Delhi High Court – Orders
Emmanuel Obilo vs State Nct Of Delhi on 5 August, 2026
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC010525282025
+ BAIL APPLN. 2884/2025
EMMANUEL OBILO .....Petitioner
Through: Mr. Maneesh Bhardwaj with Mr.
Fahad Siddiqui, Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Ms. Shubhi Gupta, APP.
SI Habib Khan, Crime Branch.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 05.08.2026
1. This bail application has been filed under Section 483 read with
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS] for
seeking regular bail in connection with FIR No.263/2022 for the offences
punishable under Sections 21/29 of Narcotic Drugs and Psychotropic
Substances Act, 1985 [NDPS Act], Section 201 of Indian Penal Code [IPC]
and Section 14 of Foreigners Act registered at Police Station Crime Branch,
Delhi.
2. The earlier bail application filed by the applicant was dismissed as
withdrawn vide order dated 25.07.2024. Thus, the present application is the
first bail application being considered on merits.
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3. Learned counsel for the applicant submits that there has been non-
compliance with the mandatory provisions of the NDPS Act governing
search and seizure, inasmuch as no valid notice under Section 50 of the
NDPS Act was served upon the applicant. It is further submitted that,
without delving into the merits of the prosecution case, the applicant
deserves to be enlarged on regular bail solely on account of his prolonged
incarceration. Learned counsel points out that the recovery allegedly
effected from the applicant comprises 495 grams of heroin and 52 grams of
cocaine, and that the applicant has remained in judicial custody since
15.11.2022.
4. Per contra, Ms. Shubhi Gupta, learned APP for the State, opposes the
present bail application and submits that the applicant was apprehended on
the basis of specific secret information received by the Crime Branch
regarding the supply of narcotic substances. It is submitted that a
commercial quantity of contraband, namely 495 grams of heroin and 52
grams of cocaine, was recovered from the conscious possession of the
applicant. The mandatory provisions of the NDPS Act, including Sections
42, 50, 52A, 55 and 57, were duly complied with during the investigation. It
is further submitted that the FSL report has confirmed the recovered
substances to be heroin and cocaine, the charge-sheet as well as the
supplementary charge-sheet have already been filed, and charges have also
been framed.
5. Learned APP further contends that the applicant is a Nigerian national
who was found residing in India without a passport, whereupon Section 14
of the Foreigners Act was also invoked. It is submitted that, in view of the
gravity of the offence, the commercial quantity involved, the applicant’s
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alleged links with an international drug syndicate and the apprehension of
his absconding or tampering with the evidence, the twin conditions under
Section 37 of the NDPS Act are not satisfied and, therefore, the present bail
application deserves to be dismissed.
6. I have heard the learned counsel appearing for the parties and have
perused the record.
7. The facts of the case would indicate that on 14.11.2022, acting upon
specific secret information received during surveillance, the raiding team
apprehended the applicant at MBBS Nagar, Keshopur Mandi, Tilak Nagar,
Delhi. Upon search, a black bag carried by the applicant was found to
contain 52 grams of cocaine and 495 grams of heroin, which were recovered
from the conscious possession of the applicant.
8. During investigation, the applicant disclosed the involvement of co-
accused Surender. Analysis of the mobile phones of both accused revealed
WhatsApp communications between them relating to the supply of heroin.
The FSL report confirmed the recovered contraband to be heroin and
cocaine. The investigation stands concluded, the charge-sheet and
supplementary charge-sheet have been filed, charges have been framed, and
the trial is presently in progress.
9. There can be no quarrel with the proposition that the alleged recovery
is of commercial quantity and, therefore, the embargo contained in Section
37 of the NDPS Act would ordinarily govern the consideration of the
present application. Equally, however, it is now well settled that the
restrictions under Section 37 cannot be construed in a manner so as to
completely eclipse the constitutional guarantee of personal liberty under
Article 21 of the Constitution of India, particularly where an undertrial has
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remained incarcerated for an unduly long period and the trial shows no real
prospect of early conclusion.
10. The Supreme Court in the case of Rabi Prakash versus The State Of
Odisha,1 has duly observed:
“4. As regard to the twin conditions contained in Section 37 of the NDPS Act,
learned counsel for the respondent – State has been duly heard.
Thus, the 1st condition stands complied with. So far as the 2nd condition re:
formation of opinion as to whether there are reasonable grounds to believe
that the petitioner is not guilty, the same may not be formed at this stage when
he has already spent more than three and a half years in custody.
The prolonged incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the Constitution and in
such a situation, the conditional liberty must override the statutory embargo
created under Section 37(1)(b)(ii) of the NDPS Act.
[Emphasis supplied]
11. In Supreme Court Legal Aid Committee (Representing Undertrial
Prisoners) v. Union of India,2 recognised that while Section 37 of the
NDPS Act imposes stringent conditions for the grant of bail, denial of bail
coupled with prolonged delay in trial would result in continued deprivation
of personal liberty without a timely adjudication of guilt, a consequence
incompatible with the guarantee of a fair and speedy trial under Article 21 of
the Constitution:
“15. On account of the strict language of the said provision very few persons
accused of certain offences under the Act could secure bail. Now to refuse bail
on the one hand and to delay trial of cases on the other is clearly unfair and
unreasonable and contrary to the spirit of Section 36(1) of the Act, Section
309 of the Code and Articles 14, 19 and 21 of the Constitution. We are
conscious of the statutory provision finding place in Section 37 of the Act
prescribing the conditions which have to be satisfied before a person accused
of an offence under the Act can be released. Indeed we have adverted to this
section in the earlier part of the judgment. We have also kept in mind the
interpretation placed on a similar provision in Section 20 of the TADA Act by1
2023 SCC OnLine SC 1109
2
(1994) 6 SCC 731This is a digitally signed order.
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the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569].
Despite this provision, we have directed as above mainly at the call of Article
21 as the right to speedy trial may even require in some cases quashing of a
criminal proceeding altogether, as held by a Constitution Bench of this Court
in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225], release on bail, which can
be taken to be embedded in the right of speedy trial, may, in some cases be the
demand of Article 21. As we have not felt inclined to accept the extreme
submission of quashing the proceedings and setting free the accused whose
trials have been delayed beyond reasonable time for reasons already alluded
to, we have felt that deprivation of the personal liberty without ensuring speedy
trial would also not be in consonance with the right guaranteed by Article 21.
Of course, some amount of deprivation of personal liberty cannot be avoided in
such cases; but if the period of deprivation pending trial becomes unduly long,
the fairness assured by Article 21 would receive a jolt.”
[Emphasis supplied]
12. The Supreme Court in Union of India v. K.A. Najeeb,3 held that
statutory restrictions on the grant of bail, including those contained in
special enactments such as Section 43-D(5) of the UAPA and NDPS Act, do
not denude constitutional courts of their power to grant bail where continued
incarceration results in a violation of the fundamental right to personal
liberty and speedy trial guaranteed under Article 21 of the Constitution.
“12. Even in the case of special legislations like the Terrorist and Disruptive
Activities (Prevention)Act, 1987 or the Narcotic Drugs and Psychotropic
Substances Act, 1985 (“the NDPS Act“) which too have somewhat rigorous
conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi),
(1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005) 11 SCC 569 and
Umarmia v. State of Gujarat, (2017) 2 SCC 731 enlarged the accused on bail
when they had been in jail for an extended period of time with little possibility of
early completion of trial. The constitutionality of harsh conditions for bail in
such special enactments, has thus been primarily justified on the touchstone of
speedy trials to ensure the protection of innocent civilians.”
***
“15. This Court has clarified in numerous judgments that the liberty guaranteed
by Part III of the Constitution would cover within its protective ambit not only
due procedure and fairness but also access to justice and a speedy trial. In
Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v.
Union of India, it was held that undertrials cannot indefinitely be detained
3
(2021) 3 SCC 713
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pending trial. Ideally, no person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter. However, owing to the
practicalities of real life where to secure an effective trial and to ameliorate the
risk to society in case a potential criminal is left at large pending trial, the
courts are tasked with deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely trial would not be possible
and the accused has suffered incarceration for a significant period of time, the
courts would ordinarily be obligated to enlarge them on bail.”
[Emphasis supplied]
13. The aforesaid principle has been specifically applied to prosecutions
under the NDPS Act by the Supreme Court in Mohd. Muslim @ Hussain v.
State (NCT of Delhi)4. The Court observed that an interpretation of Section
37 which results in an accused remaining in custody for years awaiting
conclusion of trial would militate against the guarantee of a speedy trial
under Article 21.
“22……Grant of bail on ground of undue delay in trial, cannot be said to be
fettered by Section 37 of the Act, given the imperative of Section 436A which
is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil
supra). Having regard to these factors the court is of the opinion that in the
facts of this case, the appellant deserves to be enlarged on bail.”
14. As aptly observed by division Bench of this Court in Mohd. Hakim v.
State (NCT of Delhi)5, the Court must play the role of a “doctor” rather than
a “coroner”, by protecting the right to a speedy trial before it is rendered
illusory by prolonged incarceration, instead of recognising its violation after
the constitutional injury has become irreversible.
15. Tested on the aforesaid principles, this Court finds that the applicant
has remained in custody since 15.11.2022, i.e., for 3 years 8 months and 21
days. Investigation already stands completed and the charge-sheet has been
filed. The trial has progressed at a slow pace and out of 21 witnesses only 7
4
(2023) 18 SCC 166
5
2021 SCC OnLine Del 4623
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witnesses’ examination-in-chief has been carried out, despite the long period
of incarceration undergone by the applicant. Trial doesn’t seem to be
concluded in near future and there is nothing on record to indicate that the
delay in conclusion of trial is attributable to the applicant. The applicant has
no previous criminal antecedents and her jail conduct has been reported to
be satisfactory.
16. Insofar as the objection raised by the learned APP that the applicant is
also charged with the offence punishable under Section 14 of the Foreigners
Act, 1946, is concerned, this Court is of the opinion that the said
circumstance, by itself, would not disentitle the applicant from consideration
of the present application. The maximum punishment prescribed for an
offence under Section 14 of the Foreigners Act is imprisonment for a term
which may extend to five years. The applicant has already undergone
incarceration for a period of 3 years, 8 months and 21 days, which
constitutes a substantial part of the maximum sentence prescribed for the
said offence
17. In view of the aforesaid, the applicant is directed to be enlarged on
regular bail, on such conditions as may be imposed by the concerned Trial
Court.
18. The trial Court shall bear in mind that the applicant is a Nigerian
citizen, therefore, appropriate terms and conditions may be imposed to
secure his presence.
19. Nothing stated hereinabove shall however be construed as an
expression of opinion on merits of the case.
20. In light of these observations, the application stands disposed of.
21. A copy of the order be sent to the concerned Jail Superintendent for
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necessary compliance.
PURUSHAINDRA KUMAR KAURAV, J
AUGUST 5, 2026
tr/SA
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