Delhi HC Grants Bail in NDPS Case, Holds Customs’ Detention Without Magistrate’s Approval as Illegal Custody [Read Order]

TheDelhi High Court granted bail in a Narcotic Drugs and Psychotropic Substances (NDPS) case, holding that the detention of the applicant by customs officials without producing him before a magistrate within 24 hours amounted to illegal custody.

In this case, Habiob Bedru Omer, an Ethiopian national, reached Delhi Indira Gandhi International Airport on 21-11-2023, and the case involves the recovery of 960 grams of cocaine hydrochloride from him. Customs officers, acting on suspicion, searched the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the Customs Act. Though no contraband was found in his baggage, Omer admitted to ingesting capsules containing narcotics. He was taken to Safdarjung Hospital, where 75 capsules were recovered over several days. The substances tested positive for methaqualone initially and later for cocaine hydrochloride.

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The petitioner’s counsel argued that his detention from May 21 to May 25, 2023, was unlawful, as he was neither produced before a magistrate nor informed of his rights. The customs authorities claimed that the petitioner consented to medical procedures.

The court noted that “handing over” memos between officers indicated continuous custody.

Justice Sharma observed discrepancies in the customs case, pointing out that while they initially claimed Omer was intercepted based on profiling, internal documents referenced ‘specific intelligence’.

The bench, by going through various precedents, noted that “there can be no doubt that the applicant was under the 'custody' of the respondent, since the time of his interception on 21.05.2025. As pointed out hereinabove, ‘The Handing Over’ – ‘Taking Over’ memos prepared by the Customs clearly show the transfer of the applicant’s custody from one officer to the other of the respondent. It is further recorded therein that appropriate procedure was to be followed as per the Customs Act, 1962 or NDPS Act, 1985, meaning thereby that the concerned officers were conscious of the fact that the applicant was being detained for suspicion of commission of an offence punishable under the NDPS Act.”

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Although commercial quantities of drugs were recovered, the court ruled that the illegality of Omer’s custody outweighed the rigours of Section 37 of the NDPS Act, which imposes strict bail conditions in such cases. The petitioner, incarcerated for over two years, was granted bail on a personal bond of Rs. 25,000 with conditions, including surrendering his passport and not tampering with evidence. The court also clarified that its observations were limited to the bail application and would not influence the trial’s outcome.

Justice Amit Sharma allowed the bail application, noting that the accused’s fundamental rights under Articles 21 and 22 of the Constitution had been violated, rendering his arrest vitiated.

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