Delhi HC Grants NDPS Bail Over Unexplained Chronology Between Arrest Memo and Heroin Recovery

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 05.10.2026

Delhi HC Grants NDPS Bail Over Unexplained Chronology Between Arrest Memo and Heroin Recovery

The Delhi High Court has granted regular bail to an accused in an NDPS case involving the alleged recovery of 268 grams of heroin, after noticing a significant chronological discrepancy in the prosecution’s own documents: the written grounds of arrest, prepared before the alleged house search and recovery, already mentioned the precise quantity of 268 grams of heroin that the police claimed to have recovered subsequently.

Justice Sachin Datta held that, although the genuineness of the alleged recovery would ultimately be tested during trial, this unexplained chronology could not simply be brushed aside as an inconsequential irregularity at the bail stage. Taking this circumstance together with the accused’s absence of criminal antecedents, conduct during earlier periods of interim bail, prolonged custody and lack of substantial progress in the trial, the Court found the twin requirements under Section 37(1)(b)(ii) of the NDPS Act satisfied.

Background of the Case

• The bail application was filed by Wali Md @ Shamshad under Section 483 of the BNSS seeking regular bail in FIR No. 1044/2024 registered at Police Station Narela Industrial Area. The FIR involved offences under Sections 21, 25 and 29 of the NDPS Act. The applicant had remained in judicial custody since 19 November 2024, except for periods when he was released on interim bail.
• According to the prosecution, 268 grams of heroin was recovered from a wooden almirah at the applicant’s residence. Since the commercial quantity threshold for heroin is 250 grams, the alleged recovery attracted the stringent bail conditions prescribed under Section 37 of the NDPS Act.

The Crucial Chronological Discrepancy

• The central issue before the High Court arose from the sequence of events recorded in the prosecution’s own case.
• According to the status report, the police party accompanied by co-accused Mohd. Shakir reached Jhanda Chowk, JJ Colony, Bawana at approximately 9:10 AM on 19 November 2024. The applicant was identified and thereafter arrested at approximately 9:30 AM. The prosecution claimed that the police subsequently proceeded to the applicant’s residence, conducted a search and recovered a packet containing 268 grams of heroin from a wooden almirah.
• However, the written grounds of arrest presented a serious anomaly. The document, according to the charge-sheet itself, had been prepared and signed by the applicant before his arrest at approximately 9:30 AM and therefore before the house search was undertaken. Yet it already referred to the recovery of precisely 268 grams of heroin from the applicant.
• The Court considered the fundamental question to be how a document prepared and served before the alleged recovery could record the precise quantity that, according to the prosecution, was discovered only afterwards.

Special Judge Had Earlier Rejected Bail

• The same discrepancy had been raised before the Special Judge (NDPS), North District, Rohini Courts, while considering the applicant’s second bail application.
• The Special Judge rejected bail on 22 August 2025, taking the view that even if there was a discrepancy in the grounds of arrest, it was inconsequential in light of the video recording of the recovery. The Special Judge considered any irregularity relating to the recovery and the grounds of arrest to be a matter appropriately tested through cross-examination during trial.
• The Delhi High Court, however, found that the circumstance could not be dismissed merely as an inconsequential irregularity at the bail stage.

State Invokes Stringent Section 37 NDPS Bar

• The State strongly opposed the application, arguing that the applicant had been apprehended at the instance of co-accused Mohd. Shakir and that the heroin was thereafter recovered from the applicant’s residence.
• It contended that the discrepancy regarding the grounds of arrest was a matter for trial and could not dilute the statutory rigour of Section 37 of the NDPS Act.

The prosecution relied upon three Supreme Court decisions:

• Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18 SCC 374
• Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, (2021) 10 SCC 100
• Narcotics Control Bureau v. Kashif, 2024 INSC 1045

Section 37 Does Not Require a Finding of Acquittal at Bail Stage

• An important aspect of the judgment is the High Court’s explanation of the standard to be applied under Section 37 of the NDPS Act.
• Referring to the Supreme Court’s judgment in NCB v. Mohit Aggarwal—a precedent relied upon by the State itself—the Court observed that a court deciding an NDPS bail application is not required to record a definitive finding that the accused is not guilty.
• The inquiry is limited to determining whether there are reasonable grounds for believing that the accused is not guilty of the alleged offence and whether he is unlikely to commit an offence while on bail. The evidence is not required to be weighed at this stage as though the Court were conducting the trial.

First Limb of Section 37 Satisfied

• Applying that principle, the High Court held that the unexplained chronology between the grounds of arrest and the subsequent alleged recovery constituted, prima facie, a circumstance satisfying the first limb of Section 37(1)(b)(ii).
• Importantly, the Court expressly limited this finding to the bail proceedings and clarified that it would have no bearing upon appreciation of the evidence during trial.
• Thus, the judgment does not hold that the alleged recovery was fabricated or that the accused was innocent. It identifies a sufficiently serious prima facie circumstance affecting the prosecution narrative for purposes of the statutory bail test.

No Previous Criminal Involvement and Proper Conduct on Interim Bail

• For the second limb of Section 37, the Court noted that the material before it did not disclose any previous criminal involvement of the applicant.
• The applicant had also been released on interim bail on two occasions—from 20 May to 26 May 2025 and from 9 June to 13 July 2025—and surrendered on both occasions. No misconduct during these periods was reported.
• The Court considered these circumstances material in mitigating the apprehension that the applicant would commit another offence or violate bail conditions.

Prolonged Custody and Lack of Trial Progress

• The High Court additionally considered the period of incarceration and the progress of the criminal proceedings.
• Although charges under Sections 21, 25 and 29 of the NDPS Act had been framed, the matter was still at the stage of prosecution evidence. Significantly, nothing on record indicated that any of the 18 prosecution witnesses cited in the charge-sheet had actually been examined. The Court therefore observed that there had been no real progression beyond the framing of charges.
• The Court referred to the Supreme Court decisions in Dheeraj Kumar Shukla v. State of Uttar Pradesh, 2023 SCC OnLine SC 918 and Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109, where weight had been given to protracted trials and resultant prolonged incarceration even in cases governed by the NDPS Act.

Delhi High Court Finds Twin Conditions Under Section 37 Fulfilled

• Considering the circumstances cumulatively, the High Court concluded that the twin conditions prescribed by Section 37(1)(b)(ii) stood fulfilled and that the applicant deserved to be enlarged on regular bail.
• The applicant was directed to furnish a personal bond of ₹50,000 with one local surety of the same amount.
• The Court imposed several safeguards, including restrictions on leaving Delhi or travelling abroad without Trial Court permission, maintaining an operational mobile phone with location services enabled, refraining from contacting prosecution witnesses or tampering with evidence, appearing before the Trial Court on every hearing date, and periodically reporting to the police authorities. Breach of the conditions would entitle the State to seek cancellation of bail.

Supreme Court Judgments Referred

The judgment expressly discusses or refers to the following Supreme Court authorities:

Case	Citation	Relevance
Narcotics Control Bureau v. Mohit Aggarwal	(2022) 18 SCC 374	Meaning and application of “reasonable grounds” under Section 37 NDPS Act
Union of India through NCB, Lucknow v. Md. Nawaz Khan	(2021) 10 SCC 100	Relied upon by the State regarding stringent NDPS bail requirements
Narcotics Control Bureau v. Kashif	2024 INSC 1045	Relied upon by the State opposing bail
Dheeraj Kumar Shukla v. State of Uttar Pradesh	2023 SCC OnLine SC 918	Protracted trial and prolonged incarceration in NDPS bail
Rabi Prakash v. State of Odisha	2023 SCC OnLine SC 1109	Prolonged incarceration and delay in NDPS proceedings

The first three authorities were cited by the prosecution, while the latter two were considered by the High Court in assessing prolonged incarceration and delay.

Why the Judgment Is Significant

The ruling is significant because it demonstrates that the stringent restrictions under Section 37 of the NDPS Act do not prevent a constitutional court from examining serious prima facie inconsistencies emerging from the prosecution’s own record.

Where an official document purportedly prepared before a search already records the exact quantity claimed to have been discovered during the subsequent search, the chronology may assume material importance while determining whether “reasonable grounds” exist for the limited purpose of considering bail.

At the same time, the Delhi High Court carefully avoided prejudging the prosecution case. It expressly clarified that its observations were solely for deciding bail and must neither influence the trial nor be treated as an expression on the merits. The Trial Court was also requested to expedite the proceedings.

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Source: Delhi High Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi