Dismissed¶61

Mohan Gupta v. State of NCT of Delhi

Delhi HC4 Apr 2025BAIL APPLN./2954/2024

Case brief

AI extract

What is this about?

BAIL APPLN. 2954/2024; Mohan Gupta v. State of NCT of Delhi; High Court of Delhi; Sanjeev Narula, J.; order dated 04.04.2025; NDPS Act Sections 21(c)/29, 37, 37(1)(b)(ii), 50; BNSS 2023 Section 483 (formerly CrPC Section 439); Article 21 Constitution of India; commercial quantity heroin 410 grams; habitual offender; prior FIRs 22/2019 and 357/2019 PS Crime Branch; parity with co-accused Pradeep; prolonged incarceration and trial delay; bail dismissed; FIR No. 54/2023; precedents: Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; State of M.P. v. Kajda (2001) 7 SCC 673.

What did the court decide?

The heroin weighing 410 grams recovered from the Applicant is a commercial quantity; consequently, the stringent conditions of Section 37 NDPS Act are attracted and must be strictly applied. ¶48

Mohan Gupta Vs State of NCT of Delhi — Narcotics (NDPS) | Delhi HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶61

Issue for consideration

Whether the Applicant is entitled to regular bail under Section 483 BNSS, 2023 in FIR No. 54/2023 (Sections 21(c)/29 NDPS Act) despite recovery of a commercial quantity of heroin and the rigours of Section 37 NDPS Act +1 more

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Court's answer

The heroin weighing 410 grams recovered from the Applicant is a commercial quantity; consequently, the stringent conditions of Section 37 NDPS Act are attracted and must be strictly applied.

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Ratio / Principle

Section 37(1)(b)(ii) NDPS Act imposes a twin-layered threshold — reasonable grounds to believe the accused is not guilty, and that he is not likely to commit any offence while on bail — and both conditions must be satisfied conjunctively before bail can be granted.

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Key takeaways

Although prolonged incarceration and delayed trial may dilute the restrictions of Section 37 NDPS Act, that benefit cannot be extended mechanically in cases involving habitual offenders.ratio¶56
In light of the Applicant's antecedents (prior NDPS cases FIR Nos. 22/2019 and 357/2019) and the serious nature of the present allegations, the Court is not persuaded that he would refrain from similar conduct if released on bail; accordingly the second condition of Section 37(1)(b)(ii) is not satisfied.ratio¶57
Grounds such as lack of independent witnesses and absence of videographic or photographic evidence of seizure are considered along with other facts and circumstances, such as long incarceration and corresponding delay in trial, and not in isolation.

Detailed headnote1 paragraphs

Delhi High Court (Sanjeev Narula, J.) dismissed a regular bail application under Section 483 BNSS, 2023 in FIR No. 54/2023 (P.S. Crime Branch), wherein the Applicant was charged under Sections 21(c)/29 NDPS Act after 410 grams of heroin were recovered from his handbag. Holding the quantity to be a commercial quantity, the Court applied the twin conjunctive conditions of Section 37(1)(b)(ii) NDPS Act. Although the investigation stood concluded with the chargesheet filed, the Court held that prolonged incarceration and delayed trial cannot mechanically dilute Section 37 in cases involving habitual offenders; the Applicant's prior involvements (FIR Nos. 22/2019 and 357/2019, P.S. Crime Branch) and the serious nature of the allegations led the Court to conclude he was unlikely to refrain from similar conduct if released. Grounds of absent independent witnesses and missing videographic/photographic evidence of seizure were acknowledged but treated as relevant only alongside other circumstances. Bail refused; observations confined to the bail application and not an expression on merits.

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$~3

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- BAIL APPLN. 2954/2024

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MOHAN GUPTA .....Petitioner

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Through: Mr. Aditya Aggarwal and Ms. Shivani Sharma, Advocates

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versus

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STATE OF NCT OF DELHI .....Respondent

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Through: Mr. Mukesh Kumar, APP for State with SI Sudhir Kumar, ANTF/Crime Branch

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CORAM:

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HON'BLE MR. JUSTICE SANJEEV NARULA

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O R D E R % 04.04.2025

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The present application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023¹ (formerly Section 439 of the Code of Criminal Procedure, 1973² ) seeks regular bail in proceedings arising from FIR No. 54/2023 registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985³ at P.S. Crime Branch. Subsequently, a chargesheet was filed and the Applicant has been charged with offences under Sections 21(c)/29 of the NDPS Act.

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Briefly, the case of the prosecution is as follows:

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2.1. On 2^nd March, 2023, ASI Subhash Chand of the ANTF received secret

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1 “BNSS”

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2 “Cr.P.C.”

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BAIL APPLN. 2954/2024 Page 1 of 8

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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/06/2025 at 23:54:54

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information that one Mohan Gupta (the Applicant), previously incarcerated in drug trafficking cases in Delhi, was again involved in trafficking heroin. He was expected to deliver a large quantity of heroin near the Wazirabad flyover between 8:00 AM and 9:00 AM. Upon receiving the information, ASI Subhash Chand informed Inspector Rakesh Duhan telephonically, who in turn informed ACP Arvind Kumar of the Crime Branch. The information was recorded in the CCTNS vide DD No. 007A dated 2^nd March, 2023.

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2.2. Acting on the information, a raiding party was constituted and dispatched to the location. At around 8:30 AM, a person carrying an armycoloured handbag was seen walking towards Signature Bridge under the Wazirabad flyover. The secret informer identified him as the Applicant, who was then apprehended. After disclosing his identity as Mohan Gupta, he was served with a notice under Section 50 of the NDPS Act. He was informed of his right to be searched before a Gazetted Officer or Magistrate, but he declined both, and also refused to search the raiding team or their vehicle. 2.3. Upon his personal search, no contraband was recovered and a ‘Nil recovery’ memo was prepared. However, upon searching the handbag he was carrying, a red-coloured powdery substance wrapped in a white polythene packet was recovered. Field testing confirmed the substance to be heroin, weighing 410 grams. The contraband and the handbag were seized under separate seizure memos.

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2.4. During interrogation, the Applicant disclosed that he had procured the heroin from one Wajid, a resident of Bareilly, U.P., on 28^th February, 2023,

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3 “the NDPS Act”

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BAIL APPLN. 2954/2024 Page 2 of 8

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for onward sale to one Pradeep from Najafgarh, Delhi.

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2.5. On 3^rd March, 2023, the Applicant was remanded to four days’ police custody for the purpose of identifying the source and receiver. Call Detail Records indicated regular contact between the Applicant and Pradeep from 1^st September, 2022 to 25^th February, 2023.

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2.6. On 4^th March, 2023, co-accused Pradeep was arrested near his residence. He admitted to purchasing heroin from the Applicant at the rate of INR 800 per gram and reselling it to individuals named Pramod and Mukesh @ Makoda. On 10^th March, 2023, Pradeep was remanded to two days’ police custody. Subsequently, on 11^th March, 2023, a two-wheeler used for taking delivery of heroin from the Applicant was recovered from Pradeep’s house.

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2.7. Raids were also conducted in Bareilly to trace Wajid, who was found absconding. His real name was revealed to be Akram, previously convicted in FIR No. 26/2012 under Sections 21/29 NDPS Act, registered at P.S. Special Cell, Delhi.

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2.8. FSL report confirmed that the recovered substance (Exhibit A1) tested positive for Diacetylmorphine (heroin), Acetaminophen, 6- monoacetylmorphine, and Trimethoprim on chemical, TLC and GC-MS analysis.

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Counsel for the Applicant states that the Applicant has been falsely implicated and urges the following in support of his request:

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3.1. The Applicant has been in custody since 4^th June, 2022. The investigation has been complete, chargesheet has been filed and the matter is

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BAIL APPLN. 2954/2024 Page 3 of 8

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at the stage of framing of charge. Thus, his continued incarceration serves no purpose.

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3.2. Despite having ample opportunity, the investigating agency made no efforts to secure any independent witnesses to corroborate the recovery. Moreover, the absence of videographic or photographic evidence of the alleged seizure further casts doubt on the authenticity of the prosecution’s claims.

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3.3. While the Applicant has prior involvements under the NDPS Act (FIR No. 22/2019 under Sections 21/25/29 and FIR No. 357/2019 under Sections 21/25, both registered at P.S. Crime Branch), it is submitted that these cannot form the sole basis for rejecting bail. Moreover, the Applicant has been granted bail in FIR No. 357/2019 by this Court on 1^st April, 2025.

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3.4. Section 37 of the NDPS Act shall not be applicable to the present case as the Applicant’s right to life and person liberty supersedes the statutory requirement under Section 37.

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3.5. The co-accused Pradeep was granted bail by the Trial Court by order dated 1^st May, 2023 hence, the Applicant is entitled to be enlarged on bail on the grounds of parity.

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3.6. The Applicant undertakes that he is willing to abide by the conditions of bail.

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On the other hand, Mr. Mukesh Kumar, APP for the State, strongly opposes the bail application. He states that the quantity of recovered contraband falls within the commercial quantity, attracting the rigour of Section 37 of the NDPS Act. He further submits that the Applicant has

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BAIL APPLN. 2954/2024 Page 4 of 8

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previous involvements under the NDPS Act. He was arrested in proceedings arising from FIR No. 22/2019 registered under Sections 21/25/29 of the NDPS Act at P.S. Crime Branch, Delhi. While he was on bail in the said case, he again started supplying heroin and was arrested again in FIR No. 357/2019 registered under Sections 21/25 of the NDPS Act at P.S. Crime Branch. In the said FIR, he was granted interim bail on 25^th August, 2022 and while on interim bail, the present case against him was registered. Given his prior involvement in criminal proceedings, there is a likelihood that he may abscond or default on bail conditions, if released. Additionally, the Applicant’s request for regular bail has previously been denied by the Special Judge (NDPS)-02, Central, Tis Hazari Courts by order dated 7^th August, 2024.

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The Court has considered the facts and the submissions advanced. While evaluating a bail application, the Court must consider several factors, including whether there is a prima facie case or reasonable grounds to believe the accused has committed the offence, the likelihood of the accused repeating the offence, the nature and seriousness of the accusation, the severity of the potential punishment upon conviction, the risk of the accused absconding or fleeing if granted bail and the reasonable apprehension of witnesses being intimidated by the accused.⁴

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The contraband recovered from the Applicant comprises of heroin weighing 410 grams which falls within the definition of ‘commercial quantity’. As a result, the rigours of Section 37 of the NDPS Act are

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BAIL APPLN. 2954/2024 Page 5 of 8

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attracted, which impose stringent conditions for the grant of bail. This provision mandates a twin-layered threshold to be satisfied before bail can be granted: first, the Court must be satisfied, upon hearing the Public Prosecutor, that there are reasonable grounds for believing that the accused is not guilty of the offence; and second, that he is not likely to commit any offence while on bail. These conditions have to be met conjunctively in order to grant bail to the accused under the NDPS Act. The Supreme Court has consistently held that denial of bail is the rule and its grant is an exception under Section 37(1)(b)(ii) of the NDPS Act.⁵ Hence, in light of the recovery of contraband is of a commercial quantity, the rigours of Section 37 must be strictly applied.

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As regards the second condition of Section 37(1)(b)(ii), the prosecution has relied on the fact that the Applicant is presently in judicial custody in connection with two other criminal cases – FIR No. 22/2019 under Sections 21/25/29 of the NDPS Act and FIR No. 357/2019 under Sections 21/25 of the NDPS Act, both registered at P.S. Crime Branch.

¶50

This Court granted bail to the Applicant in FIR No. 357/2019 vide order dated 1^st April, 2024. However, perusal of the said order, reveals that the Applicant was in custody in relation to the said case for nearly 4 years and 4 months. Thus, considering the long period of incarceration and the delay in trial, this Court granted bail having regard to fundamental right of the Applicant as enshrined under Article 21 of the Constitution of India.

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4 Prasanta Kumar Sarkar v. Ashis Chatterjee , (2010) 14 SCC 496

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5 State of M.P. v. Kajda , (2001) 7 SCC 673

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BAIL APPLN. 2954/2024 Page 6 of 8

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Further, it must be acknowledged that this Court as well as the Coordinate Benches have granted bail on the ground of lack of independent witnesses and videographic or photographic evidence of the seizure. However such grounds are considered along with other facts and circumstances, such as long period of incarceration and the corresponding delay in trial.

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This Court is mindful that the Applicant has been in judicial custody since 2^nd March, 2023, and that the investigation in the present matter stands concluded, with the chargesheet having been filed. Although prolonged incarceration and delayed trial proceedings may dilute the statutory restrictions under Section 37 of the NDPS Act, such a benefit cannot be extended mechanically in cases involving habitual offenders. The menace of drug trafficking poses a grave threat to public health and social stability. It erodes the moral and physical fabric of society and undermines lawful economic structures. The repeated involvement of the Applicant in such cases reflects a continued association with drug trafficking activities, suggesting that he is not merely a one-time offender but someone who is habitually engaged in such illicit trade. The Court is, therefore, duty-bound to strike a delicate balance between safeguarding the Applicant’s fundamental right to personal liberty and ensuring the broader societal interest of effectively curbing drug-related offences.

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Thus, in light of the Applicant’s antecedents and the serious nature of the present allegations, this Court is not persuaded to believe that he would refrain from similar conduct if released on bail.

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BAIL APPLN. 2954/2024 Page 7 of 8

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It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.

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Accordingly, the bail application, along with pending application(s), if any, is dismissed.

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SANJEEV NARULA, J

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APRIL 4, 2025/ SV

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8 of 8

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Procedural history

How this case reached the court

AI extract

Order under challenge
Rejection of the Applicant's regular bail application by the Trial Court, challenged through the present application under Section 483 BNSS¶43
Special Judge (NDPS)-02, Central, Tis Hazari Courts · 7th August, 2024
Prior proceeding
FIR No. 54/2023 registered under Section 21 NDPS Act at P.S. Crime Branch; after chargesheet, Applicant charged under Sections 21(c)/29 NDPS Act¶12
Prior proceeding
On 2nd March 2023, acting on secret information, ANTF apprehended the Applicant near Wazirabad flyover; notice under Section 50 NDPS Act served; nil recovery from person but 410 grams heroin recovered from his handbag and seized under separate memos¶20
Prior proceeding
On 3rd March 2023, Applicant remanded to four days' police custody to identify source and receiver; CDRs showed regular contact with Pradeep from 1st September 2022 to 25th February 2023¶26
Prior proceeding
Co-accused Pradeep arrested on 4th March 2023; admitted purchasing heroin at INR 800 per gram for resale to Pramod and Mukesh @ Makoda; two-wheeler used for taking delivery recovered from his house on 11th March 2023¶27
Prior proceeding
Raids in Bareilly to trace supplier Wajid, found absconding; revealed to be Akram, previously convicted in FIR No. 26/2012 under Sections 21/29 NDPS Act, P.S. Special Cell, Delhi¶28
Prior proceeding
FSL analysis of recovered substance (Exhibit A1)¶29
Prior proceeding
Per the State, Applicant was granted interim bail in FIR No. 357/2019 on 25th August 2022, and the present case was registered while he was on interim bail¶43
Prior proceeding
This Court granted bail to the Applicant in FIR No. 357/2019 vide order dated 1st April 2024, after nearly 4 years and 4 months custody in that case, on Article 21 grounds (as recorded by the Court)¶50
Prior proceeding
Counsel's version: Applicant granted bail in FIR No. 357/2019 by this Court on 1st April 2025 (date conflicts with the Court's recording of 1st April 2024)¶36
Prior proceeding
Counsel submitted the Applicant has been in custody since 4th June 2022, investigation complete, chargesheet filed, matter at stage of framing of charge¶31
Prior proceeding
As recorded by the Court, Applicant in judicial custody since 2nd March 2023; investigation concluded and chargesheet filed¶56
Prior proceeding
Counsel's parity plea: co-accused Pradeep granted bail by the Trial Court by order dated 1st May 2023¶38

Mohan Gupta v. State of NCT of Delhi

Case brief

What is this about?

What did the court decide?

Mohan Gupta v. State of NCT of Delhi

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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