2025 (1) TMI 963 - HC - Customs

Seeking grant of regular bail - smuggling of commercial quantity of Heroin - Investigating Agency failed to comply with the mandate provided under Section 50 of the NDPS Act - satisfaction of provisions of Section 37 of NDPS Act or not - applicant s status as a foreign national - HELD THAT - A perusal of the complaint filed by the Customs authorities before the learned Trial Court reveals that the present applicant Ghulam Hazrat Mirzale along with co-accused Abdul Khaliq Noorzai both nationals of Afghanistan were intercepted at the IGI Airport. Both the accused persons as well as the trolly bags carried by them were searched by the Customs officials. In their trolly bags some shampoo/hair color bottles were found containing black coloured-thick liquid having an unusual smell. The said liquid upon testing was found to be Heroin. Total 17 bottles weighing about 4.02 kg (including the weight of bottles) were recovered from co-accused Abdul and total 15 bottles weighing about 3.60 kg (including the weight of bottle) were recovered from the present applicant. Concededly the quantity of narcotic substance recovered in this case from the present applicant is commercial quantity i.e. about 3.60 kg of heroin. Therefore the twin conditions under Section 37 of the NDPS Act will have to be satisfied by the applicant so as to be entitled to grant of bail. When this Court considers the material placed on record by the respondent specifically the fact that recovery of 15 bottles containing Heroin of about 3.60 kgs was made from the trolly bag of the present applicant at the IGI Airport this Court is of the opinion that a prima facie case at this stage is made out against the applicant for commission of offences punishable under the provisions of NDPS Act. Notably the applicant herein is a foreign national and the trial is at a crucial stage i.e. the evidence of prosecution witnesses is being recorded. Considering the same this Court finds no ground to grant regular bail to the applicant at this stage. Conclusion - Bail denied based on the failure to meet Section 37 conditions the lack of significant procedural prejudice and the applicant s foreign nationality which increased the risk of absconding. Bail application dismissed.

1. ISSUES PRESENTED and CONSIDERED

The core legal questions addressed in this judgment include:

Whether the applicant is entitled to regular bail under the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), considering the recovery of a commercial quantity of heroin.
Whether procedural violations alleged by the applicant, particularly concerning Sections 50 and 52A of the NDPS Act, affect the admissibility of evidence and the applicant's eligibility for bail.
Whether the applicant's status as a foreign national impacts the decision on granting bail.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Bail under NDPS Act

Relevant legal framework and precedents: The primary legal framework is Section 37 of the NDPS Act, which imposes stringent conditions for granting bail in cases involving commercial quantities of narcotics. The Apex Court's interpretation in Narcotics Control Bureau v. Mohit Aggarwal clarifies the meaning of "reasonable grounds" under Section 37(1)(b), requiring credible and plausible grounds to believe the accused is not guilty and unlikely to reoffend.
Court's interpretation and reasoning: The court emphasized the mandatory nature of Section 37, requiring satisfaction of twin conditions for bail: the Public Prosecutor's opportunity to oppose bail and reasonable grounds to believe the accused is not guilty.
Key evidence and findings: The applicant was found with 3.60 kg of heroin, a commercial quantity, in a trolley bag at the IGI Airport. The court noted that the applicant is a foreign national, which increases the risk of absconding.
Application of law to facts: Given the commercial quantity involved and the applicant's foreign nationality, the court found no reasonable grounds to grant bail, aligning with the stringent requirements of Section 37.
Treatment of competing arguments: The applicant argued procedural violations and lack of independent witnesses, while the prosecution emphasized compliance with procedures and the applicant's risk of absconding.
Conclusions: The court concluded that the applicant did not meet the conditions for bail under Section 37 of the NDPS Act, leading to the dismissal of the bail application.

Issue 2: Procedural Violations and Admissibility of Evidence

Relevant legal framework and precedents: Sections 50 and 52A of the NDPS Act outline procedural requirements for search and seizure. The Supreme Court in Narcotics Control Bureau v. Kashif held that procedural irregularities do not automatically render evidence inadmissible.
Court's interpretation and reasoning: The court found that procedural lapses do not vitiate the trial or entitle the accused to bail unless serious prejudice is demonstrated.
Key evidence and findings: The court noted that photographs of the recovery were taken, and independent witnesses were present, countering the applicant's claims of procedural violations.
Application of law to facts: The court determined that the alleged procedural violations did not significantly prejudice the applicant's case, thus maintaining the admissibility of evidence.
Treatment of competing arguments: The applicant's counsel argued for bail based on procedural lapses, while the prosecution maintained that all procedures were followed adequately.
Conclusions: The court dismissed the procedural violation claims as insufficient to merit bail, emphasizing the need to consider the overall evidence and statutory presumptions.

Issue 3: Impact of Applicant's Foreign Nationality

Relevant legal framework and precedents: The NDPS Act does not specifically address foreign nationals, but their status can influence bail decisions due to flight risk considerations.
Court's interpretation and reasoning: The court considered the applicant's foreign nationality as a factor increasing the likelihood of absconding, thereby influencing the bail decision.
Key evidence and findings: The applicant's foreign status was highlighted as a significant risk factor in the court's assessment of bail eligibility.
Application of law to facts: The court applied the principle of risk assessment, considering the applicant's potential to flee the jurisdiction if granted bail.
Treatment of competing arguments: The applicant did not specifically address nationality issues, while the prosecution emphasized it as a critical factor against bail.
Conclusions: The court concluded that the applicant's foreign nationality contributed to the decision to deny bail due to increased flight risk.

3. SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: "The expression 'reasonable grounds' used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence."
Core principles established: The stringent conditions under Section 37 of the NDPS Act must be met for bail in cases involving commercial quantities of narcotics. Procedural violations do not automatically invalidate evidence or entitle the accused to bail.
Final determinations on each issue: The court denied bail based on the failure to meet Section 37 conditions, the lack of significant procedural prejudice, and the applicant's foreign nationality, which increased the risk of absconding.

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