Delhi High Court on Bail under NDPS Act: Long Custody Not Sufficient Ground for Release.

Headnote:

The Delhi High Court dismissed the bail plea of Ugandan national Jascent Nakalungi, accused of trafficking commercial quantities of heroin and cocaine, holding that long pre-trial detention and partial examination of witnesses do not justify bail under Section 37 of the NDPS Act. The Court emphasized that in offences involving commercial quantities of narcotics, the “twin conditions” of Section 37—reasonable belief of innocence and assurance against re-offending—must both be satisfied before bail can be granted. The applicant’s foreign nationality and prior similar conduct further weighed against release.

Background:

1. The applicant, a Ugandan citizen, was arrested at IGI Airport on 28 January 2021 along with co-accused Sharifah Namaganda after a tip-off led the Narcotics Control Bureau (NCB) to seize 4 kg heroin and 560 g cocaine from her baggage.
2. Controlled delivery operations led to the arrest of Kingsley, who came to receive the consignment.
3. The applicant admitted in her Section 67 NDPS statement to earlier drug deliveries in 2019 for $2,000 per trip.
4. She sought bail citing four years of continuous custody, delay in trial, and alleged procedural irregularities like absence of videography and non-communication of arrest grounds.

Court’s Observations:

1. The recovery involved commercial quantity narcotics, attracting the rigour of Section 37 NDPS Act.
2. The applicant’s own confession, coupled with seizure and conspiracy evidence, indicated active participation in drug trafficking.
3. The delay in trial was not deemed “inordinate” since 6 of 14 witnesses were already examined and delays were partly due to the defence.
4. The Court noted that prolonged incarceration alone cannot override the statutory embargo of Section 37; societal interest in curbing drug offences takes precedence.
5. As the applicant is a foreign national, the risk of absconding was considered significant.
6. The argument regarding non-written communication of arrest grounds was rejected as Pankaj Bansal v. Union of India (2023) is prospective, not applicable to a 2021 arrest.

Decision:

1. The Court held that the applicant failed to satisfy the twin conditions under Section 37 NDPS Act.
2. The delay in trial was insufficient to justify bail.
3. Given the gravity of offence, prior admissions, and flight risk, the bail application was dismissed.

Legal Provisions Discussed:

1. Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985 – Conditions for granting bail in commercial quantity cases.
2. Section 67, NDPS Act – Voluntary statements and admissibility.
3. Section 52, NDPS Act – Communication of arrest grounds.
4. Article 21, Constitution of India – Right to life and personal liberty (including speedy trial).
5. Section 439, Code of Criminal Procedure, 1973 – Special powers of High Court or Court of Session regarding bail.

Citation: 2025:DHC:BAIL:1367

Case: Jascent Nakalungi v. Narcotic Control Bureau

Court: High Court of Delhi at New Delhi

Coram: Hon’ble Ms. Justice Neena Bansal Krishna

Date of Decision: 04 November 2025

Bail Application No.: 1367 of 2025