Ms. Mr. Prem Kishore Tripathi, Advs v. Shweta Mehta and CUSTOMS THROUGH AIR CUSTOMS OFFICER

Judgment

1. The present application seeks regular bail under Section 439 of the Code of Criminal Procedure, 19731 (now Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 20232) in connection with Complaint case No. VII(AP)10/P&I/3192A/Arrival/2021 dated

04.06.2021, registered by the Air Customs, IGI Airport, New Delhi, for offences punishable under Sections 21/23/29 of the Narcotic Drugs and Psychotropic Substances Act, 19853. The case is pending as SC No. 804/2021 before the learned Special Judge (NDPS), New Delhi. 1 Hereinafter “CrPC” 2 Hereinafter “BNSS” 3 Hereinafter “NDPS Act” Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 1 of 25 Factual Matrix

2. On 04.06.2021, acting on specific information, officers of the Air Customs Unit at Indira Gandhi International Airport, Terminal-3, New Delhi, kept surveillance on passengers arriving from Dubai on Emirates Flight EK-516. Among the passengers so intercepted were two Afghan nationals, namely the present petitioner, Aienaddin Gurgij, and his cousin, Bashir Ahmad Gurgich, both residents of Nimroz, Afghanistan. 3. It is the prosecution case that after the said flight landed at IGI Airport, the petitioner and the co-accused collected their checked-in trolley bags from the conveyor belt and proceeded towards the “Green Channel” meant for passengers with “nothing to declare”. On the basis of the prior input, their baggage was segregated and subjected to X- ray screening. Suspicious images were allegedly noticed in two trolley bags bearing baggage tag nos. 887495 and 887496, attributed respectively to the petitioner and the co-accused. 4. Petitioner and the co-accused were then intercepted and brought to the customs examination area, where two independent panch witnesses were called. After disclosure of identity by the Air Customs officer and explanation of the purpose of the proceedings, the personal search of the petitioner and the co-accused was conducted, and their checked-in trolley bags were opened for examination in the presence of the panch witnesses. Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 2 of 25

5. On opening the trolley bag allegedly found in possession of the petitioner, the customs officers found multiple consumer-brand shampoo and hair colour bottles whose seals appeared tampered with. On further inspection, the officers allegedly found that the bottles contained a black-coloured thick liquid having a peculiar smell, which aroused suspicion. The contents of these bottles were poured out, mixed and weighed. As per the record, the total weight of the thick liquid substance recovered from one set of bottles was approximately

10.96 kilograms. 6. Similarly, on examination of the trolley bag attributed to co- accused Bashir Ahmad Gurgich, another set of shampoo/hair colour bottles was allegedly recovered. These bottles too were found to contain thick black liquid, which, on being poured, mixed and weighed, yielded a further quantity of substance. The cumulative gross weight of the liquid suspected substance recovered from the baggage of both the petitioner and the co-accused is stated to be about 19.48 kilograms. 7. Samples in duplicate were allegedly drawn from the recovered liquid in the presence of the panch witnesses, the petitioner and the co-accused. The samples and the remaining bulk substance were sealed with the customs seal, and necessary seizure and detention memos were prepared. The seized articles were taken into custody under the NDPS Act. Detention receipts issued in the names of the petitioner and the co-accused record the detention of a black-coloured thick liquid substance, identified as heroin, weighing approximately Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 3 of 25

10.60 kilograms in the case of the petitioner, and “concealment material” contained in corrugated cartons in the case of the co- accused, both described as having been sealed with the customs seal. 8. The samples so drawn were forwarded to Central Revenues Control Laboratory4, New Delhi, for chemical analysis. As per the CRCL reports placed on record, the samples tested positive for diacetylmorphine (heroin), a narcotic drug notified under the NDPS Act. The prosecution, therefore, treats the quantity of substance recovered, i.e. about 19.48 kilograms of heroin in liquid form, as a “commercial quantity” within the meaning of the NDPS Act. 9. During enquiry under Section 53 of the NDPS Act, summons under Section 67 of the NDPS Act were issued to the petitioner, the co-accused and various witnesses including housekeeping staff and other airport personnel who had witnessed the search and seizure. Statements of such witnesses were recorded under Section 67, including that of Mr. Kaptan (housekeeping staff), who confirmed his presence throughout the search and recovery proceedings on

04.06.2021 and identified the petitioner and the co-accused as the passengers from whose baggage the bottles containing the black liquid substance were recovered. 10. Petitioner and the co-accused also tendered their voluntary statements under Section 67 of the NDPS Act to the customs officers. In these statements, they are alleged to have admitted that they were travelling together from Afghanistan to India, that the shampoo/hair 4 Hereinafter “CRCL” Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 4 of 25 colour bottles in question had been handed over to them abroad by persons known to them, and that they were to deliver the said bottles to a contact person in India in return for monetary consideration, despite being aware that transporting narcotic drugs to India was illegal. 11. On completion of the enquiry, a complaint under the NDPS Act was filed before the learned Special Judge (NDPS), New Delhi, against the petitioner and the co-accused for offences under Sections 21(c), 23(c) and 29 of the NDPS Act, alleging that both had jointly and knowingly attempted to illicitly import and possess commercial quantity heroin concealed in their checked-in baggage while arriving at IGI Airport, Terminal-3, New Delhi, from Dubai on 04.06.2021. Cognizance was taken and the complaint was registered as SC No. 804/2021. 13. The petitioner was arrested on 04.06.2021 and has remained in continuous judicial custody since that date. This is his first application for regular bail before this Court. 14. It is not in dispute that there were originally two accused in the case. During pendency of the proceedings, co-accused Bashir Ahmad Gurgich, who was lodged in Central Jail, Tihar, expired on

01.08.2021. Proceedings against him have abated, and the trial now continues only against the present petitioner. 15. After the complaint was filed, the learned Special Judge took cognizance and, vide order dated 29.04.2022, framed charges against the petitioner under Sections 21(c), 23(c) and 29 of the NDPS Act in Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 5 of 25 respect of the alleged recovery of commercial quantity heroin. The trial commenced thereafter on 18.08.2022. Submissions on behalf of the petitioner

16. Ms. Shweta Mehta, learned counsel for the petitioner submits at the outset that the petitioner is in judicial custody since 04.06.2021 and has, thus, undergone incarceration for more than four years without conclusion of trial. It is pointed out that the chargesheet in Complaint case No. VII(AP)10/P&I/3192A/ARRIVAL/2021 was filed before the learned Special Court, cognizance was taken, and charges under Sections 21, 23 and 29 of the NDPS Act were framed on

29.04.2022. Despite this, out of sixteen prosecution witnesses cited, only six witnesses have been examined so far, and the examination of the remaining ten witnesses is still pending. In these circumstances, it is urged that the trial is clearly not at the verge of conclusion and is likely to take considerable further time. 17. It is further submitted that there were originally two accused persons in the case, namely the present petitioner, Aienaddin Gurgij, and his cousin, Bashir Ahmad Gurgij. During the pendency of trial, co-accused Bashir Ahmad expired while in judicial custody, prior to the framing of charges, as a result of which the proceedings against him have abated and the case is now continuing only against the present petitioner. 18. Learned counsel next draws attention the personal circumstances of the petitioner. It is submitted that the petitioner is a Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 6 of 25 national of Afghanistan and a resident of that country, where his aged parents, wife and four young children reside. Owing to his continued incarceration for over four years, the petitioner has not been able to see or support his family during this entire period. It is submitted that the petitioner is the sole bread earner of the family, and his prolonged detention has caused severe financial and emotional hardship to his dependants. 19. On the merits of the case, it is contended that the petitioner has been falsely implicated and that he had no knowledge of, or conscious possession over, the alleged contraband. Learned counsel submits that, as per the prosecution itself, the contraband is stated to have been recovered from checked-in baggage and not from the person of the petitioner. The petitioner was travelling by air from Afghanistan to Delhi and, according to him, was travelling alone. During the journey he incidentally came to know that his cousin Bashir Ahmad was also on the same flight. It is urged that the baggage in question had been booked and checked prior to boarding and was not in the physical possession of the petitioner during the flight. The bags came into his possession only later, in the customs area of the airport. It is, therefore, submitted that the arrest and implication of the petitioner merely on the basis of recovery from such baggage, which was not admittedly in his possession while on board, is entirely unjustified. 20. Learned counsel emphasises that even on the prosecution version, nothing incriminating was recovered from the personal search of the petitioner. The entire case rests on the alleged seizure of Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 7 of 25 narcotic drugs from baggage which the prosecution attributes to the petitioner. It is specifically urged that it is still a matter of serious contestation as to whose bag the contraband was actually recovered from, particularly in view of the fact that there were two related passengers travelling, and one of them, the cousin Bashir Ahmad, has since died. Learned counsel submits that this uncertainty regarding ownership of the bag and the absence of any independent material showing that the baggage belonged to the petitioner militates against a finding of conscious possession at this stage. 21. Learned counsel then invites attention to the nature and condition of the alleged contraband. It is submitted that, according to the prosecution, approximately 10.96 kilograms of heroin was allegedly recovered, concealed in bottles of shampoo and hair colour. At the time of seizure and sampling, the substance is stated to have been in the form of a thick black liquid. However, when the case property and sample parcels were produced during trial, the substance inside was noticed to be in solid form with a dark grey/ash colour. Counsel submits that this change in the physical state and appearance of the alleged contraband has been recorded in the testimony of the relevant prosecution witness and noted by the learned Trial Court itself. This, according to the petitioner, raises grave doubt about the manner of preservation, safe custody and integrity of the seized material, and suggests possible tampering or deterioration, thereby weakening the prosecution case. Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 8 of 25

22. It is further submitted that the earlier bail application filed by the petitioner before the learned Sessions Court was dismissed solely with reference to Section 37 of the NDPS Act, on the ground that the seizure was of 10.96 kilograms of heroin, which is a commercial quantity. Learned counsel contends that the learned Sessions Court mechanically applied Section 37 without appreciating the peculiar facts of the case, including the unresolved issue regarding ownership of the baggage, the absence of recovery from the petitioner’s person, and the change in the nature of the seized substance. It is urged that the mere fact that the alleged quantity is commercial cannot, by itself, justify indefinite incarceration, particularly when the trial has been unduly protracted. 23. Building on this, learned counsel submits that the rigours of Section 37 of the NDPS Act cannot be treated as an absolute bar to the grant of bail and must be reconciled with the constitutional mandate of personal liberty under Article 21 of the Constitution of India. It is contended that, in a case where the petitioner has already undergone substantial incarceration as an undertrial, where the trial is moving at a slow pace, and where serious issues have been raised regarding conscious possession and the integrity of the contraband, this Court can and ought to exercise its discretion to enlarge the petitioner on bail, subject to appropriate conditions. 24. Learned counsel also draws support from two decisions of this Court, namely Vinay Sharma v. State Govt. of NCT of Delhi5 and 5 BAIL APPLN. 1626/2025 Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 9 of 25 Mohd. Idrish Ali v. State NCT of Delhi6. It is submitted that in both these cases, this Court was pleased to grant bail to the accused persons facing prosecution under the NDPS Act, notwithstanding allegation of commercial quantity, having regard, inter alia, to the length of custody already undergone and the pace of trial. Relying on these precedents, counsel argues that the present case stands on an even stronger footing, inasmuch as the petitioner has been in custody since June 2021, the trial is far from conclusion, and there exist substantial arguable issues on merits. 25. It is next contended that the petitioner has clean antecedents and has never been involved in any other criminal case. It is stated that apart from the present case, there is no other case registered against him. It is further submitted that the investigation in the present case is complete, the chargesheet has been filed, and no further custodial interrogation of the petitioner is required. No recovery remains to be effected at his instance, and there is no likelihood of his tampering with the evidence or influencing any witness during the course of trial. 26. It is submitted that, in the totality of circumstances, particularly the prolonged incarceration of more than four years, the slow progress of trial, the doubts raised regarding possession and integrity of the case property, the clean antecedents of the petitioner, and the principles governing bail as reaffirmed by the Hon’ble Supreme Court and this Court, the petitioner deserves to be enlarged on regular bail pending trial. 6 BAIL APPLN. 776/2025 Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 10 of 25 Submissions on behalf of the respondent

27. Mr. Gibran Naushad, learned Senior Standing Counsel for the respondent opposes the bail application and submits that the present case does not satisfy the stringent requirements of Section 37 of the NDPS Act and, therefore, no ground for grant of regular bail is made out. It is emphasised at the outset that the petitioner was intercepted at IGI Airport, New Delhi, on 04.06.2021, and from his brown-coloured checked-in trolley bag 30 shampoo/hair colouring bottles containing black, thick liquid weighing 10.96 kg were recovered, which, upon testing, have been found to contain heroin. In addition, 22 similar bottles containing 8.520 kg of the same black liquid were recovered from the checked-in baggage of the petitioner’s cousin and co- accused, Bashir Ahmad Gurgich. 28. Learned counsel submits that representative samples of 5 millilitres each were drawn from all 30 bottles recovered from the petitioner and sent to the CRCL for analysis. The CRCL report dated

26.08.2021 records that each of the thirty samples tested positive for diacetylmorphine (heroin), a narcotic drug under the NDPS Act. Thus, there is, at this stage, scientific confirmation that what was recovered from the petitioner’s bag is heroin. 29. It is contended that the quantity of heroin recovered from the petitioner alone is 10.96 kg, which far exceeds the notified commercial quantity of 250 grams for heroin. Consequently, the rigours of Section 37 of the NDPS Act squarely apply. Section 37 Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 11 of 25 places a very high threshold for the grant of bail in cases involving commercial quantity, and mandates that the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail. It is submitted that the petitioner has not made out any material that could satisfy either of the twin conditions. 30. Learned counsel further submits that, during enquiry, the petitioner tendered a voluntary statement under Section 67 of the NDPS Act wherein he admitted possession, recovery and attempt to import heroin into India. In this statement, the petitioner has also disclosed that he and the co-accused were working for one individual, namely, Isha Khan, and that they were smuggling drugs on his behalf. It is urged that these statements clearly establish the petitioner’s conscious possession and complicity in the offence, and cannot be brushed aside at the stage of bail. 31. As regards the petitioner’s contention that no contraband was recovered from him or that he had no knowledge of any narcotics in his baggage, learned counsel submits that such a plea is contrary to the record. It is pointed out that the petitioner himself has admitted that the checked-in trolley bag, from which the contraband was recovered, belonged to him. In the face of this admission, the attempt to now deny recovery from his baggage is described as a bald and self-serving plea, meant only to mislead the Court. The respondent also relies on the settled legal position that where recovery is effected from the baggage belonging to the accused, the burden lies on the accused to Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 12 of 25 establish that he was in “unconscious possession” and had no knowledge of the contraband; such a defence cannot be presumed at the bail stage. 32. Dealing with the argument regarding the physical condition of the case property, learned counsel submits that the petitioner’s reliance on the substance being in liquid form at the time of seizure and in solid form when produced before the Court is misconceived. It is explained that the change from liquid to solid form is due to evaporation over a period of time and, in any event, does not constitute any illegality attributable to the prosecution. At best, such issues pertaining to the nature and condition of the case property are triable and can only be adjudicated upon during trial. They cannot justify grant of bail in a case involving commercial quantity heroin. 33. Learned counsel also disputes the petitioner’s contention regarding delay in trial. It is submitted that the complaint has already been filed; charges under Sections 21(c), 23(c) and 29 NDPS Act were framed on 29.04.2022; and the case is actively being tried by the learned Special Judge, NDPS, Dwarka Courts. Out of a total of 16 witnesses, 6 witnesses, including the Investigating Officer, have already been examined and 5 witnesses have been dropped. Only 5 witnesses now remain to be examined. In these circumstances, it is submitted that the trial is proceeding with due expedition and it cannot be said that there is such delay as would warrant bail. 34. In this context, reliance is placed on the judgment of the Hon’ble Supreme Court in Supreme Court Legal Aid Committee Signature Not Verified Signed By:SHILPI Signing Date:22.11.2025 17:32:43 BAIL APPLN. 437/2025 Page 13 of 25 (Representing Undertrial Prisoners) v. Union of India,7 wherein it was directed that an undertrial charged with offences under the NDPS Act carrying a minimum sentence of 10 years and minimum fine of ₹1 lakh would be entitled to bail on the ground of prolonged custody only if he has been in jail for not less than five years. It is submitted that the petitioner has not completed five years of incarceration and, therefore, cannot invoke the said decision to seek bail on the ground of delay. The respondent further points out that this principle has been followed by this Court in recent decisions in Pauline Nalwoga v. Customs8 and Umar Sebandeke v. Customs 9while dealing with bail pleas based on prolonged custody in NDPS matters. 35. Learned counsel for the respondent also places reliance on the decisions of the Hon’ble Supreme Court in Union of India v. Ram Samujh10, and Union of India v. Ajay Kumar Singh11, to contend that Section 37 of the NDPS Act embodies a clear legislative mandate that persons accused of offences involving commercial quantity narcotics are not to be released on bail unless the stringent twin conditions are satisfied. In particular, the Court must be satisfied, on reasonable grounds, that the accused is not guilty of the offence and is not likely to commit any offence while on bail. It is submitted that no such satisfaction can be recorded in the present case in view of the recovery