Order 21

Order Details: COPY OF ORDER
Pdf Text: IA No. 1/2025
SC No. 371/22
NCB Vs. Lydes Mbulo
29.07.2025
Present: Sh P C Aggarwal, Ld. SPP for NCB.
Sh Vibhor Vardhan, Ld. Counsel for
applicant/accused through VC.
The report of the concerned jail superintendent is
still awaited.
Now to come up for at 12:30 pm.
(Atul Ahlawat)
ASJ/Spl. Judge, NDPS/N. Delhi
29.07.2025
At 12:30 pm
Present: Sh P C Aggarwal, Ld. SPP for NCB.
Sh Vibhor Vardhan, Ld. Counsel for
applicant/accused through VC.
Vide my separate order of even date, the present
application is allowed and disposed off accordingly.
Copy of the order be given dasti as well as be sent to
jail superintendent for supplying the same to accused in jail.
(Atul Ahlawat)
ASJ/Spl. Judge, NDPS/N. Delhi
29.07.2025
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IA No. 1/2025
SC No. 371/22
NCB Vs. Lydes Mbulo
29.07.2025
ORDER
1. Vide this order I shall dispose off the bail application u/s
483 BNSS, 2023 moved on behalf of accused/applicant for grant
of regular bail. Reply filed by the IO.
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. It is submitted by Ld. Counsel for applicant/accused that
accused/applicant was apprehended at IGI airport on 17.02.2025
with respect to one order dated 17.02.2022 passed by Dy.
Director General, NCB on behalf of Director General, NCB u/s
50A NDPS Act qua the controlled delivery with respect to the
applicant/accused.
4. It is submitted by the Ld. Counsel for applicant/accused
that the applicant/accused was suspected to be carrying contra-
band and when she arrived in India by flight QR 582, she was
kept under the surveillance room situated at the arrival hall of IGI
airport. The identity of applicant/accused was confirmed from
her and she had allegedly informed the NCB officials that she
had swallowed 69 capsules of contra-band and requested for
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medical attention for removing the foreign body from her
stomach. She was then taken to Safdarjung hospital and after her
X-ray and medical examination, it was confirmed by the
concerned doctors and she had foreign body in her alimentary
system. Although the NCB had shown her arrest to have taken
place on 20.02.2022, however she was illegally detained since
17.02.2022 i.e. after she was detained at the IGI airport, upon
arrival in India. The applicant/accused was not produced before
the Ld. JMFC within 24 hours, as contemplated under article 22
(2) of the Constitution of India, thereby rendering her detention,
arrest and further custody illegal. The Ld. Counsel has relied
upon the decision of Hon'ble High Court of Delhi in ‘Habiob
Bedru Omer Vs Customs’, Neutral Citation:2025:DHC:4870.
5. It is further submitted by the Ld. Counsel for
applicant/accused that applicant/accused is suffering from HIV
AIDS and for her medical well being and safety, the present
application may be considered on humanitarian grounds as well.
6. Per contra, it is submitted by the Ld. SPP for NCB duly
assisted by the IO that allegations against the applicant/accused
are extremely serious and she had entered into India after
swallowing 69 capsules of contra-band. She was admitted at
Safdarjung hospital and from the said recovered capsules, 1.025
kg of heroin was found. As soon as she was discharged from the
hospital on 19.02.2022, the notice u/s 67 of the Act was issued to
her and she appeared before the NCB office on 19.02.2022
voluntarily. Thereafter, her statement was recorded voluntarily
and her arrest was legally effected on 20.02.2022 and she was
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produced before this Court on 21.02.2022 itself and the
mandatory compliance of article 22 (2) of The Constitution of
India and other relevant provisions of the Act was duly made.
She is a foreign national and if released on bail, she may abscond
from trial. Therefore, the NCB is strongly opposing the present
application.
7. I have carefully perused the decision of Hon'ble High
Court of Delhi in Habiob (supra) and the facts of the present
case are fully covered under the ratio of said judgment. There
was a specific intelligence/prior information which led to passing
of the order for controlled delivery under section 50A of the Act.
She was detained upon arrival in India on 17.02.2022 itself. She
was taken from the airport to the hospital and there was no
authorization for the continuous custody. Merely because the
arrest memo was prepared at a later stage, does not imply that she
was not in the custody and was free to leave. She was not
produced before this Court or before the Court of Ld. JMFC
within 24 hours, which is mandated by article 22 (2) of The
Constitution of India and also as per the provisions of CrPC.
Therefore, this Court is of considered opinion that she was kept
in illegal custody from 17.02.2022 till her production before this
Court on 21.02.2022. Therefore, her arrest on 20.02.2022 stands
vitiated. Therefore, in view of the decision of the Hon'ble
Supreme Court of India in ‘ED Vs Subhash Sharma’, Neutral
Citation:2025:INSC:141, as duly quoted by Hon'ble High Court
of Delhi in Habiob (supra), the rights of the applicant/accused
under article 21 & 22 (2) of The Constitution of India are
impinged and she has to be released on bail despite the rigors of
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section 37 of the Act. Furthermore, she is also HIV positive as
confirmed by the medical status report filed by the concerned jail
superintendent, therefore, in the considered opinion of this court,
the present applicant/accused has made out her case for grant of
regular bail to him. Hence, the applicant/accused Lydes Mbulo
is admitted to regular bail on following conditions :-
(i) On furnishing of personal bond of Rs. 1,00,000/- with
two local sureties of the like amount, to the satisfaction
of this Court.
(ii) She shall not leave the country without the
permission of this Court and she shall deposit her
passport with this Court (if not already done).
(iii) She shall not try to tamper the evidence or hamper
the trial or try to influence the remaining witnesses, in
any manner and shall not indulge in any act or omission
that would prejudice the proceedings in the present case,
in any manner whatsoever.
(iv) She shall furnish her present and permanent address
with supporting documents along with an
affidavit/undertaking to inform any change thereof
without delay to the IO concerned and this Court (no
later than 3 days of the said change).
(v) She shall attend the trial without any single default.
(vi) She shall mark her attendance with the concerned
NCB office on every first Monday of the Calendar
Month, till the trial is pending.
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8. Nothing stated herein shall tantamount to any expression
or opinion on the merits of the case.
9. The application under Section 483 BNSS, 2023 moved on
behalf of applicant/accused Lydes Mbulo for grant of regular bail
is accordingly disposed of as allowed.
10. Needless to say, that nothing expressed herein shall have
any effect on the merits of the case.
11. Copy of this order be sent to Jail Superintendent, Tihar Jail
for necessary intimation to the applicant/accused.
12. Application is disposed off accordingly.
13. Copy of the order be given dasti as well as be sent to jail
superintendent for supplying the same to accused in jail.
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/29.07.2025
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