Delhi High Court – Orders
Arinze Hillary Ali vs State Of Nct Of Delhi on 27 April, 2026
Author: Prateek Jalan
Bench: Prateek Jalan
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1022/2026
ARINZE HILLARY ALI .....Petitioner
Through: Mr. Meghan, Mr. Mukul Gupta,
Advocate.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Yudhvir Singh Chauhan, APP
with SI Ravinder.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 27.04.2026
1. By way of this application under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 [“BNSS”], the applicant seeks regular
bail in connection with FIR No. 1497/2023 dated 01.12.2023, registered
at Police Station Nihal Vihar, Outer District, Delhi, under Section 22(c)
of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“the
NDPS Act“].
2. I have heard Mr. Meghan, learned counsel for the applicant, and
Mr. Yudhvir Singh Chauhan, learned Additional Public Prosecutor. The
status report filed by the prosecution is also on record.
3. The prosecution case, as detailed in the status report, is that a secret
information was received on 01.12.2023, that a person of African origin
namely Hillary, would be arriving at 50 Feet Road, opposite Nilothi,
Dilip Vihar, Nihal Vihar, Delhi, at around 11:30 AM to supply
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amphetamine/MD. A raiding team was constituted, and the applicant was
apprehended at about 11:10 AM, when he arrived on a scooty. The
applicant attempted to throw away a polythene packet, which he removed
from his pocket, but was restrained by the raiding team. The packet was
found to contain an off-white crystal substance, which was tested with the
field testing kit, and found to be amphetamine, weighing approximately
60 grams. The polythene bag was kept in a transparent plastic box and
sealed, whereupon the FIR was registered. The sample was taken,
following the procedure under Section 52A of the NDPS Act, on
05.01.2024, and was sent to the Forensic Science Laboratory [“FSL”] for
examination on 16.01.2024. The FSL report confirmed that the substance
was “Methamphetamine”. The chargesheet has since been filed.
4. In support of the present application, Mr. Meghan submits that the
applicant has been in custody for a period of almost two years and five
months. Although charges have been framed, prosecution evidence has
not yet commenced. Thirteen witnesses have been cited in the
chargesheet, which makes it likely that the trial will take significant time.
5. Mr. Meghan further submits that, although the alleged recovery
was of a commercial quantity of amphetamine [being over 50 grams], the
seizure was neither in the presence of any independent witnesses, nor was
it photographed or videographed. He relies upon the judgments of this
Court in Bantu v. State Govt. of NCT of Delhi1, and Sunday Okeke
Ugwuoke v. State of NCT of Delhi2 to submit that, in such circumstances,
the benefit of doubt, at the stage of bail, ought to be given to the accused.
1
2024 SCC OnLine Del 4671 [hereinafter, “Bantu”].
2
BAIL APPLN. 1939/2025, decided on 02.12.2025 [“Sunday Okeke”].
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He further submits that the integrity of the seizure is doubtful as the
seized substance was sealed with the seal of an officer who was not part
of the raiding party at all. In this connection, he submits that in the FIR,
as well as the status report filed before this Court, it is stated that the
raiding party comprised of three Head Constables – HC Sandeep, HC
Nemi Chand, and HC Pankaj – as well as Constable Narender. Each of
these Head Constables would have had their own seal, but the seized
substance is stated to bear the seal of ‘RK’. According to Mr. Meghan, the
investigation was handed over to SI Rajkumar, after the seizure, and the
use of a seal bearing the initials ‘RK’ casts a doubt as to whether the
sealing took place at the point of seizure or later, in the Police Station.
6. Mr. Chauhan, on the other hand, submits that the seizure being of a
commercial quantity of contraband, the provisions of Section 37 of the
NDPS Act will be applicable, and there is no ground in the present case
to satisfy the twin conditions prescribed therein. He submits that the
recovery was from the person of the applicant, and any doubts as to the
procedure of seizure and sealing must be addressed in the course of trial,
but cannot lead to any benefit being given to the applicant at this stage.
Mr. Chauhan accepts that the seizure was neither conducted in the
presence of public witnesses nor videographed, but submits that the
applicable provisions of the BNSS had not come into effect at the
relevant time.
7. At the very outset, it may be noted that the present case involves
alleged seizure of a commercial quantity of contraband and the twin
restrictions on grant of bail, as prescribed under Section 37 of the NDPS
Act, therefore apply. However, the Supreme Court, in several cases,
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including Mohd. Muslim v. State (NCT of Delhi)3, Dheeraj Kumar Shukla
v. State of Uttar Pradesh4, and Rabi Prakash v. State of Odisha5, has
emphasised, that prolonged incarceration at the pre-trial stage, even in
cases involving special statutes with restricted bail provisions, would be
violative of Article 21 of the Constitution. This principle has been applied
in the specific context of the NDPS Act in Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v. Union of India and
Ors.6, and the principle has been applied even in the case of accused who
are not Indian nationals7. Mohd. Muslim further lays downs that the
assessment required under Section 37 is a prima facie assessment, and the
Court is not required to come to a conclusion beyond reasonable doubt,
with regard to the likelihood of guilt of the accused.
8. It is also clear from the judgements of the Supreme Court,
including the recent judgement in State of Punjab v. Sukhwinder Singh @
Gora8, that the aforesaid factors must be considered holistically, applying
the test under Section 37 of the NDPS Act, while also ensuring that the
constitutional guarantee under Article 21 of the Constitution is not
eclipsed.
9. Applying these principles to the present case, the Nominal Roll
placed before the Court states that the applicant was in custody for a
period of 2 years, 4 months, and 1 day, as of 01.04.2026. Thus, he has
now been in custody for a period of almost 2 years and 5 months. I am
3
(2023) 18 SCC 166 [hereinafter, “Mohd. Muslim”].
4
2023 SCC OnLine SC 918, paragraph 3.
5
2023 SCC OnLine SC 1109, paragraph 4.
6
(1994) 6 SCC 731.
7
Beneth Chukuwuddi v. State of NCT of Delhi, BAIL APPLN. 4295/2024, decided on 17.03.2025;
Sunday Okeke.
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informed that charges were framed on 31.08.2024, but prosecution
evidence has not yet commenced, despite approximately twenty months
having passed since then. Mr. Meghan candidly accepts that an
adjournment was taken on the last date of hearing before the Special
Court on his account, but it is undisputed that prosecution witnesses were
not available on several prior dates of hearing. In any event, the
prosecution has cited thirteen witnesses in the chargesheet, which is
indicative of trial taking a significant time.
10. As far as the merits of the case are concerned, the admitted position
is that the seizure was neither conducted in the presence of public
witnesses, nor was it photographed or videographed. This Court in Bantu
has held that, even prior to such requirements having been introduced in
the BNSS, this would be a relevant factor at the stage of grant of bail. The
observations of the Court are reproduced below:
“72. Almost all individuals carry a mobile phone compatible for
videography these days. From the above cases, it is clear that it is
open for the prosecution to furnish reasons to explain and justify the
absence of videography and photography in a case. Mere absence of
videography and photography of the recovery does not nullify the case
of the prosecution, however, the same can in some circumstances be
sufficient to create a doubt as to the veracity of the prosecution’s case.
73. The Hon’ble Apex Court, in a catena of judgments has held that the
more severe the punishment, greater has to be the care taken to ensure
that all the safeguards provided in the statute are scrupulously
followed.
74. While a little play in the joint has to be afforded to investigating
agencies to enable them to discharge their duties, the authorities also
have to be held accountable to prevent abuse of law. In cases where
the factum of recovery of the contraband is supported only by official
witnesses, lack of videography and photography, especially in the
absence of independent witnesses, casts a doubt on the recovery of the
contraband, unless the same is justified by cogent reasons.
8
2026 INSC 411.
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75. As already noted above, in the case of absence of independent
witnesses, it is to be seen whether any prejudice is caused to the
accused person and testimonies of the police officials can be believed
even without corroboration if the same is found to be credible. This
Court is of the opinion that the same rationale would extend to cases
where there is no photography and videography as well, specially
when the same has been deliberated and commented upon by Courts
on numerious occasions.
76. The sufficiency of the explanation, if any, is to be tested during the
course of the trial after the prosecution has led its evidence, however,
in the opinion of this Court, the absence of any independent evidence
to support recovery (presence of public witnesses, videography or
photography) is a relevant factor while considering applications for
grant of bail as the same casts a shadow over the very fulcrum of the
case.”
11. The same view has taken in the judgement of a coordinate Bench in
Sunday Okeke, which also concerns a case of a foreign national, and a
seizure which occurred on 07.04.2023, prior to the seizure in the present
case. The principle has been articulated by the Court in the following
terms:
“16. It is the case of the prosecution that the said raid was conducted
during daylight hours i.e. around 05.00 – 05.30 P.M. in a public place.
Despite this, no public witnesses have joined nor any cogent
explanation has been offered for the same. While the absence of
independent witnesses may not be fatal to the case of the prosecution,
it impacts the transparency and reliability of the search and seizure
process, particularly at the stage of bail, where the Court must assess
whether a prima facie case has been made out against the accused.
Reference in this regard may be had to the decision of the Coordinate
Bench of this Court in Beneth Chukuwuddi (supra) as well as Bantu
v. State Government of NCT of Delhi. Likewise, Hon’ble Supreme
Court in Shafhi Mohd. v. State of H.P.9 has also emphasised that the
video or photographic documentation of a crime scene, serves as a
critical safeguard, ensuring transparency and accountability in the
handling of evidence, which is evidently missing in the present case.
The following observations from Beneth Chukuwuddi (supra) could
beneficially be referred to:
“8. It is to be noted that the raiding party, acting on
9
2018) 5 SCC 311.
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information received on 10th March, 2023, had sufficient time
to secure independent witnesses before conducting the raid.
However, no reasonable explanation has been provided for this
omission. Since the alleged recovery took place in a public
area, where securing independent witnesses would not have
posed any practical difficulty, this lapse reflects a lack of
diligence on the part of the investigating agency. While the
absence of independent witnesses may not be fatal to the
prosecution’s case per se, it does impact the transparency and
reliability of the search and seizure process, particularly at
the bail stage, where the Court must assess whether a prima
facie case has been made out against the accused.
9. This Court in Bantu v. State Government of NCT of Delhi,
took note of the frequent and mechanical explanations offered
for the non-joinder of independent witnesses in cases involving
the seizure of contraband. It was observed that the absence of
independent witnesses, especially in crowded public places,
warrants careful judicial scrutiny. This practice undermines
the transparency of the seizure procedure and weakens the
evidentiary value of the recovery. In the present case, the
failure to associate independent witnesses, despite the raid
occurring in a public location, indicates a lapse in the search
process. While such lapses do not, by themselves, render the
recovery invalid, they diminish the evidentiary value of the
seizure and introduce reasonable doubt about the integrity of
the prosecution’s case, which becomes particularly relevant in
cases under the NDPS Act, where strict compliance with
procedural safeguards is imperative given the severe
consequences involved.
xxx xxx xxx
11. The Supreme Court, in the case of Shafhi Mohd. v. State of
H.P.8 emphasised that the video or photographic
documentation of a crime scene, serves as a critical
safeguard, ensuring transparency and accountability in the
handling of evidence. Further, in Bantu, this Court observed
that in instances where videography or photography has not
been undertaken, the prosecution can provide clear and valid
justifications for such omissions. These judicial observations
were made even prior to the enactment of the mandatory
videography and photography requirements under the BNSS,
illustrating that the Court has recognized the vital role of such
documentation in ensuring the fair administration of justice.
xxx xxx xxx
19. Additionally, it is pertinent to note that the Applicant has
been in custody for 2 years. Although the chargesheet has
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been filed, the charges are yet to be framed and there is no
indication that the trial will conclude in the foreseeable
future.
20. The right to life and personal liberty, enshrined under
Article 21 of the Constitution of India, 1950, cannot be
rendered nugatory by unwarranted delays in the judicial
process. The prolonged incarceration undermines the
fundamental right to personal liberty. The extended period of
custody, combined with the delay in trial, justifies the
Applicant’s plea for conditional liberty through the grant of
bail, thereby balancing the rights of the accused with the
requirements of justice.”
(emphasis supplied)”
12. The aforesaid binding authorities support the applicant in the
present case also. Here also, the alleged seizure took place at a public
place, during the day, but no public witnesses were associated. It was also
not photographed or videographed. The additional argument, with regard
to doubt being cast on the integrity of the process of seizure and sealing
of the recovered contraband, is left open to be addressed at the trial.
13. On a holistic consideration of the facts of the present case,
therefore, I am of the view that the applicant is entitled to be released on
bail. It is directed that the applicant be released on bail in connection with
FIR No. 1497/2023 dated 01.12.2023, registered at Police Station Nihal
Vihar, Outer District, Delhi, under Section 22(c) of the NDPS Act,
subject to furnishing of a bail bond in the sum of Rs. 50,000/-, with one
surety in the like amount, to the satisfaction of the concerned Trail
Court/Duty Magistrate, and subject to the following further conditions:
a. The applicant shall appear before the learned Trial Court on each
and every date of hearing fixed.
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b. The applicant shall surrender his passport to the learned Trial
Court, and shall not leave the country without the prior permission
of the learned Trial Court.
c. The applicant shall provide the address where he is residing during
the pendency of the case to the concerned Investigating Officer
[“IO”]/Station House Officer [“SHO”]. The applicant shall intimate
the IO/SHO, and file an affidavit before the concerned Trial Court,
regarding any change in his residential address.
d. The applicant shall furnish to the concerned IO/SHO, a mobile
number on which he may be contacted at any time and shall ensure
that the number is kept active and switched on at all times. The
same shall not be switched off or changed without prior intimation
to the IO/SHO.
e. The applicant shall not contact, nor visit, nor offer any inducement,
threat, or promise to any of the prosecution witnesses or other
persons acquainted with the facts of the case.
f. The applicant shall not tamper with evidence nor otherwise indulge
in any act or omission that is unlawful or that would prejudice the
proceedings in the pending trial.
g. The applicant shall not commit any offence during the period of his
release.
h. In terms of the judgment of the Supreme Court in Frank Vitus v.
Narcotics Control Bureau and Ors10, the State shall immediately
communicate the order granting bail, to the concerned Foreign
Registration Officer appointed under Rule 3 of the Registration ofBAIL APPLN. 1022/2026 Page 9 of 10
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Foreigners Rules, 1992, who in turn, shall communicate the order
to all concerned authorities including civil authorities in order to
enable them to take appropriate steps under the Foreigners Act,
1946, the Registration of Foreigners Rules, 1992, and Foreigners
Order, 1948, in accordance with law.
14. The bail application is disposed of in terms of the above.
15. It is clarified that the observations made herein are solely for the
purpose of adjudication of the present bail application, and shall not be
construed as an expression of opinion on the merits of the case, nor shall
they prejudice the rights and contentions of the parties at any stage of the
proceedings.
16. A copy of this order be sent to the concerned Jail Superintendent
for information and necessary compliance.
PRATEEK JALAN, J
APRIL 27, 2026
tg/KA/
10
(2025) 3 SCC 1.
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