2024 (10) TMI 467 - HC - Customs

Foreign national's bail denied for 9950 grams heroin possession under Section 37 NDPS Act embargo

Delhi HC dismissed regular bail application for contraband possession. Applicant, a foreign national, was found with 9950 grams of heroin (commercial ... Seeking grant of Regular bail - possession/recovery of contraband - discrepancy in the weight of the contraband - Applicant has alleged that the alleged recovery of the contraband is tainted as there is considerable delay in sending the alleged recovered contraband for sampling in terms of section 52-A of the NDPS Act - HELD THAT:- A minor discrepancy in the weight of the contraband, as is the case at hand, does not shake the roots of the case of prosecution, as has been noted by the Allahabad High Court in CHHOTEY LAL & KAVINDER KUMAR VERSUS U.O.I.N.C.B. [2022 (4) TMI 1639 - ALLAHABAD HIGH COURT]. The discrepancy of 9 grams, when the entire quantity of the contraband seized is 9950 grams may be attributable to environmental factors especially moisture. Moreover, the discrepancy in weight of the contraband seized is a matter of trial as has been held in a plethora of cases. The argument qua violation of Section 50 of the NDPS Act has also been made to essentially claim that the search was illegal. So far as the issue of applicability of Section 50 of the NDPS Act is concerned, there are two aspects of the same. Firstly, whether Section 50 of the NDPS Act was not complied with, and secondly, whether Section 50 could at all be made applicable to the case on hand - The law in regard to compliance of mandate of Section 50, about the phrase ‘search any person’ has been traversing on either side of proposition as to whether it refers only to recovery from the person or includes the bag which he may be carrying. In Pawan Kumar [2005 (4) TMI 549 - SUPREME COURT] the Apex Court was considering a situation where the contraband was seized from the bag of the Applicant and not his person. It was held that Section 50 is not applicable when the search is made of the bag being carried by the person. Further, it has been held that the phrase ‘search any person’ as described in Section 50 would not include the bag which was being carried by the individual and therefore, recovery of narcotics from the bag of the accused would not attract the provisions of Section 50 of the NDPS Act. The Court held that the term “person” under Section 50 would mean a natural person or a living unit and not an artificial person i.e., a bag or a briefcase. In any case, admittedly the facts of this case disclose that the Applicant was served with a Notice Section 50 of the Act. The qualms were merely regarding the missing “nearest” from the Notice, but the same cannot be gone into at the stage of deciding Bail Application, for it is a matter of trial - It is pertinent to note that the total quantity of contraband recovered in this case is of commercial quantity and thus, embargo of Section 37 of the NDPS Act is applicable. Considering the overall facts and circumstances of the case, and that the recovery of commercial quantity of narcotic substance was affected from the Applicant, this Court cannot persuade itself to believe that there are reasonable grounds to believe that he is not prima facie guilty of the alleged offence under NPDS Act. Moreover, it is the nature of the contraband seized which further weighs against any benefit that were to accrue to the Applicant. Heroin (a hard drug), an opioid, directly impacts the central nervous system, leading to rapid addiction, severe withdrawal symptoms, and has a high propensity for overdose, often resulting in death - Heroin use on a regular basis has been noted to have major health and lifestyle problems such as collapsed veins and skin abscesses, and in the long term, the effects are seen in the deterioration of the brain’s white matter and it also produces high intolerance and physical dependence, thus, proving to be highly addictive. The Applicant being a foreign national can prove to be a flight risk, especially when the alleged offence involves a large quantity of contraband. Thus, no ground for bail is made out and the Bail Application is dismissed. Issues Involved:1. Compliance with Section 50 of the NDPS Act.2. Discrepancy in the weight of the contraband.3. Delay in sampling procedure under Section 52-A of the NDPS Act.4. Allegation of false implication and pre-planned conspiracy.5. Applicability of Section 37 of the NDPS Act for bail.6. Applicant being a flight risk due to foreign nationality.Issue-wise Detailed Analysis:1. Compliance with Section 50 of the NDPS Act:The Applicant contended non-compliance with Section 50, arguing that he was not informed of his right to be searched before the 'nearest' Gazetted Officer or Magistrate. The court examined precedents, including State of Punjab vs. Baldev Singh and Pawan Kumar, which clarified that Section 50 applies to personal searches and not to baggage. The court concluded that Section 50 was not applicable in this case as the search was of the Applicant's baggage in a public place, not his person.2. Discrepancy in the weight of the contraband:The Applicant highlighted a 9-gram discrepancy in the weight of the contraband, arguing it casts doubt on the prosecution's case. The court referred to State of Punjab v. Balbir Singh and other cases, noting that minor discrepancies in weight do not invalidate the prosecution if there's sufficient material against the accused. The court attributed the discrepancy to environmental factors and deemed it a matter for trial.3. Delay in sampling procedure under Section 52-A of the NDPS Act:The Applicant argued that the 16-day delay in sampling violated procedural norms. The court noted that Section 52-A does not specify a time limit for sampling, and the Standing Order 1/88, previously relied upon, has been repealed. The court found no prejudice caused by the delay, referencing the directory nature of procedural compliance as per Balbir Singh.4. Allegation of false implication and pre-planned conspiracy:The Applicant claimed the pre-assigned case number indicated a conspiracy to falsely implicate him. The court accepted the Respondent's explanation that a case number is generated upon interception, and if no contraband is found, the file is closed. The court found no evidence of manipulation or false implication.5. Applicability of Section 37 of the NDPS Act for bail:The court emphasized the stringent conditions under Section 37 for granting bail in NDPS cases, requiring the accused to prove they are not guilty and unlikely to commit the offence. Citing Collector of Customs vs. Ahmadalieva Nodira and State of Kerala vs. Rajesh, the court found no reasonable grounds to believe the Applicant was not guilty, given the commercial quantity of heroin involved.6. Applicant being a flight risk due to foreign nationality:The court considered the Applicant's foreign nationality a flight risk, especially given the severity of the alleged offence involving a large quantity of contraband. This factor weighed against granting bail.Conclusion:The court, considering the commercial quantity of heroin recovered, the nature of the contraband, and the Applicant's foreign nationality, found no grounds for bail. The Bail Application was dismissed, and the trial court was directed to expedite the trial.