The High Court · 2025

Ms. Yovo Bomkazi And The Sucerintendent of Customs, CustorrLs Commissionerate, GST Btravan, Basheerbagh, Hyderabad, 50OOO4. . . . . . petitioner/ accused . . . . . Respondent/ complainant GTiIrrdtl This Criminal Petition is filed praying this Court to enlarge the petitioner on bail who is arrayed as accused in HQ PCrR No.39 of 2022 on the file of the learned XV z 2 sKs,J Crl.P.No.11413 of 2O25 Additional metropolitan Magistrate, Rajendranagar, Cyberabad Commissionerate, registered for the offence punishable under Sections 8(c) read with 2I, 23, 25A, 28 and 29 of the Narcotic Drugs and Psychotrbpic Substances Act, 1985 (for short T{DPS 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 South African National was , intercepted at Rajiv Gandhi International Airport on

06.05.2022 and allegedly found with 6750 grams of heroin concealed in her luggage, though she denied knowledge of the contraband and asserted absence of mens rea as required under Sections 21, 23, and 29 of the NDPS Act,

1985. He emphasized that the search and seizure were vitiated by serious procedural lapses: non-compliance with Section 5O of the NDPS Act, which mandates informing the accused of her right to be searched before a magistrate or \1\I -..t i.,:. :; "n.:i:.ri,::::.:.1 .. l 3 sKs,J Crl.P.No.11413 of 2O25 Gazette<I 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 Singhl, K.K. Verma v. Unipn of India2, and Stzrte of Rajasthan v. Parma1and3, which held that such violations render the evidence inadmissible. He argued that an'y statement recorded under Section 67 of the NDPS Act war; inadmissible in light of the ruling of the Hon'ble 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 threshcld under Notification S.O. 1O55(E) dated 19.10.2001 (small ,luantity for heroin being 5 grams and commercial quantity 25O 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 contentled that the petitioner had no prior criminal antececlents, had been wrongfully implicated, and was not a '(rggq) 3 scc 299 ' 1rssa1 9 scc 348 'lzor+1 s scc 34s o (zoztl 4 scc 1 *4i i I, 4 sKs,J Crl.P.Ito. 1 14 L3 of 2025 i'\ habitual offender. The investigation was substantially completed, with seizure, questioning, and liling of the charge sheet already done, making her continued detention unnecessary. He further contended that theie 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 credibility of the case of the prosecution.

5. Learned counsel for the petitioner further contended that, on humanitarian grounds, the petitioner was a single mother with dependent children, and her prolonged detention in a foreign country caused undue hardship. He further submitted tJ:at the petitioner was willing to surrender her passport, report regularly to the investigating officer, and abide by any conditions imposed by the Court, thereby eliminating concems of flight risk. Judicial 'j ? : ,n 5 sKs,J Crl.P.No.114L3 of 2O25 preced€nts were cited, including Criminal Petition Nos. 8958 of 202,1 and 5362 of 2023 of the Telangana High Court, where bail was granted to foreign nationals in NDPS cases involving procedural violations and lack of direct evidence. He fur-her submitted that Section 37 of the NDPS Act, which imposes stringent conditions for bail in cases involving commercial quantities, should not be rigidly applied in her case given the absence of intent, knowledge, or cons'piracy. Therefore, he prayed the Court to grant bail to the lrctitioner by allowing this Criminal Petition.

6. C)n the other hand, learned standing counsel for the responrlent had submitted that the petitioner was apprehended at Rajiv Gandhi International Airport with 2027 grams of heroin concealed in her baggage, thereby commir-ting offences under Sections 8{cl, 2L, 23, 25A, 28 and, 29 of the NDPS Act, 1985 and that she knowingly agreed to carry narcotics for monetary consideration, thus establirshing culpable mental state. He emphasized that the search and seizure were conducted strictly in compliance with St:ction 50, as the petitioner was informed of her rights and the proceedings were carried out in the presence of a r i I \ a :l 6 sKs,J Crl.P.No.11413 of 2O25 Gazetted Officer, a lady officer, and lady panch witnesses. He further submitted that Section 42 empowered the customs ofhcers to conduct the search and arrest without warrant, and that the petitioner's claim of piocedural 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 her 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 she was not guilty and that she would not commit an offence while on bail.

7. tn 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. \r \ 7 sKs,", Crl.P.IIo.11413 of 2O25 In Customs v. Almadalieva Nodiras, State of M.P. v. Kajad6, Ram Samujh v. State of HaryanaT, Durand Didier v. Chief Secretary, Goa8, and State of Punjab v. Baldev Singhe, the Supreme Court underscored the stringent bar under Section 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 I-rling cf charge sheet is not sufficient to satis$ Section 37; Union of India v. Rattan Malikrl, which held that prolonlled custody or delay in trial cannot override the statutc,ry bar; State of Meghalaya v. Lalrintluriga Sailol2, which rejected humanitarian grounds such as illness as a basis frr bail in commercial quantity cases; State of Kerala v. Pratrhora, which reiterated that Section 5O applies only to personal search and not baggage; and NCB v. KashiFa, which :mphasized that negation of bail is the rule and grant '1zozt1 1z scc 302 'lzoorl 7 scc 673 '(rgga) 9 scc 609 '(rsgo) 1 scc 9s '(rggg) 6 scc 172 'o (zozzl I' scc 713 " (zoog):r scc 624 " (zozrl (; scc 1 'o 1zozz1r.2 scc 1 t: 8 sl(s,J Crl.P.No.11413 of 2O25 r'\ { is an exception, with the twin conditions under Section 37 being cumulative and mandatory and in Union of India v. Shiv Shanker Kesarirs and again in NCB v. Mohit Aggamralt6, 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 disrhiss 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 " 1zooz1 7 scc 798 'u (zozzl4 scc 713 9 sxs,J Crl.P.No.11413 of 2O25 Court rlust be satisfied that there are reasonable grounds to believe that the accused is not guilfy of the alleged offence and thilt she is not likely to commit any offence while on bail. g. Irr the present case, a huge commercial quantity of heroin weighing 3750 grams was seized from the petitioner at the airport. Though the petitioner contended that she was not in conscious possession of the said drug, her own statemr:nt recorded under Section 67 of the NDPS Act revealeC that she had agreed to transport the contraband for monetery consideration offered by a Kenyan lady, and she admittt:d that she was carrying the bag containing heroin concealed in African dresses, soaps, and a handbag. The learnecl counsel for the petitioner relied on Tofan singh v. State of Tamil Nadu (cited supra) to contend that confess;ional statements under Section 67 ate inadmissible; howev€:r, as held in subsequent judgments including Mohit Aggarwat (cited supra) and Unioa of India v. Shiv Shanker Kesarir?, the admissibility of such statements is a matter " (zootl;'scc 798 :li! ii.! 10 SI(Sr., Crl.P.I{o. 1 1413 of 2ol25 t, for trial, and at the stage of bail, the Court cannot discard them outright

10. It is the further contention of the learned counsel for the petitioner that the search was vitiated for non- compliance with Section 50 of the NDPS Act. However, the counter affidavit filed by the respondent demonstrated that the search and seizure were conducted in accordance with law, thereby satisfying the statutory requirements. Moreover, as clarified in State of l(erala 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 Bengal2o, holding that recovery from baggage does not attract Section 50

11. The petitioner also urged that she had no criminal antecedents and sought bail on humanitarian grounds. However, as consistently held in Jaseer SM v. State of " 1zozs1 2sccTzL " 1tsss; 8 scc 469 'o lzota; 9 scc 708 t1 sKft,J Crl.P.No.11413 of 2025 Kerala2l, Union of India v. Rattan Malik, and Statc of Meghalaya v. Lalrintlunga Sailo, absence of antecedents, prolonged custody, or humanitarian considerations cannot overri<le the statutory bar under Section 37. of NDPS Act. 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. I(ashif has consistently held that negatirn of bail is the rule and its grant is an exception in NDPS cases involving commercial quantity. The expression "reasonable grounds" under Section 37 requires something more than prima facie satisfaction and it contemplates substemtial probable cause to believe that the accused is not guilty. In the present case, given the recovery of a huge comm'lrcial quantity of heroin from the baggage of the petitioner, such satisfaction cannot be recorded.

12. [n view thereof, this Court is not satisfied that there are reilsonable grounds to believe that the petitioner is not guilty of the alleged offence or that she is not likely to comm.t any offence while on bail. The plea of innocence, lack oi antecedents, or humanitarian grounds cannot entitle " (zozzl 8 scc 389 \ T!' 12 sKsrI Crl.P.lfo. 11413 of 2O25 t-. \tt, her to bail in view of the statutory bar under Section 37 of the NDPS Act.

13. Therefore, the Criminal Petition is dismissed. However, as the investigation was completed and charge sheet was filed, the trial Court is directed to expedite the proceedings and dispose of the case at the earliest, keeping ;'a in view the mandate of Section 36A of the NDPS Act. Miscellaneous applications, if any pending, shall stand closed. sD/- ABDULLA K SISTANT //TRUE COPY'/ SECTION OFFICER To,

1. The XV Additional Metropolitan Magistrate, ranagar, Hyderabad.

2. The superintendent of customs,, Office of the Prl. Commissioner of Customs,GST Bhavan Basheerbagh, Hyderabad. 3. One CC to SRl. MD FASIUDDIN Advocate [OPUCI 4. One CC to SRl. DOMINIC FERNANDES (senior standing counselfor CBIC) Advocate IOPUC]

5. Two CCs to Special Public Prosecutor for Directorate of Revenue lntelligence DRI Hyderabad High Court at Hyderabad. [OUT]

6. Two CD Copies PIVPSL ft-. i1-"r. - --- ---- HIGH COt'RT DATED:08/1 212A25 4 oRPrrz- CRLP.No.'11413 of 2025 'fHE S Ts a (.) C * ? I JAN 2026 t l , CRIMINAL PEITITION IS DISMISSED. ^c4'\#-"