The High Court · 2025

Order

This Criminal Petition is filed under Sect-ions 480 & 483 of the Bhar;rtiya Nagarik Suraksha Sanhitha, 2023 (for short 'BNSS) sr'eking bail to the petitioner/ accused 1n F.No.HQPOtl.No.143 of 2023 CUS.PRtrV., on ttre lile of Special Sessions J'rdge for Trial of Cases under N DPS Act at L.B.Nagar, Rargareddy District registered for the olfences punishabJe under Sections 21, 23,25A,28 & 2') of Narcotic Drugs and I'sychotropic Substances Act, 1985 ifor short 'NDPS Act').

2. The crrse of the prosecution is that on 0'.2.07 .2023 at O4:10 hours at Rajiv Gandhi International Airport, Hyderabad, the petitiorLer/ accused was involved in illicit possession, transport anLd import of Heroin into India weigtrin;3 about 2027 grams which is a commercial qualtity in conLravention of the provisions of Section B of NPDS Act, 1985 and the offences punishable under Sections 21, 23,25A,28 &,29 of the NDpS Act, 1985. The petitioner/ accused was arrested on 2 O3.O7.2023 at Office of the Principal Commissioner of Customs, GST Bhavan, L.B.Stadium Road, Basheerbagh, Hyderabad-50004 and produced before the learned II Additional Liletropolitan Magistrate at Rajendranagar, Ranga Reddy on 03.O7.2022. Tl-re petitioner/ accused was remanded to judicial custody and lodged in Central Prison, Chenchalguda, Hyderabad.

3. Heard Mr.Md. Fasiuddin, learned counsei for the petitioner through Video Conference and Mr. Dominic Fernandez, learned Senior Standing Counsel for CBIC for the respondent- State.

4. Learned counsel for the petitioner submitted that the I petitioner has not committed the offence and she was falsely implicated in the above crime basing on the confession statement of accused and the same is not permissible under law. The police did not comply with the mandatory procedure under the provisions of Sections 50 to 52 of the NDPS Act during seizure of the alleged contraband and send it for chemical examination. He further submitted that the investigating officer have not mentioned the nature of the J contraband imd what are the tests which u,ere conducted, and aiso ttre colour of the contraband drug.

4.1. He further submitted that the petitioner was arrested on 03.O7 .20113, since then she rvas in judicial ctrst,rdy. Even according to the prosecution entire inve'stigation 1S completed and filed charge sheet. The petil ioner is not having any criminal antecedents. The pel itioner 15a foreigner anrl resident of Burundi citizen and he:: passport was seized by the prosecution ald the question of escaping from this Ccuntry does not arise. He also contended that the allegatic,n made by the respondent in th: counter aflidavit that by virtue of comrnitting the ollence by the petitioner tLere is serious effect on the ecororny of the country is rLot true and correct. He further submits that petitioner is not having arly criminal antece dr:nt.s and she u,ill appeal l- efore concerned court regularly to prosecute the case and zrlso abide by the conditions which are g,oing to be imposed by ihis Court. In support of his contentior-r he relied upon the orCers passed by this Court in Crl.P.i\1o.8958 of 2024 datecl 03.O9.2024, Crl.P.No.358B of 2024 dated \ \ 4

23.08.2024, and order dated 23.10.2024 in Crl.P.No.12576 ol 2024.

5. Per contra, learncd stancling counsel appearing for respondent submits tl-rat the respondent No.2 officials have seized the contraband ri,eighing about 2027 grarrt s of Herion which is a commercial quantity. The petitioner in her statement specifically started that the drug q'hich r.l,as seized from her possession is a banned substance ald she had committed the offence for u'ant of monev. She also stated that an unknown Kenyan iady approached her in Nairobi town and informed her that she would he paid 1000 US dollars if she can deliver certain narcotic drugs in India. He further submitted that petitioner had committed grave offence and the contraband seized from the petitioner is commercial quantity, merely because the petitioner is not having criminal antecedents, does not entitle her lor gralt of bail.

5.1. He further submitted that if this court grants bail there is every chance for non-availability/non-appearance of the petitioner for the court proceedings and there is definitely a ,/ ,/{' J flight risk as the petitioner is a foreign national ald also she vvill interfer: u.ith the investigation and inflttence the u,itness. Hence, prayed to dismiss the petition

5.2. [n support of his contention, learned c:,runsel relied upon the jlrdgment of Hon'ble Apex Court -n Narcotics Control Bureau Vs. Kashift, Criminal Appeal No. iO0i 1O02 ol 2022 be.ri,een Narcotics Control Burearl \rs. Mohit Aggarwalz cated 19.06.2022, Criminal Apperil No.137 of 2009 betrvecn Union of India Vs. Rattan Mallik @ Habuls, Criminal Ap:eal No.1223 of 2OO7 between Union of India Vs. Shri Shis Shanker Kesaria dated 14.09.20(t7.

6. Having considered the rival submissior-rs mzrde b1, the respective parties and after perusal of the material available on record. il reveals that the olficials of respondent No.2 have seized the contraband namely 2027 gratts of Heroin. There are specific allegations against the petitioner that she lr'as found in possession of 2027 grams of Heroir:, lr,hich is nrore than <:ommercial quantity. As per the provisions of ' 2024 SCc Online 3848 1zozz1 s scc zt+ 2 I izoosy z scc oz+ ' (2007) z scc 793 6 \ NDPS Act, 5 grams of heroin is small quantity and 250 grarns is commercial quantit)'. Whereas, in the case on hald contraband seized is hugc quantity of Her-oin i.e., 2O27 grams r.vhich is more than commercial quantit!'. The record further reveals that the investigating oflicer after completing investigation has fiied charge sheet and the same u,as numbered as SC.NDPS/OOOOIO4/2023 and the same is pending on the file of Special Sessions Judge for trial of cases under NDPS Act, 1985, at L.B.Nagar, R.R.District

7. In Narcotics Control Bureau Vs. Kashif (cited. supro/ the Hon'ble Apex Court at paragraph Nos.B and 39 u'hich reads as follows: .COMPLIANCE OF THE MANDATE UNDER SECTION 37:

8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offcnce is punishable with minimum sentence of ten years, the accused sha1l generally be not released on bail. Ncgation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind tJle provisions of Seclion 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail accused involved in the offences under the said Act. \the I I I I .-------------::----:------ -a1t {I 7 Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the ,rourt that there are reasonable grouncis lor trelieving that the accused is not guilty of the alleged offence :rnd that (iij he rs not iikely to commit aly offence while ,rn rail, are the <:urnulertive ald not alternative conditions.

39. lhe upshot of the above discussiorL rnay be summ:rrized as under: (i) (ii) (iiil The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, objcct ar-rd purpose of the Act; as also tl.e impacl on the society:rs a whole. It has to be interpreted literaJly and not liberalll,, which may ultimately frustrate the object, purpose and Preamble of the Act, While considering the apltiication for barl. the Court must bear in mind the provi:ions of SectiorL 37 of the NDPS Act which are mandatorw in nature. Recording of findings as mandated in Section 37 is r;ile qua non is known for gralting bail to the accused involved in the off,rnces under the NDPS Act. The purpose of insertion of Scclion 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to cnsure the early disposal of the seized contraband drugs ancl substalces. It was inserted in 1989 as ont: of the measu res to implement and to give effect to the 33 Intern:Ltional Conventions on the Narcotic dru gs and psychotropic substances. (iv) (v) (vi) Sub-section (2) of SectiorL 52A lays down the procedure as contemplated in sub-se:tion (1) thereof, and any lapse or delayed compli rnce thereof would be merely a procedural irregul.rity which would neittrer entitle the accust:d to be released on bail nor would vitiate the trial on that ground a1one. {ny procedural irregularity or illegality found to havc been r:ommitted in conducting the search and seizure 8 during the course of investigation or thercafter, t'ould by itself not make the entire evidence collected during the coursc of investigation, inadmissible. The Court would have to consider all the circumstanccs and irnd out w'hether any serious prejudice has been caused to the accused. Any lapse or delay in compliance of Section 52A by itsclf would neither vitiate the trial nor would entitlc the accused to bc released on bail. The Court will have to consider other circumstances and the other primar5r evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of thc NDPS Act." B. In the above said judgment the Hon'ble Apex Court overruled the decision ol the High Court on the ground that bail was granted to the respondent therein solely basing upon non compliance with Section 52A of the NDPS Act, u.hich governs the disposal of seized narcotic substances. The Court clarified that such non-compliance does not automatically invalidate a trial or entitied the accused to bail, emphasizing the necessity for the prosecution to estabiish the integrity of evidence and the chain of custody. The ruling underscored that procedural lapses must be evaluated within the broader context of the case, reinforcing the principle that non- compliance with Section 52A does not, by itself, warrant bail I --I-a- 9 or inval.idate the trial.

9. ln NC.3 v. Mohit Aggarwal supra, tlne Hon'b1e Apex Court spe<:il'cal1v held at paragraphs 8 and 18, which reads as fo11ou's: " 18. ln our opinion the narrow paramirters of baii availatbl ,' under Section 37 of the Act , have not bcen satished rn th<' f:Lcts of the instant case. At this stage, it is not safe to concluci: that the respondent has successfully demo:rstrated lhal there are reasonable grounds to believe Criminal Appeal Nos. ... ....... of 2022 @ Petitions for Special Leave to Appeal (Criminrrl) No. 6128-6129 OF 2O2l that he is :rot guilty of thc offt nce alleged against hirn, for hirn to ha.re been arlmit,te,l to bail. The length of the period of his custody or the fact that the charge-sheet has been frled ald the trial has comrrrcrLccd are by themselves rlot consideratioris that can bc trcatcd as persuasive grounds for granting relief to the respor-rcicnt under Seclion 37 of the NDPS Act.." iO. In flnion of India v. Rattan Malik, the Hon'ble A-pex Cour'1- held at paragraph 15, whicLL reads as follor.r,s: '' t5. Bearing in mind the above broad principles, we may no "\' consider the merits of the present appeeil. It is evident from ttre afore-extracted paragraph thrlt the circumstalces which have weighed with the learned Judge to conclude that it was a f1t case for grarrt of bail erre: (fl that nothing has been found from the possession of the 10 I rcspondent; (ir) he is in jail for the last three years, and (lir) that there is no chance of his appeal being heard within a period of seven years- In our opinion, thc stated circumstances may be relevant for grant of bail in mattcrs arising out of conviction under the Penai Code, 1860, etc. but are not sufficient to satisfu the mandatory requirements as stipulated in clause (b) of sr-rb-section (1) of Section 37 of the NDPS Act." 10-1. In the above said judgments, the Hon'ble Apex Court specifically held that the length of thc period of custody of the acclrsed even after filing of the charge sheet or if the trial comrnenced, is not a ground for grant of bail, especially the mandatory requirement AS stipulated under Section 37 of the NDPS Act. In Mohit Aggarwal, it is specifically held humanitarian ground also cannot be a ground for grant of bail.

11. ln Union of India w. Shiw Shaker l(esari, the Hon'ble Apex Court held at paragraph 13, which is reads as follows: "13. In the instant case, it appcars that there was a statement recorded under Section 67 of the Act- The - 11 respond3nt has taken a stand that the same rvas under coercion. The acceptability of such a stand is a matter of trial. Aclditionally, the High Court has not indicatr:d any reason iis to why it was of the view that the contr:aband articles i\-ere not seizecl from the exclusive posscssior. of the accu sed -rcspondcnl.." .l 1 .1 . Ir-r the above said judgrnent, the Hon'ble Apex Court held that the staternent vrhich was recorded Lrnder Section 67 of the NDPS Act under coercion, the sarne has to be adjudicated during the course of tr-ial .

12. In so far as the contention raised by the learned coLrnsei l-,rr the petitioner that basinll on the confessionrrl statement of the petitioner only the prosecutior-r irnplicated the petitioner as accused and filed final report and the same is contrary to law is concerned. respondent No.2 officials have seized the contraban<1 i.e 2027 grams of Herorn, frorn the possessi<rn of the petitioner, which is; <:ornrnercial quantity and the Investigating Offic:ers after conductin5; investigation filed the hnal report, wherein I I Ir l2 they specifically mentioned the role of petitioner/accused and as per the judgments of the Hor-r'ble Apex Court referred supra, the contention raised by the learned counsel for the petitioner is to be adjudicated during the course of trial.

13. The orders relied upon by the learned counscl for the petitioner are not applicable to the facts ancl circumstances of the present case on the ground that the rnandatory provisions of Section 37 of the Act was not considered and also the principles laid dovin by the Hon'ble Apex Court which are referred supra were also not brought to the notice of the Court.

14. Taking into consideration the facts and circurnstances of the case as well as the principle laid down by the Hon'ble Apex Court as rnentioned supra and in view of the mandatory provisions prescribed under Section 37 of the NDPS Act as well as the contraband i.e 2027 grarns of Heroine, seized lrorn the petitioner is rnore than comrnercial quantity, this Court is not inclined to grant bail i3 petitioner/ accused, I5. Ac:ordingly, the Criminal Petition is dismissed. Misce llaneous applications, pending il' any, shall stand clos,:d SD/- U.SUDHA ISTANT REGISTRAR A //TRUE COPY// Sl:CTION OFFICER To, t

1. The Superint()ndent of Customs, Customs Commissionerate, GST Bhavan, Basheerbagh Hyderabad-500004. I I

2. One CC to Mr. MOHD FASIUDDIN, Advocate [OPUC] 3. One CC to Mr. DOMINIC FERNANDES (senior standing counsel for CBIC) Advocerte [OPUC]

4. Two CD Copir>s w HIGH COUR DATED: 2310612025 ORDER cRlP.No.so€rg 012025 -:':-.:a--= ..r,'- Sl,' l'(. i zE otl 2rlt I + "lF:;p Accordingly, the Criminal Petition is Dis;missed. @ \ \0 I