TaxTMI 
TaxTMI 
2026 (9) TMI 1781
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....nt No.1 - UoI. For the Respondent-DRI: Ms. Ruju Thakker with Priyanshu Doshi, Mr. Vinod Chate, APP, Mr. V.A. Kulkarni, APP for the Respondent - State. JUDGMENT 1. Heard learned Counsel for the parties. Perused the record including the written submissions, where filed. 2. As the learned Special Judge declined to grant bail, the applicants have preferred these Applications for bail. More or less, the Applications have arisen out of similar facts, giving rise to common questions of facts and law. Therefore, all the Applications are being decided by this Common Judgment and Order. 2.1 The Applications are opposed filing the Affidavit-in-Reply. 2.2 Details of the cases in which bail is sought are as under:- BA No. Court NDPS Spl Case No. Cr./File No. AIU Sections under NDPS Act 1832/2025 Special Judge, Sessions Court, Gr. Bombay 1218/2022 F.No. SD/INTAIU/ 99/2022-AP 'D' Date: 06.04.2022 8(c) r/w 21 (c), 23(c),27, 27 (A) & 28 3390/2025 Special Judge, Sessions Court, Gr. Bombay 1946/2024 F.No. DRI/MZU/C/INT-29/2024 Date: 28.03.2024 8(c), 35, 37, 54 r/w21(c),23(c),28, 29 & 30 4341/2025 Special Judge, Sessions Court, Gr. B....
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.... 13.30 hours, he was produced before the 8th Court of the learned Additional Chief Metropolitan Magistrate, Esplande and, permission of the Court was obtained u/S.103 of the Customs Act, 1962 ("Customs Act"), for medical examination including the X-ray and detention of the applicant. Further, the applicant was hospitalized at Sir J.J. Hospital, Mumbai where he was medically examined and treated. 3.2 During his hospitalization, total 95 oval-shaped capsules were naturally ejected by the applicant through rectum (40 capsules on 07th and 55 capsules on 08th April, 2022) under the supervision of Medical Officers/s (experts). On 09.04.2022, Shri Deshmukh visited the hospital and, in the presence of two panchas, doctor, hospital staff members and the applicant, he seized the capsules and recorded the panchanama. The seized capsules were brought to the Office of AIU. On 10.04.2022, the capsules were cut opened in the Office of the AIU in presence of Shri Deshmukh, other Officers of AIU, panchas and the applicant. The powdery substances therein was homogenous. Therefore, the powder from one capsule was tested with the drug field testing kit (DFTK). The test revealed that the substance i....
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....equest of the DRI team, the applicant accompanied them to the office of the Air Intelligence Unit (AIU) as the team intended to carry out his personal search and search of his baggage under NDPS Act. The applicant was then informed that he has the right to be searched in presence of a Magistrate or a Gazetted Officer. In response, he consented for carrying out his personal search in the presence of Gazetted Officer. Therefore, the officer called Mr. V. Sunil Kumar, Superintendent of Customs and informed the applicant that said Mr.V.Sunil Kumar was a Gazetted Officer. The applicant acknowledged this fact. Shri Vikas Maharshi, Intel. Off. also served upon the applicant a notice u/S. 50 NDPS Act to that effect which was singed by panchas as a token of the service in their presence. The notice reads:- "Whereas there is reason to believe that some Narcotic substance, covered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 are in your possession, and therefore, your personal search is to be conducted. You are hereby informed that under the provisions of section 50 of the NDPS Act,1985, you have a right to be searched in presence of a Magistrate or a Gazette....
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....ne. The 74 capsules were identical in size and shape and the white coloured powder appeared homogeneous. Therefore, the white coloured powder was kept in a plastic packet; thoroughly mixed; weighed 1108 grams net and seized under panchanama along with the capsules' packaging material. 4.4 Statement of the applicant was recorded u/S. 67 NDPS Act on 30/31.03.2024. He revealed that the capsules were handed over to him by one Obodo (a Sierra Leone-based associate) at a hotel in Freetown, Sierra Leone, on 26/27.03.2024. He had ingested them over two sittings before travelling via Accra and Addis Ababa to Mumbai, in exchange for USD 2000 promised for successful delivery to an accomplice in India (details of whom were to be shared by Obodo only after his arrival). He disclosed being part of a syndicate along with Obodo and one O.C. Wonder, which had earlier used another carrier (Vincent Benson) to smuggle drugs to Delhi in February 2024 and, voluntarily furnished WhatsApp chat screenshots and surrendered his mobile phones for forensic verification, besides tendering both his Sierra Leonean and a Nigerian passport held in a different name. 4.5 The applicant came to be arrested on 31.....
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....plication u/S.103 u/S.103 (3) & (8) Customs Act seeking permission for medical examination of the applicant and bringing out the capsules from his body was filed before the 47th Court of the learned Additional Chief Metropolitan Magistrate, Esplanade which was allowed on the same day. 5.2 During the hospitalization from 29.08.2022 to 30.08.2022, total 87 oval-shaped capsules were ejected by the applicant through rectum, naturally. On 01.09 2022, at 03:00 p.m. Shri Deepak Kumar, ACO called two panchas in Ward No.18, informed them the aforesaid facts and, in their presence and the applicant, Shri Deepak Kumar took the said capsules in his charge. Further, in the hospital itself, one capsule was cut opened in the presence of the panchas, duty doctor and the applicant. It found to contain off-white powder in pellet form. The remaining capsules were then cut opened which also found containing similar substance. The substance in all the capsules was mixed as it was homogenous in nature and, kept in two transparent plastic packets marked "H". Thereafter, little quantity of the mixed powder was tested with DDK. The test revealed that the retrieved powder substance was Cocaine, cumulativ....
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....tted Officer. The applicant consented to be searched in the presence of Shri Manish Kumar, the Gazetted Officer. Further, Shri Sanjeev Kumar, Intel. Officer, served Notice to the applicant under Section 50 of the NDPS Act. Said notice reads : "Whereas there is reason to believe that some Narcotic substance, covered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 are in your possession, and therefore, your personal search is to be conducted. You are hereby informed that under the provisions of section 50 of the NDPS Act,1985, you have a legal right to be searched in presence of a Magistrate or a Gazetted officer. It is hereby further informed that Shri Manish Kumar is a Gazetted Officer" sign (Eng) (Sanjeev Kumar) Intel. Officer As a reply to the notice, the applicant stated that:- I have been informed and have understood the notice of personal search under Section 50 of the NDPS Act. I hereby give my consent for carrying out my personal search in the presence of a Gazetted Officer. sign (Eng) Brandon Sulpisious Migadde 6.1 The applicant was then taken by Sanjeev Kumar before said Manish Kumar, in the adjacent roo....
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....e the ld. Metropolitan Magistrate, 64th Court, Esplanade. The seized contraband was weighed, two samples of 5 grams each were drawn and sealed as 'A1-Original' and 'A1-Duplicate', and an Inventory Panchanama was drawn. Sample 'A1-Original' was sent to the CRCL, New Delhi, and the test report dated 20.09.2022 confirmed the presence of the Cocaine. Investigation culminated into filing of the complaint before the NDPS Special Court. BAIL APPLICATION NO. 436 OF 2025 7. On 20.06.2023, specific intelligence was received that one person, i.e., applicant - Avaligbe Norbert Michel Semevo, a Beninese national holding Passport No.21PP36629, travelling from Cotonou via Addis Ababa by Ethiopian Airlines Flight ET640, has concealed narcotics in his body and, would land at CSMI Airport, Mumbai on 21.06.2023, at about 0200 hrs. Said information was recorded and forwarded to the superior. Further, acting thereon, the DRI team intercepted the applicant at CSMI Airport, at about 0330 hrs, on 21.06.2023, in the presence of independent panchas and, took him to the AIU office for examination. There, the officer informed the applicant that they intend to carry out his personal search under the prov....
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....hich were handed over by the hospital to DRI officers in a sealed steel box, in the presence of independent panchas, a French translator and, the hospital RMO. 7.4 The box was opened at J.J. Hospital on 30.06.2023, in the presence of panchas, Dr. Rajput, Dr. Janak and Mr. Jayprakash, Sr. Intel. Officer. All 43 capsules, on being cut opened one by one, were found to contain light brown coloured sticky substance. On taking a pinch from each of the recovered light brown coloured substance and testing them individually with DFTK, each of the test conducted showed positive for presence of Heroin. All the capsules were containing similar light brown coloured sticky substance and had same pungent smell, Therefore the substance was mixed thoroughly and kept in a transparent plastic. It weighed 504 grams net and, was seized under panchanama dated 30.06.2023 along with the capsules' packaging material. 7.5 The applicant was summoned and his statement u/S.67 NDPS Act, recorded on 30.06.2023 in presence of the French translator, revealed that he was in the business of electronic-appliance trading in Cotonou and was introduced to drug trafficking by one Abraham, from whom he had purchased....
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....ore, your personal search is to be conducted by the undersigned. If you so require, such search will be conducted in presence of the nearest Gazetted Officer or Magistrate." Sign(Eng) Ashalata Suvama Air Custom Superintendent 8.1 The applicant received and acknowledged the notice and responded as under :- "I have been informed and have understood the Notice of Personal search under Section 50 of the NDPS Act, 1985. I do require that my personal search may be conducted in presence of the nearest Gazetted Officer." Name of the passenger: Ms. Halima Naiga (Sign. Eng) 8.2 On an application made by AIU officers, the ld. Additional Chief Metropolitan Magistrate, Holiday Court, Esplanade, granted permission u/S.103 of Customs Act vide Order dated 24.07.2022 for applicant's medical examination and detention at J.J. Hospital, to facilitate purging of ingested capsules. During hospitalisation from 24th to 26th July, 2022, the applicant ejected a total of 74 oval-shaped capsules naturally, through her rectum. 8.3 The 74 capsules were handed over by the hospital to Customs officers in a metal container secured with a lock, in the presence of i....
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....was filed before the Special Court. Submissions and analysis : 9. In BA/1832, BA/4341 and BA/1221, the learned Advocates Mr. Parmar and Ms. Achari respectively, have submitted that there is non-compliance of Section 42 of NDPS Act and, on this ground these applicants are entitled for bail. To clarify and countenance this assertion, firstly they have pointed that in the panchanama as well as the complaint it has been recorded that on the basis of intelligence, the Customs Officers had reasonably doubted that these applicants might have concealed some contraband in their body. However, considering the facts of the case, in my view, mere use of the word "intelligence" as above, is not sufficient to hold that this is a case of non-compliance with Section 42. Because, "intelligence" is the broad mental capacity to learn from experience, reason, solve problems, think abstractly and, adapt to new or changing environment. It allows living things and systems to use knowledge to understand their surroundings and act effectively. These are core mental skills. Common synonym for "intelligence" include intellect, cleverness, brilliance, brainpower and smarts. Because "intelligence" has....
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.... is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. Sub-Section (2) states that, where an officer takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 10.3 Section 43 reads as under :- 43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in Section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an off....
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....l, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case." 10.5 In BA/3390, BA/5169 and BA/436, record indicate that the Secret information received by the DRI was properly recorded and forwarded to the superior. Further, said superior officer gave the authorisation to the officer concerned and instructions to constitute a team and take immediate steps under the NDPS Act. Record also shows that, after carrying out the search and seizure action, the report required u/S. 57 of NDPS Act was also conveyed to the superior officer of the DRI. 10.6 That apart, admittedly, the search and seizure action was initiated at the airport which is a public place. Since, it was impossible to complete that action at the airport without medical help, the applicants were taken to the Government hospital, which qualifies as a "public place". There, that action was finally completed after ejecting of the capsules. Thus, there was no break in the chain of the search and seizure action initiated at one public place and completed at the another. Therefore, in my opini....
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....was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party. The appellant was informed about the reasons for his detention and the identities of the raiding party were disclosed to him. A jute bag recovered from the appellant when searched, it found containing charas weighing 1.5 kilograms. In this background, in paragraph 13, the Hon'ble Supreme Court held that, the appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase "public place" in the Explanation to Section 43. Therefore, Section 42 had no application. Same is recently held by the Hon'ble Supreme Court in Firdoskhan Khurshidkhan v. State of Gujarat reported in 2024 SCC OnLine SC 680. Therein, acting on secret information, the accused were apprehended at the ST Bus Stand, a public place, when they had arrived there to deliver the illicit substance. Same view is taken in Konan Jacques Yao v. DRI (B.A.No.3917/2025 Delhi HC). 11. The se....
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....law to be searched so. What PW 1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with. 7. We, therefore, hold that there was non-compliance with Section 50 of the Act and consequently the evidence of search spoken to by PW 1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article." 12. The second challenge posed to Section 50 notice in BA/1832 is that, the response of the applicant to that notice was not recorded. In this regard I have noticed that, as asserted in the complaint, the applicant had acknowledged the receipt of the notice with his signature and responded that, he was ready to be searched before a Gazetted Officer. However, the said response was neither recorded on the notice itself nor separately. The notice only bears the s....
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.... years back in Mohamed Rashid Mohamedi v. V.M. Dosi, I.O., NCB, reported in 2000 SCC OnLine Bom 995. 12.3 Nevertheless, the seizure of the capsules containing the contraband from the possession of the applicant cannot be denied. Because, the applicant had ejected the same after he was referred for the medical and within two days from his hospitalisation under the Court's Order. The officer of the customs had no reason to foist the capsules on him. The presence of the medicine "Antinal" with this applicant indicates that he wanted to prevent the capsules from being purged without his will and before time. This fact is well recorded in the Order of the ld. Magistrate thereby referring him for medical u/S.103 Customs Act, which is an independent provision. In K. Mohanan (Supra) there was non-compliance with Section 50 of NDPS Act. Consequently it is held that the evidence of search spoken to by PW 1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article. In my view, these observations indicate that if there is other independent evidence to prove possession of the contraband substance, it may be re....
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....ccused were discouraged in opting for search by independent authority. The possibility of misleading the accused also cannot be ruled out in this regard." Same has been enunciated in Ranjan Kumar Chadha v. State of H.P. reported in 2023 SCC OnLine SC 1262 in paragraph 66 (iv) that, "While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party." 13.2 However, the seizure of the capsules containing the contraband from the possession of this applicant cannot be denied. Because, the applicant had ejected the same after he was referred for the medical examination pursuant to the Order from the ld. Magistrate. The officer of the customs had no reason to falsely implicate the applicant by foisting the capsules on him. Therefore, the view taken in the forgoing paragraph 12.3 on the basis of the case of K. Mohanan (Supra) may be applicable to BA/5169. 14. In BA/1832, BA/4341, BA/5169, BA/436 and BA/1221, it is submitted that the notices u/S. 50 NDPS Act do not bear signature of the panchas. Therefore, the search and seizure is doubtful. To st....
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....ingh, reported in (1994) 3 SCC 299, therein the Hon'ble Supreme Court had observed as under: "6. At this juncture we may also dispose of one of the contentions that failure to comply with the provisions of CrPC in respect of search and seizure even up to that stage would also vitiate the trial. This aspect has been considered in a number of cases and it has been held that the violation of the provisions particularly that of Sections 100, 102, 103 or 165 CrPC strictly per se does not vitiate the prosecution case. If there is such violation, what the courts have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record. Under Section 100 CrPC the officer conducting search under a warrant should call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search..... Section 165(4) lay....
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....16. The learned Advocates for the applicants submitted that, on each occasion of purging, notice of Section 50 NDPS Act was necessary. To buttress this submission, they have relied upon the decision in Ahmed Adeyinka Adebayo v. Narcotics Control Bureau, reported in 2005 SCC OnLine Bom 1781. However, as held by the Division Bench of this Court in Shaikh Salauddin Ibrahim (Supra), once the accused was informed at the airport of his right u/S. 50, it is not necessary to inform him at every subsequent stage of that right. 17. In BA/3390, after serving the proper notice of Section 50, Mr. V. Sunil Kumar conducted the personal search of the applicant and his baggage, but, it yielded nothing incriminating. Therefore, Mr. V. Sunil Kumar stopped the search proceedings and left. Thereafter, the DRI Officers asked the applicant whether he was carrying contraband concealed in his body. He replied that he had ingested some narcotic substance in form of capsule. Further, the applicant had voluntarily submitted himself for suitable action being taken for bringing out such goods. These fact are recorded in the panchanama, the Order of the ld. Magistrate dated 28.03.2024 and, the statement of th....
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....n that Act or in this section shall prevent the offender from being punished under this Act." 17.3 Admittedly, the said DRI Officers were proper officer as defined in the Customs Act. Section 100 Customs Act provides for power to search suspected persons entering or leaving India, etc. Section 103 thereof provides for power to screen or X-ray bodies of suspected persons for detecting secreted goods. Said Sections 100 and 103 read : 100. Power to search suspected persons entering or leaving India, etc.-(1) If the proper officer has reason to believe that any person to whom this section applies has secreted about his person, any goods liable to confiscation or any documents relating thereto, he may search that person. (2) This section applies to the following persons, namely- (a) any person who has landed from or is about to board or is on board any vessel within the Indian customs waters; (b) any person who has landed from or is about to board, or is on board a foreign-going aircraft; (c) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India; ....
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...., the magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction: Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner. (7) Where any person is brought before a magistrate under this section, such magistrate may for the purpose of enforcing the provisions of this section order such person to be kept in such custody and for such period as he may direct. (8) Nothing in this section shall apply to any person referred to in sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods. Explanation.-For the purposes of this section, the expression "registered medical practitioner" means any person who holds a qualification granted by an authority specified in the Schedule to....
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....ves for suitable action being taken for bringing out the contraband substance, therefore, there was no need of fresh notice of Section 50 of NDPS Act to the applicants for their search either before a nearest Gazetted Officer or Magistrate as sub-Section (8) of Section 103 Customs Act is clearly applicable in these cases in view of Section 79 of NDPS Act and as no provision similar to Section 103 of Customs Act is made available in the NDPS Act. In the result, I conclude that non-giving of fresh notice of Section 50 to the applicant in BA/3390 after Mr. V. Sunil Kumar left and before subjecting the applicants in BA/3390 and BA/436 to the procedure under Section 103 (8) Customs Act is not fatal and sufficient, to hold that the said search is vitiated. Secondly, there is nothing on record indicating that the contraband substance was foisted on these applicants. Thus, I hold that there is a prima facie case against the applicants of smuggling the illicit contraband. 18. In BA/4341, after serving the notice issued u/S. 50 of NDPS Act to the applicant on 28.08.2022, when he was being questioned and interrogated, the applicant allegedly admitted that he had ingested drugs in his body ....
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....cle or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Cr.P.C. In BA/4341 and BA/1221, the complaint, panchanamas and statements of these applicants recorded that the applicants had stomach-ache and were feeling very uneasy and unwell respectively and therefore requested for medical help. In BA/4341, total 87 capsules weighing 1487.50 grams and in BA/1221 total 74 such capsules weighing 800 grams were carried in the stomach during a long journey. Therefore, the possibility cannot be ruled out that since these applicants experienced stomach-ache and were feeling very uneasy and unwell, therefore, they had requested for immediate medical assistance. This view is supported by the fact that in BA/1221 the doctor from the medical department of the airport had examined the applicant and advised for specialist opinion at higher care for further evaluation. Therefore, the conclusion in the forgoing paragraphs 17.4 and 17.5 is applicable to these cases. 18.3 Here it may be noted that, in sub-Section (6) of Section 103 Customs Act, there are three categories when the Magistr....
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.... Rules 3 and 10 of (Seizure, Storage, Sampling and Disposal) Rules, 2022 ("NDPS-SSSD Rules"). and with Section 52-A of NDPS Act. The crime in BA/1832, BA/5169, BA/4341 and BA/1221 were registered in 2022 when the standing Orders were in force. Whereas, the crime in BA/3390 and BA/436 were registered after the NDPS-SSSD Rules came into force on 23rd December 2022. 19.1 The learned Advocates for the applicants submitted that in BA/4341 and BA/5169, firstly, all the capsules were cut opened; the substance therein was collected in one packet; and, pinch of that substance was then tested with drug detection kit (DDK), sealed and finally, seized. 19.2 Whereas, in BA/1832 and BA/1221, the contraband substance from only one capsule was tested with the DDK. Then the remaining capsules were cut-opened. Lastly, the substance in all the capsules was thoroughly mixed and, the said contraband substance in pellet form was collected in one packet and seized. 19.3 In BA/3390 and BA/436, the contraband substance in each of the ejected capsules was individually tested with the DIK and the result confirmed that it was heroin/cocaine. The substance in all the capsules in pellet form was then m....
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....he spot. 1.6 Quantity of different drugs required in the sample.-The Quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. 1.7 Number of samples to be drawn in each seizure case.- (a) In the case of seizure of single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. (b) However, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots....
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....se of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be drawn. 2.7 If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one m....
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....er are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn: Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers. (3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 22. The framework of Section 52-A NDPS Act, the S.I.-1/88, S.O.-1/89 and the NDPS-SSSD Rules has been incorporated so as to provide a mechanism for seizure and sampling as well as safe and proper disposal of the seized contraband and narcotic substance, giving due regard to but not limited to factors such as the hazardous nature, vulnerability ....
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....ection 52-A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act." (Emphasis underlined) 23. In the case of Amani Fidel Chris v. Narcotics Control Bureau, reported in 2020 SCC OnLine Del 2080, cited by the learned Advocates, the accused was carrying one stroller bag of blue colour, one black colour pitthu bag and one laptop bag with laptop. Sh. G.S. Bhinder, IO firstly took the search of the stroller bag and, it was found containing four brown carton boxes and other articles. On opening of the brown carton boxes, each cartoon was found containing one door spring machine. When the said machines were opened, the cavity in each of the spring machine was found stuffed with one brown colour packet, i.e., 4 packets in total. On further opening each of the packets, powdery substance was recovered which, on testing with the help of field testing kit, gave positive result for Heroin. The total substance recovered from all the machin....
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....he wax from each of the soaps and testing the alleged contraband found inside each of the soap. The test results were in the affirmative. Thereafter, as stated in the seizure panchnama, the officers of the prosecution broke the said 12 soaps into a powder, mixed them and thereafter sealed the same in accordance with law. Similar exercise was undertaken with respect to the other 4 soaps found in the second packet also. Considering these facts juxtapose to Rules 3 and 10 of the NDPS-SSSD Rules, the learned Single Judge of this Court held that the investigating Officer is not empowered to mix the seized contraband at the outset as the Rules do not provide for the same. Rather, Rule 3 of the said Rules categorically envisages a procedure for seizure of contraband from various packets/containers when seized as also drawing of samples from each of the seized packet in accordance with law. The same procedure is adopted under Rule 10 0f the NDPS-SSSD Rules. If the investigating Officer does not follow the Rules it is a sufficient ground to arouse suspicion about the veracity of the prosecution case. Therefore, the accused was directed to be released on bail. When this decision was assai....
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....ra (BA/157 of 2023 [Bom]), Imran Mohamed Sharif Khan V/s. The State of Maharashtra (BA/86 of 2023 [Bom]), and Anand Laxman Tarde V/s. The State of Maharashtra, (BA/3125 of 2023 [Bom]). The learned Single Judge also adverted to the decisions in Union of India V/s. Bal Mukund and Ors., reported in [(2009) 12 SCC 161], Sumit Tomar v. State of Punjab, reported in (2013) 1 SCC 395, Kashif (Supra) and Amani Fidel Chris (Supra). 24.2 As regards the S.I.-1/88 and the S.O.-1/89, the learned Single Judge in paragraph 23 observed and held that, "23. Perusal of the aforesaid Standing Instruction No. 1/88 and Standing Order No. 1/89 would make it abundantly clear that in case of seizure of the single package/container, one sample in duplicate shall be drawn. It is further provided, normally it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container, (sub-clause-a : Standing Instructions No. 1/88 and sub-Clause - 2.4 : Standing Order No. 1/89). However, where a number of packages/containers are seized together, subject to the satisfaction that the packages are identical in all respect, packages/containers may be....
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....ppellant. We are unable to accept the said contention. 12. It is true that Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub-section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Merely because different punishments have been prescribed depending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 gm each, the quantity measured comes to 69.50 kg which is mo....
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....different fact situation. Clause 2.4 of the Standing Order No. 1/89 referred to in paragraph no.10 of Laxman Thakur (Supra), was not considered by the Supreme Court in case of Bal Mukund (supra). On the contrary, the Supreme Court had considered sub-clause (e) of Clause 1.7 of the Standing Instruction No.1/88 and it was on account of the inadequacy of the content of each of the bags the representative sample so collected was held to be in breach of the Standing Instruction. 28. What should be the approach of the Court? There can be no duality of opinion about the proposition that having regard to the stringent provisions against grant of bail and the severity of the punishment which the offences under NDPS Act,1985 entail, the Court must insist scrupulous compliance of the Standing Instruction/Order. However, the nature of infraction is required to be kept in view and also the element of prejudice likely to have caused to the accused. Undoubtedly the officers are instructed that one sample from each package/container in case of seizure of more than one package/container be collected. However, the directive is preceded by the word "normally" and it is "advisable" These word....
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.... 34. As noted above, sub-clause (b) and (e) of the Standing Instructions 1/88 and sub-clauses 2.5 and 2.8 of the Standing Order 1/89 envisage bunching of packets/containers in lots and thereafter, drawing of representative sample from each packet/container of that lot and mixing together to make a composite whole from which the samples are drawn for that lot. However, the principal condition is that the officer effecting the seizure must find that the packets/containers seized together are of identical size and weight bearing identical marking and contents of each packet give identical results on colour test by drug identification kit, and, thus, conclusively indicate that the packages are identical in all respects. 35. Evidently, the underlying object of the Instructions is to ensure that the sample which is collected represents the bulk, unmistakably. Invariably, in pursuance of the provisions of the Act, and the Drug Disposal Rules, the bulk is disposed. When a person is sought to be fastened with liability for possessing a particular quantity of contraband, in bulk, on the basis of the sample collected, the Court ought to have the assurance that the sample so ....
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....l mixed to make it homogeneous and representative before the sample in duplicate is drawn. Para 1.7, Clause (b) of the S.I.-1/88 : para 2.5 in the S.O.-1/89 provides that, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. (Emphasis in bold) Para 1.7, Clause (e) of the S.I.-1/88 : para 2.8 in the S.O.-1/89 provides that, while drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 27.2 In the cases in hand, the capsules were swallowed and ingested as a single batch, by a single ....
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.... in all the six Bail Applications was done in the presence of the panchas and the respective applicants. In certain cases even the doctors concerned were present during the said process. There is nothing on record indicating that during the process of seizure and sealing, the physical properties of the contraband substance in all these cases were interfered with or adulterated in any manner by the AIU/DRI Officers. All relevant details have been well recorded in the respective panchanamas. The applicants in these cases have not shown that the aforesaid procedure of seizure of the contraband caused them any prejudice. The Report of C.A. clearly recorded that the substance found in the capsules was Heroin/Cocaine etc., as the case may be. Although in Augestin Sunderraj Nadar (Supra) the decision in Amani Fidel Chris (Supra) is followed, the question of law in in Amani Fidel Chris (Supra) is still open. Therefore, in the light of the distinct and peculiar facts of the cases in hand, considering the law enunciated in case of Kashif (Supra), Sumit Tomar (Supra) and the observations in paragraph 28 in Venktesh (Supra), I am of a prima facie view that, not preparing of lots of the caps....
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....the conscious possession of the applicant is of commercial quantity. In BA/436, the contraband found in possession of the applicant was Heroin, Caffeine and Dextromethorphan. However, looking at the facts of this case and, the mind altering properties of Dextromethorphan, in my view, without hearing the evidence of the Chemical Analyser as to the cumulative effect of the three drugs on one's mind, it is difficult to say that the contraband found in possession of this applicant is not a commercial quantity. As a result, I hold that there is a prima facie case against these applicants of having committed the present offence. Consequently, the rigours of Section 37 NDPS Act are attracted with full force. As a result, these applicants are not entitled for bail. 30. In BA/1832 the notices under Section 50 NDPS Act failed to communicate the relevant right to the applicants. In this case, the search of the applicant was conducted by Shri Deshmukh, ACS, but, he was not an independent Gazetted Officer. Therefore, it may be said that the search action by Shri Deshmukh is vitiated. However, there is nothing to doubt the process which led to ejection of the capsules containing contraband by....
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....d under Section 103 of the Customs Act. Therefore, it is a question of trial as to whether the effect of the insufficient or defective notice under Section 50 (1) of NDPS Act in BA/4341 has stopped to continue and, whether similar notice in BA/1221 was of no consequence, or not. Consequently and, without full-fledged trial, the action of taking these applicants directly to the hospital may not be said to be arbitrary and violative of the provisions of NDPS Act and Customs Act. Thus, in my considered view, these cases are covered by sub-Sections (6) and (8) of Section 103 Customs Act. 33. Be that as it may. In BA/1832, BA/5169, BA/4341 and BA/1221, the applicants are in jail for more than four years. The trials against them have not sufficiently advanced. In the absence of such advancement, the detention of the applicants in jail is turning punitive. Such a situation of an under-trial runs counter to the presumption of his innocence and right to speedy trial guaranteed under Article 21 of the Constitution of India. Therefore, and having regard to the overall facts and circumstances of the case, in these four cases, the applicants may be released on bail, but, subject to stringent....
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.... High Court emphasised the detrimental impact on the trust and confidence in India. However, those accused who are bringing illicit narcotic and psychotropic contraband substance from other countries to India, for them, it is only a matter of making money, but, directly impacting on social fabric and future of our country. Therefore, while investigating such cases of smuggling, transporting, carrying narcotic and psychotropic substances to India by any person including foreigners, it should be ensured that since inception, such cases are procedural compliant. This is in the interest of both, the accused and the society. Otherwise, its deleterious impact on the society will never be checked. Therefore, the Chief Commissioner Of Customs and the DRI concerned shall take a note of these cases and do needful. 35. Now, I proceed to pass following Order:- (a) Bail Application No.3390 of 2025 and Bail Application No.436 of 2025 are rejected. (b) B.A. No.1832 of 2025, B. A. No.4341 of 2025, Bail Application No.5169 of 2024 and Bail Application No.1221 of 2025 are allowed:- (i) Applicants - (1) Ronald Barisigara, (2) Raymond Anane Kyeremateng, (3) Brandon Sulpis....