NDULU LUKULUNGU HERITIER vs CUSTOMS

a. The petitioner, who is a Congolese (Democratic Republic) national, arrived at Terminal-3, IGI Airport, New Delhi from Ethiopia on 25.04.2022.

b. On the basis of suspicion, the petitioner was intercepted by the Customs authorities while passing through the Green Channel. His baggage was scanned, and he was also asked to pass through the Door Frame Metal Detector. However, nothing suspicious was detected at that stage.

c. The petitioner was thereafter taken to the Customs Preventive Room at International Arrival Hall of T-3, IGI Airport, for further verification. Notices under Section 102 of the Customs Act, 1962 [“the Customs Act”], and Section 50 of the NDPS Act were served upon him.

d. Pursuant to the aforesaid notices, the petitioner‟s personal and baggage search was conducted before a Gazetted Customs Officer and two independent witnesses. However, no incriminating article was recovered during the said search.

e. As the conduct of the petitioner remained suspicious, further enquiry was conducted, and the petitioner voluntarily stated that he had ingested some pellets/capsules containing narcotics. Consequently, he was served with a notice under Section 103 of the Customs Act. He also agreed to undergo procedure for removal of the said pellets/capsules. The petitioner was accordingly taken to RML Hospital on 25.04.2022 itself.

f. The petitioner was admitted on 25.04.2022. During his stay, i.e. between 25.04.2022. to 07.05.2022, the petitioner excreted the capsules. The capsules were recovered under separate panchnamas, the details of which are enumerated below:

g. At the time of each recovery, the capsules were kept in a plastic container and sealed with Customs pliers seal having „Customs PD IGI‟ marking on one side and „Ashoka Stambh‟ on the other. During the intervening period, the custody of the petitioner, and the recovered substance, remained with the respondent authorities, as evidenced by the handing-over memos dated 25.04.2022 to 07.05.2022. The custody of aforesaid was handed over from one officer to another on 21 occasions during the said period.

h. On 07.05.2022, the petitioner was discharged from RML Hospital and taken to IGI Airport. On 08.05.2022, independent panch witnesses [namely Mohd. Aziz Ansari and Suman] were called and shown the five sealed containers, who found the seal and signatures on the DR slip affixed to the containers intact.

Thereafter, all 71 capsules, which were kept in five different plastic containers, were opened in the presence of independent panch witnesses and the petitioner. Each of the 71 capsules was cut open with a blade, and found to contain white powdery substance. A small quantity was taken from each of the 71 capsules, and tested separately using the field drug testing kit, and found to be positive for cocaine.

j. Thereafter, the contents of the capsules in each of the five sets were mixed together and kept in five different transparent polythene pouches. The packing material of the capsules was preserved separately. The net weight of the substance recovered was approximately 1198 grams.

k. Thereafter, the five pouches were kept in a plastic container stitched in cloth and marked „X‟. The cloth marked „X‟ was sealed with a Customs preventive seal bearing “IGI AIRPORT CUSTOMS NEW DELHI T-3 AIRPORT OPEN D”, after completion of procedural formalities. This was seized vide DR No. 68798 and was deposited in the malkhana.

l. Panchnama-7 dated 08.05.2022 was prepared in respect of the aforesaid proceedings.

m. The petitioner was ultimately arrested on 08.05.2022. An intimation of his arrest was communicated to the Ministry of External Affairs, New Delhi and the Embassy of Democratic Republic of Congo.

n. Subsequently, the petitioner tendered his voluntary statement on 08.05.2022 under Section 67 of the NDPS Act, where he inter alia admitted the possession, recovery and attempt to import narcotic substances.

o. On 31.05.2022, an application under Section 52A of the NDPS Act for sampling and disposal of the case property, was placed before the Magistrate‟s Court. Samples were drawn and the panchnama dated 08.05.2022, relating to recovery from the petitioner, was verified to the effect that the particulars, sealing, weight, and color of the case property was correct.

p. The samples were thereafter sent to CRCL and vide report dated 27.09.2022, tested positive for cocaine.

q. On 23.03.2023, charges were framed against the petitioner under Sections 21(c)/23(c) of the NDPS Act.

a. The present prosecution is founded upon five separate recoveries made between 25.04.2022 and 01.05.2022, in respect of which separate panchnamas were drawn. Mr. Rajavat submits that the said panchnamas neither record the classification or weight of the seized contraband, nor reflect any sampling having been carried out, in violation of paragraph 2.1 of the Standing Order. To this effect, he places reliance on a judgment of the Rajasthan High Court in Kuka Ram v. State of Rajasthan.^{99.2024 SCC OnLine Raj 3705 [hereinafter, “Kuka Ram”].}

b. He further draws my attention to the formal seizure memo dated 08.05.2022 and the five panchnamas recorded at the time of recovery, to submit that the formal seizure was not carried out in the presence of the panch witnesses who had witnessed the respective recoveries, contrary to the requirement under paragraph 2.2 of the Standing Order. It is further submitted that, in an attempt to cure this defect, the petitioner himself was made to identify the recovered contraband at the time of sampling on 08.05.2022, which, according to Mr. Rajavat, is impermissible and violative of the constitutional safeguards available to the petitioner.

c. In the present case, following the field testing on 08.05.2022, which indicated the presence of cocaine, the contents of the capsules recovered in each of the five separate recoveries, were mixed together and thereafter placed in five separate pouches. Samples were ultimately drawn only on 31.05.2022, pursuant to the order passed by the Magistrate‟s Court on the application under Section 52A of the NDPS Act. Mr. Rajavat submits that this procedure is contrary to paragraph 2.4 of the Standing Order, which contemplates the drawing of representative samples separately from each seized package/container. According to him, the mixing of the contents of the five separate recoveries prior to the drawing of representative samples was impermissible and vitiated the sampling procedure. He places reliance on judgments of this Court in Amani Fidel Chris v. Narcotics Control Bureau^{1010.2020 SCC OnLine Del 2080 [hereinafter, “Amani Fidel Chris”].}, Amina v. State NCT of Delhi^{1111.2023 SCC OnLine Del 3491 [hereinafter, “Amina”].}, and Betty Rame v. NCB^{1212.CRL.M.(BAIL) 1324/2022 IN CRL.A. 338/2021, decided on 30.05.2023[hereinafter, “Betty Rame”].}.

d. Despite the recoveries having been effected between 25.04.2022 and 01.05.2022, the seized contraband was deposited in the godown only on 08.05.2022. The seized contraband admittedly remained in the custody of Customs officials during the intervening period. Mr. Rajavat submits that there was, therefore, a delay of approximately seven to thirteen days in depositing the seized contraband in the godown, contrary to paragraph 3.3 of the Standing Order, which requires the seized drugs to be deposited in the godown within 48 hours of seizure.

e. Mr. Rajavat further points out that, although field testing of the seized contraband was conducted on 08.05.2022, formal sampling was carried out only on 31.05.2022 before the Magistrate‟s Court, resulting in a delay of over three weeks. He submits that such delay in complying with the procedure contemplated under Section 52A of the NDPS Act creates a reasonable doubt in the prosecution case, thereby entitling the petitioner to bail.

a. That the DR slip affixed on the container is merely a piece of paper, without any authenticating or unique characteristics, so as to render it impossible to tamper or replace.

b. That the seals affixed upon the containers at the time of recovery at the hospital were not sent for forensic examination, contrary to the requirement of paragraph 2.9 of the Standing Order.

a. In the context of UAPA, the Court in Union of India v. K.A. Najeeb^{1717.(2021) 3 SCC 713, [hereinafter, “K.A. Najeeb”].}opined as follows:

b. K.A. Najeeb was applied, in the context of the NDPS Act, inter alia in Mohd. Muslim. The Court therein also stipulated that Section 37 NDPS Act requires a prima facie consideration, based upon reasonable assessment of the material on record, and not a finding beyond reasonable doubt at the stage of bail.

c. In several other orders also, the Supreme Court has granted bail to accused in cases involving commercial quantities under the NDPS Act, on the ground of period of custody. Some of the said orders are tabulated in the following chart:

d. As against this line of authority, Mr. Tyagi drew my attention to the following observations in Sukhwinder Singh:

e. I may also note that in the context of prolonged custody under the UAPA, a bench of two learned judges of the Supreme Court has referred the question of interplay between the constitutional safeguard of life and liberty at the pre-trial stage, and the statutory restrictions of grant of bail, to a larger Bench^{2020.The Court had considered the question in Gulfisha Fatima v. State (Govt. of NCT of Delhi) [2026 SCC OnLine SC 10], which was doubted by a subsequent pronouncement in Syed Iftikhar Andrabi v. National Investigation Agency [2026 SCC OnLine SC 881].The question was therefore referred to a larger Bench in Tasleem Ahmed v. State (NCT of Delhi) [2026 SCC OnLine SC 1707].}.

a. No classification, weighing, sampling or testing at the point of recovery: Paragraph 2.1 of the Standing Order provides for classification and weighing at the spot of seizure. No such procedure was undertaken at the hospital at the time of recovery of each of the five lots of contraband. Mr. Rajavat relied upon the judgment of the Rajasthan High Court in Kuka Ram, which ascribes vital importance to this procedural safeguard. The High Court, in fact, granted bail to an accused on this account. Mr. Tyagi, however, submitted that the Supreme Court in Khet Singh v. Union of India^{2121.(2002) 4 SCC 380, [hereinafter, “Khet Singh”].} and in State of Punjab v. Makhan Chand^{2222.(2004) 3 SCC 453, [hereinafter, “Makhan Chand”].} permitted such a procedure. In Khet Singh, however, the seizure occurred on a roadside and the Court held that the seizure mahazar could be prepared at a later stage, as there were no facilities for seizure of the contraband at the spot. Emphasis was placed on recording justifiable and reasonable grounds for such delay and it was noted that inordinate delay in preparing the seizure mahazar would itself give an opportunity for tampering. This was followed in Makhan Chand, which was again a case of recovery on the roadside. The Court again noticed that the facilities for weighing at the spot of recovery was not available. In the present case, in contrast, the recovery took place in a hospital setting, where the facilities for field testing and weighing could, in my prima facie view, have been provided.

b. Discrepancies in the chain of custody: The capsules were recovered between 25.04.2022 to 01.05.2022. The petitioner was discharged from the hospital on 07.05.2022, whereas the formal seizure of the recovered contraband and the petitioner‟s arrest were effected only on 08.05.2022. At the time of each recovery, the recovered capsules were kept in a container, affixed with a DR slip and sealed with the Customs plier seal, with the marking „Customs PD IGI‟ on one side and „Ashoka Stambh‟ on the other. During the intervening period, the sealed containers and the custody of the petitioner was transferred from one officer to another on as many as 21 occasions. It also appears that the seal, which is general in nature, was handed over to the next officer to enable him to carry out sealing of any further recoveries, if required. Thus, the recovered capsules and the seals remained in the custody of Customs Officers throughout this period, and were in the custody of the same person at any given point of time. In these circumstances, the chain of custody cannot be said to adequately safeguard against the possibility of tampering or contamination. Further, the sample seals affixed to the containers at the time of recovery at the hospital were not sent for forensic examination, contrary to the procedure contemplated under paragraph 2.9 of the Standing Order and the judgment of the Supreme Court in Noor Aga v. State of Punjab & Anr.^{2323.(2008) 16 SCC 417 [hereinafter, “Noor Aga”].}. In Noor Aga, the Supreme Court observed that where the seal was not deposited in the malkhana, the sanctity of the recovery could not be said to have been adequately safeguarded. In the present case, the absence of forensic examination of the seals assumes greater significance, particularly in view of the multiple transfers of custody. Accordingly, these circumstances give rise to a prima facie doubt regarding the chain of custody.

c. Formal seizure in front of different witnesses: The capsules were recovered between 08:10 PM on 25.04.2022 and 07:30 PM on 01.05.2022. However, even assuming that they were not required to be seized at the time of recovery, the formal seizure did not occur until 08.05.2022. The final seizure was also not in the presence of any of the panch witnesses at the time of recovery, but a completely new set of witnesses.

d. Delay in depositing contraband in malkhana: The recovered contraband was not sent to the malkhana during this time, but was handed over from one Customs officer to the other, as evidenced by handing over memos. Paragraph 3.3 of the Standing Order requires the drugs to be deposited and sealed in the godown within 48 hours of seizure. In the present case, the contraband was, in fact, deposited in the malkhana seven to thirteen days after recovery.

e. Delay in sampling under Section 52A NDPS Act: Another significant delay has occurred in the present case between seizure on 08.05.2022 and sampling before the Magistrate on 31.05.2022. The delay of over three weeks has not been explained at all.

The sureties be verified by the Special Court prior to release, in terms of Chidiebere Kingsley Nawchara.

A lien/charge equal to the amount of the surety bond be created on their property in any form, including immovable property.

The petitioner shall appear before the Special Court on each date of hearing;

The petitioner shall furnish his mobile number to the concerned IO/Station House Officer, and shall ensure that the same remains operational at all times. The mobile number shall not be switched off or changed without prior intimation to the IO during the pendency of the trial;

The petitioner shall furnish his permanent address to the Special Court, as also the address at which he shall reside during the pendency of the case. In the event of any change in his residential address, the petitioner shall intimate the Investigating Officer [“IO”] and file an affidavit to that effect before the Special Court. The address be verified in accordance with Chidiebere Kingsley Nawchara, prior to the petitioner‟s release;

The petitioner shall surrender his passport, if any, before the Special Court;

The petitioner shall not leave the country without the prior permission of the Special Court;

The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case, or tamper with the evidence, in any manner whatsoever;

The petitioner shall not commit any offence during the period of his release on bail.

The petitioner shall file an affidavit indicating his source of income/funds within India, and also give details of all bank accounts, if any, in the country, before the Special Court;

In terms of the judgment of the Supreme Court in Frank Vitus v. Narcotics Control Bureau and Ors.^{2626.(2025) 3 SCC 1.}, the State shall immediately communicate the order granting bail, to the concerned Foreign 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 in order to enable them to take appropriate steps under the Foreigners Act, 1946, the Registration of Foreigners Rules, 1992, and Foreigners Order, 1948, in accordance with law;

The petitioner shall register with the Foreigners Regional Registration Office within one week of release, and inform the Investigating Officer [“IO”], in writing, of having made such registration;

The IO is directed to inform the Embassy of Democratic Republic of Congo of the petitioner‟s involvement in the aforesaid case.