Mr. J.S. Kushwaha and Ms. Tanya Kushwaha, Advs v. NARCOTICS CONTROL BUREAU

Judgment

1. The present Bail Application has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) on behalf of the Petitioner/Applicant seeking grant of Regular Bail connection with Crime No. VIII/28/DZU/2022 (‘Subject Case’) under Sections 8, 21, 23 & 21 of the NDPS Act, registered by the Narcotics Control Bureau. 2. Succinctly put, the facts are that on 19.03.2022, the Junior Intelligence Officer (JIO) received information from a secret source that one Tanzanian National namely Fikiri Nassoro Salehe Willa, holding passport bearing no. TAE430218 will be arriving from Addis Adaba Ethiopia by Ethiopian Airlines bearing Flight No. ET0688 at Indira Gandhi International Airport Terminal – 03, New Delhi (‘IGI Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39 Airport’) on 20.03.2022 and is suspected to carry Narcotics Drugs in the form of capsules by ingesting them and, if examined, a huge quantity of Narcotics Drugs may be recovered. The said information was reduced into writing and was put before the Superintendent, who marked the same to JIO with the direction to take necessary action. 3. Whereafter, the JIO constituted a team and left for IGI Airport. Upon reaching the Airport, the said Flight was scheduled to arrive at Gate No. 12 and the baggage were to be collected from Belt No. 9. The NCB team was on surveillance in the Arrival area and identified the Petitioner with his passport and other documents at the said Gate. The Petitioner was interrogated and he disclosed that he had swallowed 49 capsules of drugs and requested medical assistance to excrete the swallowed capsules. Thereafter, he was brought to the Emergency in OPD at Safdarjung Hospital, New Delhi. The X-Ray was conducted which revealed that there were foreign bodies in his alimentary system. 4. The JIO was informed on 23.03.2022, that the Petitioner will be discharged from the Hospital as all the capsules/foreign bodies present in his body have been excreted from his body in various intervals and has been medically cleared. All the expelled capsules were washed, cleaned and sealed with paper seal in a packet. Thereafter, the JIO opened the packet containing the said capsules, and upon testing 26 capsules were found to be containing Cocaine and weighed about 385 gms and remaining 23 capsules tested positive for Heroin which

weighed 320 gms. The hospital Doctor Jay Savla joined as the Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39 independent witness. All the seized contraband were taken into possession for further investigation and the Subject Case came to be registered. 5. Accordingly, after the completion of investigation, the NCB filed a complaint under Section 8/21/23/29 of the NDPS Act. During the course of proceedings in the complaint, the Petitioner moved an Application under Section 439 of the Code of Criminal Procedure, 1973 which came to be dismissed by the learned ASJ, Special Judge, Patiala House Court, Delhi (‘Trial Court’) vide order dated

26.04.2024. 6. Being aggrieved, the Petitioner has preferred the present Bail Application before this Court. 7. Learned counsel for the Petitioner submits, while seeking Bail for the Petitioner, that the manner in which the samples were taken were not as per the rules and ought to have been taken separately from each capsule instead from a mixture, thereby vitiating the entire procedure of taking samples by the NCB. Further, he submits, no notice under Section 50 of the NDPS Act was issued to the Petitioner, which is a blatant violation. 8. Learned counsel submits that the prosecution has not complied with the provision of Section 52A NDPS Act as the alleged heroin and cocaine were recovered on 23.03.2022 and the Application under Section 52A of the NDPS Act was moved only on 29.03.2022 and as per the mandate of the provision, the same must have been filed within 72 hours of the alleged recovery, which has not been done so in the Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39 present case. 9. He submits that there has been a delay in the trial as the Petitioner was arrested on 24.03.2022 and has been in judicial custody for over 2 years and 5 months and till date, only two witnesses have been examined. In these circumstances, the Petitioner be enlarged on regular Bail. 10. Learned counsel relied on the following decisions in support of his contentions.  Peter Dom Chima vs the State of NCT of Delhi Bail Appln. 4385/2024, dated 08.04.2025.  Pascal Ezeigbo @ Prince vs the State NCT of Delhi Bail Appln. 3494/2024, dated 31.01.2025.  Edith Namirembe vs Customs: Delhi High Court Bail Appln. 3267/2023, dated 09.09.2024.  Narcotics Control Bureau vs Abdullah Hussain Juma & Anr. 2003(2) JCC 1276.  Sandeep @ Chiku vs State (NCT of Delhi) 2024: DHC: 528.

11. On the other hand, the learned Senior Standing Counsel submits that the learned counsel for the Petitioner had incorrectly submitted that the sample was lifted from a mixture obtained by mixing the contents of all the capsules, infact, a small quantity was taken from each capsules and tested individually, each of the test came back positive for either Cocaine in 26 capsules or Heroine in 23 capsules. He submits that all the 49 capsules were white coloured powdery substances and, of which, the 26 capsules of Cocaine were then mixed into a homogenous mixture and similarly with 23 capsules of heroin after each capsules were tested. 12. Furthermore, he submits, all the compliances under NDPS Act Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39 were duly made and followed. The procedure under Section 52A was also duly complied with and certified by the learned Magistrate without any delay. 13. Learned Senior Standing Counsel vehemently contends that the seized contraband falls within the category of ‘commercial quantity’, thereby, attracting the embargo under Section 37 of the NDPS Act. He submits that keeping in view that the rigours of Section 37 of NDPS Act are applicable and the twin conditions stipulated are not satisfied in the present case as well as the gravity and severity of the punishment prescribed and the potential of the Petitioner to engage in similar activities and being a foreign national may flee from justice, if released, weigh against the grant of Bail. 14. He further submits that there is no delay attributable to the prosecution or to the Petitioner and the trial is at the stage of prosecution evidence. Therefore, the Petitioner is not entitled to the grant of Bail. 15. This Court has heard the submissions put forth by the learned counsel for the Petitioner as well as the learned Senior Standing Counsel and perused the record. 16. The prosecution’s case against the Petitioner in crux is that the Petitioner is a foreign national who came to India via flight and was intercepted at the IGI Airport, Delhi based on the secret tip off that he would be carrying contraband in his body, having ingested it. Upon being apprehended, the Petitioner disclosed in the interrogation that he had swallowed 49 capsules of drugs and requested for medical Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39 assistance in purging them out from his body. Thereafter, the Petitioner was taken to the Safdarjung Hospital, New Delhi and the X- Ray was conducted and the Doctor confirmed the presence of foreign elements in his body. Later, with the medical help, these elements were expelled from the body of the Petitioner and a total of 49 capsules were collected, which, when tested by the NCB were found to be containing Cocaine in 26 capsules and Heroine in the remaining 23 capsules which were of commercial quantity i.e. 385gms and 320 gms, respectively. 17. It appears from the record that the Petitioner had come to India with a clear intention to smuggle drugs by concealing the contraband through its ingestion into his body. 18. As far as delay is concerned, the learned Standing Counsel had fairly conceded that the delay in trial is not attributable either on account of the prosecution or of the Petitioner, but, there are procedural delays, however, now the trial is underway as the prosecution witnesses are being examined. There are total number of 17 witnesses, of which 3 have been examined before the learned trial court. 19. The learned counsel for the Petitioner had contended that there was non-compliance of Section 50 of the NDPS Act. On the other hand, the learned Standing Counsel had submitted that all the provisions under NDPS Act were duly complied with and the Petitioner has not brought anything on record to show any tampering with the samples. Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39

20. In the present case, the Petitioner after having expelled the capsules from his body, had himself washed and cleaned and handed it over to be collected in a polythene bag which was then duly sealed. Needless to say, the capsules were not found on the Petitioner but were flushed out with the medical help from his body. 21. The decisions cited on behalf of the Petitioner do not come to much aid of the Petitioner as they are distinguishable on facts inasmuch in Peter Dom Chima (supra), the quantity of the contraband seized was lesser and was recovered from the right pocket of the pant of the accused. In Pascal Ezeigbo (supra), one of the key arguments raised therein was the absence of independent witness, however, in the present case, the Doctor Jay Salva had agreed to be an independent witness, in whose presence the entire search and seizure procedure was conducted as well as the sampling. 22. With respect to the decisions in Sandeep (supra) and Edith Namirembe (supra), wherein the contrabands were mixed together and emptied into one and from the said mixture, the samples were drawn, however, in the present case, the samples were taken out from each of the capsules and after the NCB tested it with the testing Kit, they found two contrabands, Heroin and Cocaine, and thereafter, separate lots for the contrabands were created, as such the Respondent in the present case have not contravened the procedure of sampling as per law. Further, in NCB vs. Abdullah Hussain Juma (supra), the decision was passed in the criminal appeal against the judgement of conviction and the questions raised therein. In the present case, the Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39 trial is still underway. 23. The proceedings before the learned Magistrate reveals that the compliance of Section 52A of the NDPS Act was duly followed before him and as far as the plea of the Petitioner that the samples were taken before the learned Magistrate after two days, is a matter of trial and will be tested at the appropriate stage. 24. Insofar as the criminal antecedents of the Petitioner are concerned, since he is a foreign national, his criminal antecedents, if any, back in his Country, remain unknown as he was apprehended immediately after he deplaned and reached the Arrival Gate No. 12 of the IGI Airport, New Delhi 25. In the gamut of the facts and circumstances of the present case, at this stage, no ground for Bail has been made out, the prosecution has cited 17 witnesses and 3 of which have been examined so far. The trial is already underway, the Petitioner having entered the Country with a clear intention to smuggle the contraband cannot simply be brushed aside. Needless to say, the cases of NDPS have to be dealt with a stern hand to discourage the rampant usage of drugs procured from illegal channels which are often distributed to the youth of the country. 26. Accordingly, the Bail Application is dismissed, along with pending Applications. MAY 21, 2025/KM Click here to check corrigendum, if any SHALINDER KAUR, J Signature Not Verified BAIL APPLN. 3132/2024 Digitally Signed By:NEELAM Signing Date:23.05.2025 19:32:39