The High Court · 2025

ORDER This Criminal Petition is filed praying this Court to enlarge the petitioner on bail who is arrayed as accused in S.C. NDPS No.1O4 of 2023 on the file of the learned Special ! 2 sKs,J Crl.P.I{o. 1OEO2 of 2O25 Sessions Judges for Trial of Cases under NDPS Act at L.B. Nagar, Ranga Reddy District at Hyderabad, registered for the offence punishable under Sections 21, 23, 25A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short'NDPS ActJ.

2. Heard Sri Mohd. Fasiuddin, learned counsel appearing on behalf of the petitioner as well as Sri Dominic Fernandes, learned Standing Counsel appearing on behalf of the respondent.

3. Learned counsel for the petitioner submitted that the petitioner is a citiz,en of Republic of Tanz,ania was intercepted at R4iiv Gandhi International Airport on

26.01.2022 and allegedly found with 1389 grams of heroin concealed in her luggage, though he denied knowledge of the contraband and asserted absence of mens rea as required und.er Sections 2L,23, antd,29 of the NDPS Act, 1985. He emphasized that the search and seizure were vitiated by serious procedural lapses: non-compliance with Section 50 of the NDPS Act, which mandates informing the accused of her right to be searched before a magistrate or Gaz,etted. 3 sKs'J Crl.P.No.1O8O2 of 2O2S officer, and violation of Section 42, which requires prior written authorization for conducting searches. In support of his submissions, he placed reliance on State of Punjab v. Balbir tiinghl, K.K. Verma v. Union of India2, and State of Raj;rsthan v. Parmaqand3, which held that such violations render the evidence inadmissible. He argued that any statement recorded under Section 67 of the NDPS Act was in,rdmissible in light of the ruling of the Honble Supreme Court in Tofan Singh v. State of Tamil Nadua, unless r:orroborated by independent evidence.

4. L,:arned counsel for the petitioner contended that although the seized quantity exceeded the commercial threshold under Notification S.O. 1O55(E) dated 19.1O.2001 (small rluantit5r for heroin being 5 grams and commercial quantifT 250 grams), the petitioner had no knowledge or intent to traffic narcotics, and her role was limited, possibly due to coercion or financial exploitation. He further contencled that the petitioner had no prior criminal anteced.ents, had been wrongfully implicated, and was not a t 1rssa13:;cc 299 '(rgsa)9 !;cc 348 ' eotql s:;cc 345 o (zoztl4:;cc 1 \= I]r I I ! I I i i 4 sKs,J Crl.P.t{o. lOE(2 of 2or25 habitual offender. The investigation was substantially completed, with seizure, questioning, and frling of the charge sheet already done, making his continued detention unnecessary. He further contended that there are defects in the panchanama and documentation, including lack of proper identification of witnesses, absence of independent and neutral witnesses, failure to maintain chain of custody, contradictions between the panchanama and investigation report, improper sealing and handling of narcotics, absence of videography or photographic evidence, and failure to record the petitioner's legal rights and contended that these lapses undermined the credibitity of the case of the prosecution.

5. Learned counsel for the petitioner further contended that, on humanitarian grounds, the petitioner was the citr?,en of Republic of Tanzania and his prolonged detention in a foreign country caused undue hardship. He further submitted that the petitioner was willing to surrender his passport, report regularly to the investigating officer, and abide by any conditions imposed by the Court, thereby eliminating concerns of flight risk. Judicial precedents were 5 sKs,J Crl.P.IYo. 1O8 02 of 2O2S cited, including Criminal Petition Nos. 8958 of 2024 and 5362 of 2C23 of the Telangana High Court, where bail was grantecl to foreign nationals in NDPS cases involving procedr:ral violations and lack of direct evidence. He further submitted that Section 37 of the NDPS Act, which imposes stringe.rt conditions for bail in cases involving commercial quantities, should not be rigidly apptied in her case given the abs,ence of intent, knowledge, or conspiracy. Therefore, he prayed the Court to grant bail to the petitioner by allowin,g this Criminal Petition.

6. Ctn the other hand, learned standing counsel for the responrlent had submitted that the petitioner was apprehr:nded at Rajiv Gandhi International Airport with 1389 grams of heroin concealed in her baggage, thereby committing offences under Sections 8(c), 21, 23, 2SA,2g and 29 of the NDPS Act, 1985 and that his own statement revealerl collusion with an unknown persons, and that he knowingly agreed to carry narcotics for monetary consideration, thus establishing culpable mental state. He emphasized that the search and seizure were conducted strictly in compliance with section so, as the petitioner was \ v Tr i 6 sKs,J Crl.P.No.1OEO2 ot 2o25 informed of his rights and the proceedings were carried out in the presence of a Gazetted Officer, a lady ofhcer, and lady panch witnesses. He further submitted that Section 42 empowered the customs officers to conduct'the search and arrest without warrant, and that the petitioner's claim of procedural lapses was unfounded. He contended that the contraband was properly inventorised under Section 52A, samples were drawn before the Magistrate, and laboratory reports confirmed the seized substance as heroin and that being a foreign national, the petitioner was a flight risk, and his release would hamper investigation and adversely affect national security and economy. He further contended that Section 37 of the NDPS Act imposed stringent conditions for bail in cases involving commercial quantity, and the petitioner failed to satisfy the twin requirements of proving that he was not guilty and that he would not commit an offence while on bail.

7. In support of his submissions, he placed reliance on a catena of binding precedents which uniformly held that bail under the NDPS Act is an exception and denial is the rule. l./ 7 sKs,J Crl.P.No.1O8O2 of 2O25 In Cusl:oms v. Almadalieva Nodiras, State of M.P. v' Kajad6, Ram Samujh v. State of HaryanaT, Durand Didier v. Chief Secretaty, Goa8, and State of Punjab v. Baldev Singhe, the Supreme Court underscored the..stringent bar under fiection 37 and emphasized that individual liberty must yield to larger public interest in narcotics cases. Further reliance was placed on NCB v. Mohit Aggarurallo, where the Court clarified that completion of investigation or Iiling of charge sheet is not sufficient to satisfy Section 37; Union of India v. Rattaa Malikrr, which held that prolonged custody or delay in trial cannot override the statutory bar; State of Meghalaya v. Lalrintlunga Sailo12, which r.ejected humanitarian grounds such as illness as a u""i" fcr bail in commercial quantit5r cases; state of Kerala v. Prabhurs, which reiterated that Section 5O applies only to personztl search and not baggage; and NCB v. KashiFa, which e mphasized that negation of bail is the rule and grant '(zozr) 17 scc 302 t (zoor) 7 :;cc 673 '1rss+y9:;cc 609 '(rsgo) 1 :;cc 95 '(rgsg) 6:;cc L72 " lzozzl4 scc 713 " (zoog) zscc624 " (zoz:) o scc 1 " (zozl) zsccT2L 'o lzozzl 12 scc 1 I i i i I I 8 sKs,J Crl.P.IIo. 10EO2 ol 2o.25 is an exception, with the twin conditions under Section 37 being cumulative and'mandatory and in Union of India v. Shiv Shanker Kesarils and again in NCB v. Mohit Aggaruall6, the Court held that statements under Section 67, even if retracted or alleged to be coerced, are matters for trial and cannot alone justify bail. Therefore, he submitted that in the absence of antecedents, prolonged custody, completion of investigation, or humanitarian considerations cannot entitle an accused to bail in NDPS cases involving commercial quantity unless the strict twin conditions of Section 37 are satisfied. Therefore, he prayed the Court to dismiss the Criminal Petition.

8. In the light of the submissions made by both the learned counsel and upon perusal of the material available on record, it appears that the contraband seized from the petitioner amounts to a commercial quantity of heroin. Therefore, the entitlement of the petitioner to bail has to be examined in view of the rigour of Section 37 of the NDPS Act, 1985, which mandates that before granting bail, the " (zooz) 7 scc 798 '" 1zozz1 4 scc 713 9 sKs,J Crl.P.Ito. 1O8O2 of 2O2S Court must be satisfied that there are reasonable grounds to believe that the accused is not guilty of the alleged offence and th.at she is not likely to commit any offence while on bail.

9. ln the present case, a huge commercial quantity of heroin weighing 1389 grams was seized from the petitioner at the airport. Though the petitioner contended that he was not in conscious possession of the said d*g, his own statement recorded under Section 67 of the NDPS Act revealed that he had agreed to transport the contraband for mone&rry consideration, and he admitted that he was carrying the 108 capsules containing heroin in his body. jfhe lee.rned counsel for the petitioner relied on Tofan Singh v. State of Tamil Nadu (cited supra) to contend that confess;ional statements under Section 67 are inadmissible; howev€'r, as held in subsequent judgments including Mohit Agganral (cited supra) and Union of India v. Shiv Shanker KesaritT, the admissibility of such statements is a matter for trial, and at the stage of bail, the Court cannot discard them outright. " {zootl 7 scc 798 D2- 10 sKs,J Crl.P.lt[o. 1O8 02 of 2o.25

10. It is the further contention of the learned counsel for the petitioner that the search was vitiated for non- compliance with Section 5O of the NDPS Act. However, the counter affidavit filed by the respondent dernonstrated that the search and seizure were conducted in accordance with law, thereby satis$ring the statutory requirements. Moreover, as clarilied in State of Kerala v. Prabhul8, Section 50 applies only to personal search and not to baggage carried by the accused. This position was reiterated in Sura v. State of Gujaratle and SK Raju v. State of West Benga[zo, holding that recovery from baggage does not attract Section 50. ' 11. The petitioner also urged that he had no criminal antecedents and sought bail on humanitarian grounds. However, as consistenfly held in Jaseer SM v. State of Kerala2l, Union of India v. Rattan Malik, and State of Meghalaya v. Lalrlntlunga Sailo, absence of antecedents, prolonged custody, or humanitarian considerations cannot override the statutory bar under Section 37 of NDPS Act. " 1zozl1 zsccT2t " (tggg) 8 scc 469 'o lzoray g scc 708 " lzozzy 8 scc 389 i I i i! Ij I I :l ,l ,l :l ,.1 :i i , I I i \ \ 11 sKs,J Crl.P.No.1O8O2 of 2025 The Hon'ble Supreme Court in Ram Samujh v. State of Haryana, State of M.P. v. Kajad, Customs v. Almadalieva Nodira, and NCB v. Kashif has consistently held that negatic,n of bail is the rule and its grant is an exception in NDPS irases involving commercial quantity. The expression "reasonable grounds" under Section 37 requires something more :han pima facie satisfaction and it contemplates substantial probable cause to believe that the accused is not guilly. In the present case, given the recovery of a huge comme,rcial quantity of heroin from the body of the petitioner, such satisfaction cannot be recorded. 12- In view thereof, this Court is not satisfied that there a.re reursonable grounds to believe that the petitioner is not guilty rlf the alleged offence or that he is not likely to commit any oflence while on bail. The plea of innocence, lack of anteceCents, or humanitarian grounds cannot entitle his to bail in view of the statutory bar under Section 37 of the NDPS A.ct.

13. 'lherefore, the Criminal Petition is dismissed. However, as the investigation was completed and charge t L2 sKs,J Crl.P.No.1O8O2 of 2025 sheet was filed, the trial court is directed to expedite the proceedings and dispose of the case at the earliest, keeping in view the mandate of Section 36A of the NDpS Act. Miscellaneous applications, if any pending, shall stand closed //TRUE COPY// SD/. AHMED ABDULLA KHAN ISTANT R OFFICER To, t

1. the XV Additional MetroPolita n Magistrate, Cyberabad, Rajendranagar, Hyderabad

2. The superintendent of Customs, (Preventive) Customs Commisionerate, GST Bhavan, Basbeerbagb, HYderabad.

3. One CC to SRl. MD FASIUDDIN Advocate IOPUC] 4. One CC to SRl. DOMINIC FERNANDES (senior standing counsel for CBIC) Advocate IOPUCI

5. Two CD CoPies PK/PSL w HIGH CICURT DATED:08/1 212025 , ot<llEtl CRLP.No.10802 of 2025 \ a ? I Jt}l 2026 i ) CRIMINAL PEITITION IS DISMISSED *'{A h6r