Interim Order 25

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF JITENDRA PRATAP SINGH
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
NEW DELHI DISTRICT, PATIALA HOUSE COURTS NEW
DELHI
IA 4/25 SC No. 102/23
Crime No. VIII/67/DZU/2022
NCB Vs. Saraswati Thakur
06.06.2026.
ORDER
1. By this order, I shall dispose of the third bail application
moved on behalf of applicant/accused Saraswati Thakur under
Section 483 BNSS, 2023 seeking regular bail in the present case.
The first application was dismissed as withdrawn on 18.05.2024
and the second was dismissed on 23.04.2025.
2. It is submitted by Ld. Counsel for the applicant/accused that
there is no other bail application preferred by the present
applicant/accused which is pending disposal before the Hon’ble
Supreme Court of India, before the Hon’ble High Court of Delhi, or
any other Court in the present case FIR.
3. The applicant is in judicial custody since 29.09.2022. It is
the case of the prosecution that on 14.09.2022, secret information
was received by the NCB regarding one parcel lying at UPS
Express Pvt. Ltd., DCSC Cargo, Terminal-3, near Cargo Complex,
IGI Airport, New Delhi, suspected to contain narcotic/psychotropic
substance. The said parcel was allegedly destined to New Zealand
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and the name of the consignor was mentioned as Saraswati Thakur,
along with her address and mobile number. The NCB team reached
the spot, checked the parcel and allegedly found two sarees and two
ladies purses inside it. On checking the purses, concealed packets
were allegedly recovered from the bottom portion of both the
purses. The substance recovered from the two packets was weighed
as 180 grams each, total 360 grams, and on testing, it was found
positive for Amphetamine and, as per CRCL report,
Methamphetamine. The case of the NCB is that the parcel had been
booked by the present applicant from Jaipur on the instructions of
co-accused Efe @ Nnaka Christian Ilechukwu and that the
applicant disclosed her role in her statement recorded under Section
67 of the NDPS Act. The prosecution further alleges that pursuant
to her disclosure, the co-accused was apprehended and
incriminating material, including parcel booking receipt, was
recovered from his premises.
4. It is further the case of the NCB that the applicant was served
with notice under Section 67 of the NDPS Act on 28.09.2022 and
her statement was recorded on 28.09.2022 and again on 29.09.2022.
It is alleged that in the said statement, she admitted that she had
booked the parcel on the instructions of co-accused Efe @ Nnaka
Christian Ilechukwu. It is further alleged that on the basis of her
disclosure, the co-accused was apprehended and incriminating
material including the parcel booking receipt was recovered from
his premises. The applicant was formally arrested on 29.09.2022 at
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5:30 PM and was thereafter produced before the Court.
5. Learned counsel for the applicant has submitted that the
principal ground urged in the present bail application is the illegal
detention of the applicant by the NCB. It is submitted that though
the formal arrest of the applicant was shown only on 29.09.2022 at
5:30 PM, she had in fact been restrained and detained by the NCB
from 28.09.2022 itself. It is submitted that her statement under
Section 67 of the NDPS Act was recorded on 28.09.2022 and
29.09.2022 and she was not permitted to leave the NCB office in
the intervening night of 28/29.09.2022. It is argued that once the
applicant was not free to leave and was kept in the NCB office for
the purpose of interrogation and recording of statement, her custody
had effectively commenced on 28.09.2022 itself. Therefore, her
production before the Court beyond 24 hours from such restraint
was in violation of Article 22(2) of the Constitution of India and
Section 57 Cr.P.C.
6. Learned counsel for the applicant has further submitted that
such violation is not a mere irregularity but goes to the root of the
matter. It is argued that where the arrest or detention of an accused
is found to be unconstitutional, the rigours of Section 37 of the
NDPS Act cannot be pressed into service to justify continued
incarceration. Learned counsel has also relied upon the decision in
Kitoko Ngiembo Alain v. Customs, 2026: DHC: 1338 to contend
that where an accused is kept in the effective custody of the agency
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before formal arrest and is not produced before the Court within the
constitutionally mandated period, such arrest stands vitiated and the
accused becomes entitled to bail.
7. Per contra, learned Counsel appearing for the NCB has
opposed the application. It is submitted that the applicant was not
arrested on 28.09.2022 as sufficient material and reasons to believe
were not available at that stage. It is argued that her statement was
recorded under Section 67 of the NDPS Act and she herself had
stated that since she was tired, her further statement may be
recorded on the next day. It is further submitted that on 29.09.2022,
her statement was again recorded and only thereafter, upon finding
sufficient reasons for arrest, she was arrested at 5:30 PM. It is
argued that the applicant was produced before the Court on
30.09.2022 i.e. within 24 hours of her formal arrest and no
objection was raised before the learned remand Court at the time of
her production. It is submitted that the plea of illegal detention
cannot be permitted to be raised at this belated stage. Reliance has
been placed upon Arshad Hussain v. Narcotics Control Bureau, W.P
(CrL.) 255/2026 and CRL. M. A. 2499/2026 decided by Hon’ble
Delhi High Court on 16.03.2026.
8. I have heard the rival submissions and have perused the
record.
9. At the outset, it may be noted that the quantity involved in
the present case is commercial quantity and ordinarily, the embargo
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under Section 37 of the NDPS Act would apply with full force.
However, the issue raised in the present application is not merely an
issue of appreciation of evidence or sufficiency of material
connecting the applicant with the offence. The issue goes to the
legality of the applicant’s detention and arrest and the alleged
violation of her fundamental rights under Articles 21 and 22 of the
Constitution of India.
10. Article 22(2) of the Constitution mandates that every person
arrested and detained in custody shall be produced before the
nearest Magistrate within a period of 24 hours of such arrest,
excluding the time necessary for journey. The constitutional
protection is not dependent merely upon the description of
detention made by the investigating agency. If a person is, in
substance, restrained and is not free to leave, then the protection of
Article 22 cannot be defeated by postponing the preparation of the
formal arrest memo.
11. Though the applicant has primarily relied upon the facts of
her alleged illegal detention and the decision in Kitoko Ngiembo
Alain (Supra), this Court is also required to examine the legal effect
of such alleged detention in the light of the binding constitutional
principles governing arrest and production before the Court. In
Directorate of Enforcement v. Subhash Sharma, 2025 INSC 141,
the Hon’ble Supreme Court has held that where the accused had
been taken into custody earlier, the subsequent preparation of arrest
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memo at a later time would not save the arrest from the vice of
illegality if the accused was not produced before the Magistrate
within 24 hours from the time when his liberty was actually
curtailed. It was further held that once a Court, while dealing with a
bail application, finds that the fundamental rights of the accused
under Articles 21 and 22 have been violated while arresting him or
after arresting him, it is the duty of the Court to release the accused
on bail and bail cannot be denied on the ground of non-fulfilment of
the twin conditions under a special statute (Section 45 of PMLA in
that case). The ratio of the judgment is squarely applicable to the
facts of the present case also.
12. This Court also deems it apposite to notice the decision in
Habiob Bedru Omer v. Customs, Bail Application No. 1987/2024
decided on 03.06.2025 by the Hon’ble Delhi High Court wherein
the Hon’ble High Court of Delhi considered the meaning of
“custody” in the context of an accused who was intercepted at the
airport, taken to hospital and formally arrested later. The Hon’ble
High Court observed that “custody” is not dependent upon formal
arrest alone and that a person may be in custody when he is in the
physical hold or control of an officer having coercive power. In that
case, the Hon’ble Court noticed that the handing over and taking
over memos showed that the custody of the accused was being
transferred from one officer to another and held that such custody
without producing him before the Magistrate/Special Court within
24 hours was illegal. It was further held that the accused had been
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kept in illegal custody and that his subsequent formal arrest stood
vitiated. The Hon’ble High Court, relying upon Subhash Sharma
(Supra), held that where Articles 21 and 22 of the Constitution
stand violated, the accused is entitled to be released on bail despite
the restrictions under Section 37 of the NDPS Act.
13. Similarly, in Kitoko Ngiembo Alain (Supra), the Hon’ble
High Court of Delhi again held that the respondent could not be
absolved merely on the ground that formal arrest was effected later,
where the accused had, in fact, remained in the custody of the
agency from an earlier point of time. The Court further observed
that if serious violation going to the root of personal liberty is
shown, the same can be considered even at the stage of bail. It was
held that where the accused was kept in illegal custody and not
produced before the Court within 24 hours.
14. In the present case, the applicant has specifically pleaded and
argued that after her statement was recorded on 28.09.2022, she
was not permitted to leave the NCB office and was kept there
throughout the intervening night of 28/29.09.2022. This was the
central and specific argument addressed during the hearing. The
Court repeatedly put a query to the learned SPP for the NCB as to
whether the applicant was permitted to leave the NCB office after
recording of her statement on 28.09.2022 and whether there was
any material to show that she was free to go and had voluntarily
stayed back. Despite repeated questioning, no clear answer was
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furnished on behalf of the NCB. There is no categorical denial that
the applicant was not permitted to leave the NCB office after her
statement on 28.09.2022.
15. The NCB has relied upon the statement of the applicant
wherein she is stated to have said that since she was tired, her
statement may be recorded on the next day. Be that as it may, such a
recital by itself does not answer the material question whether she
was free to leave the NCB office after recording of her statement on
28.09.2022. There is a clear distinction between a person
voluntarily agreeing to appear again on the next day and a person
being kept in the office of the investigating agency overnight
without being allowed to leave. Once a specific plea of restraint and
detention has been raised, the burden was on the investigating
agency to satisfy the Court that the applicant was not in custody and
was at liberty to leave. No such material has been placed before the
Court.
16. The fact that the formal arrest memo was prepared only on
29.09.2022 at 5:30 PM cannot be treated as conclusive of the time
from which the applicant’s liberty stood curtailed. The substance of
custody has to be seen, not merely its form. If the applicant was not
permitted to leave the NCB office after recording of her statement
on 28.09.2022 and was kept there overnight for further
interrogation/recording of statement, then her detention had
effectively commenced on 28.09.2022 itself. In such circumstances,
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the constitutional mandate of production before the Court within 24
hours had to be computed from the point of such restraint and not
from the time chosen by the agency for preparation of the formal
arrest memo.
17. The failure of the NCB to specifically deny or explain the
applicant’s restraint after 28.09.2022 assumes significance. The
Court cannot ignore the constitutional consequence flowing from
such unexplained custody. The protection under Article 22(2) is
intended precisely to prevent a situation where a person is first kept
in the office of the investigating agency for prolonged interrogation
and thereafter a formal arrest is shown at a later point of time so as
to artificially extend the permissible period of custody without
judicial scrutiny.
18. The contention of the NCB that the applicant did not raise
any objection before the remand Court on the date of production
does not persuade this Court. A violation of Article 22(2) cannot be
neutralised merely because the accused did not immediately raise
an objection at the first available opportunity. The Court dealing
with bail is duty bound to examine the legality of detention once
such plea is raised and the material circumstances are brought to its
notice. Fundamental rights under Articles 21 and 22 are not
procedural technicalities which can be defeated by silence or lack
of legal assistance at the initial stage.
19. The decision in Arshad Hussain (Supra), relied upon by the
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NCB, is distinguishable on facts. In that case, the stand of the NCB
was that the petitioner was at liberty to leave and was not forcibly
detained on the previous day. The Hon’ble High Court also noticed
that the petitioner had failed to prove that his custody and arrest
were illegal and that the record suggested due compliance of
statutory provisions. Further, the proceedings before the Hon’ble
High Court were in the nature of a writ of habeas corpus after
judicial remand had been authorised. In the present case, however,
the specific factual assertion of the applicant is that she was not
allowed to leave the NCB office after recording of her statement on
28.09.2022 and, despite repeated queries of the Court, the NCB has
not categorically denied or explained this circumstance. Thus, the
factual foundation in the present case is materially different.
20. In view of the aforesaid discussion, this Court is of the
considered view that the applicant’s detention had effectively
commenced when she was restrained and kept in the NCB office for
the purpose of recording of statement on 28.09.2022. Since the
applicant was not produced before the Court within 24 hours from
the commencement of such restraint, there is a prima facie violation
of Article 22(2) of the Constitution of India. Such violation goes to
the root of the legality of the arrest and detention. In view of the
legal principles noticed above, the applicant is entitled to be
released on bail on this ground itself.
21. Since the bail is being granted on account of violation of the
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constitutional mandate relating to arrest and production, this Court
does not find it necessary to undertake a detailed examination of the
other grounds urged on merits. It is, however, clarified that nothing
stated herein shall be construed as an expression on the merits of
the case.
22. Accordingly, the application is allowed. Applicant/accused
Saraswati Thakur is admitted to regular bail in Case No.
VIII/67/DZU/2022, subject to furnishing personal bond in the sum
of Rs. 50,000/- with one surety in the like amount to the satisfaction
of the Court/Duty Judge/Link Court concerned, and subject to the
following conditions:
(i) The applicant shall not leave India without prior
permission of the Court.
(ii) The applicant shall appear before the Court on each
and every date of hearing, unless exempted by the Court.
(iii) The applicant shall provide her mobile number to the
IO as well as to the Court and shall keep the same
operational at all times.
(iv) The applicant shall not change her residential address
without prior intimation to the IO and the Court.
(v) The applicant shall not directly or indirectly contact,
threaten, influence or induce any prosecution witness.
(vi) The applicant shall not tamper with evidence or try to
obstruct the trial in any manner.
(vii) The applicant shall not indulge in any criminal activity
while on bail.
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(viii) The applicant shall deposit her passport, if not already
deposited, before the Court. In case she does not possess
any passport, the applicant has to file an undertaking to this
effect alongwith the personal bond.
23. In case of violation of any of the aforesaid conditions, the
NCB shall be at liberty to seek cancellation of bail in accordance
with law.
24. Copy of this order be sent to the Jail Superintendent
concerned for information and necessary compliance.
25. Application stands disposed of accordingly.
26. Copy of the order be given dasti as well as be sent to jail
superintendent for supplying the same to accused in jail. The copy
be also sent to the IO and to the surety for information.
(Jitendra Pratap Singh)
ASJ/Spl. Judge, NDPS/N Delhi
06.06.2026
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