The Applicant was not only aware of the contents of his baggage but actively engaged in attempts to deliver it to another party in exchange for monetary consideration."

Given the severity of the offense and the weight of evidence presented, the court found no grounds to grant bail. It stated: "There are serious charges of carrying commercial quantity of Cocaine from abroad to India for handing over to third persons, as a part of an International Drug Syndicate."

The court further noted that the accused had failed to satisfy the twin conditions under Section 37 of the NDPS Act and that there was no reason to believe he would not reoffend if released. It stated: "The provisions of the NDPS Act impose stringent restrictions on bail, and in the present case, the overwhelming evidence collected against the accused does not justify his release."

Advocates Representing the Parties

For the Petitioner: A.K. Mishra, Advocate; Sudhanshu Dwivedi, Advocate; Arpit Mishra, Advocate; Anik Srivastav.

For the Respondent: Satish Aggarwal, Advocate.

Case Title: Som Dutt Sharma v. Directorate of Revenue Intelligence

Neutral Citation: 2025: DHC: 1456

Case Number: Bail Appln. 4790/2024

Bench: Justice Neena Bansal Krishna

[Read/Download order]