The Delhi High Court has granted bail to a Congolese national accused of swallowing and bringing in 1,198 grams of cocaine in 71 capsules. It held that several gaps in how Customs handled the recovered capsules raised enough doubt to satisfy the strict “twin conditions” of Section 37 of the NDPS Act, and that over four and a half years in custody also counted.
In NDPS cases involving commercial quantity, the court must consider both the period of pre-trial custody and the twin conditions of Section 37, and neither can be ignored. Procedural deviations from Section 52A and the Standing Order are not by themselves grounds for bail, but where several lapses, such as no weighing or sampling at the point of recovery, a doubtful chain of custody, delay in depositing the contraband and unexplained delay in sampling, together raise doubt about substantial compliance, the court can find the Section 37 test satisfied on a prima facie view. These findings are only for deciding bail.
On 25 April 2022, Customs stopped Ndulu Lukulungu Heritier at IGI Airport after he arrived from Ethiopia. A search found nothing, but he then allegedly said that he had swallowed capsules, and he was taken to RML Hospital. Between 25 April and 1 May, the capsules came out in five lots under five separate panchnamas, and the sealed containers passed between Customs officers on 21 occasions. The formal seizure, the opening of the capsules in front of a new set of witnesses, field testing and his arrest took place only on 8 May, and sampling before the Magistrate came on 31 May. Charges were framed in 2023, and only 13 of the 42 witnesses have been examined so far. Justice Prateek Jalan noted that the quantity (1,198 grams, against a commercial limit of 100 grams) attracts Section 37, and that both the period in custody and Section 37 must be weighed together, since neither can be ignored. He found five prima facie discrepancies. The capsules were not classified, weighed or sampled at the hospital, where facilities could have been provided, unlike the roadside cases the Customs relied on. The chain of custody was doubtful, because the seals were handed from officer to officer and were never sent for forensic examination, which the court said was important given the Noor Aga ruling. The final seizure was made before different witnesses, the contraband reached the godown 7 to 13 days late, against the 48-hour rule, and the three-week gap before sampling was unexplained. The court left open the objection to mixing the contents of the capsules for trial. It added that he has no criminal record, granted bail on a Rs 1 lakh bond with two verified sureties, and imposed conditions for a foreign national, such as surrendering his passport and registering with the Foreigners Regional Registration Office.
Note: This is the companion of the earlier Salum Mohamed Fundogoro v. Customs (Bail Appln. 516/2026), decided by the same judge on the same day, and the court said that three similar bail petitions were heard together, with separate judgments. The petitioner gave up the argument about illegal arrest and the 24-hour production rule. The facts are Customs’ allegations, and the court said its remarks are only for bail.
Citation: Ndulu Lukulungu Heritier v. Customs, Bail Appln. 459/2026 (with Crl.M.A. 3493/2026), Delhi High Court (Justice Prateek Jalan), decided on 16.10.2026 | 2026:DHC:9309
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