The Bombay High Court has granted bail to a Ugandan national accused of smuggling narcotic drugs concealed in 91 swallowed capsules, holding that his continued detention for more than four years without progress in the trial was turning punitive.
The bench of Justice Shyam C. Chandak observed that prolonged incarceration of an undertrial, without advancement of the trial, undermines the presumption of innocence and the right to life and personal liberty guaranteed under Article 21 of the Constitution.
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Although the Court found a prima facie case against the applicant and noted that the alleged contraband was of commercial quantity, it held that his conditional liberty must take precedence over the restrictions on bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court imposed conditions, including a personal bond of ₹2 lakh with two or more sureties, twice-monthly reporting to the Directorate of Revenue Intelligence (DRI), surrender of travel documents and cooperation with the Foreigners Regional Registration Office (FRRO).
Interception at Mumbai Airport
According to the prosecution, officers of the Air Intelligence Unit (AIU) at Mumbai’s Chhatrapati Shivaji Maharaj International Airport received specific intelligence that a passenger arriving from Kenya on July 17, 2022, was suspected of carrying drugs inside his body.
The passenger’s handbag passed through the baggage scanner without anything suspicious being detected. AIU officers intercepted him at the green channel and checked his travel documents, which allegedly matched the intelligence received.
The officers issued a notice under Section 50 of the NDPS Act concerning his personal search. The passenger requested that the search be conducted in the presence of the nearest gazetted officer. Nothing incriminating was found during the personal search.
The prosecution stated that, when questioned, the passenger disclosed that he had swallowed capsules containing narcotic substances and was suffering from severe stomach pain. Officers took him to Sir J.J. Hospital in Mumbai for medical supervision. An application was also made before a magistrate under Section 103 of the Customs Act, 1962.
Recovery of 91 Capsules and Laboratory Findings
According to the hospital records referred to in the order, the passenger naturally expelled 91 capsules between July 17 and July 19, 2022.
The prosecution said that the capsules were handed over to an AIU officer at the hospital in the presence of independent witnesses and the applicant. One capsule was opened and its contents were tested using a field drug detection kit, which indicated the presence of methaqualone.
The remaining capsules were opened individually, following which the contents of all 91 capsules were combined. The combined powder weighed 1,101.8 grams gross, including a 12-gram pouch, according to the order. A further field test of the combined substance also indicated methaqualone.
However, the laboratory report dated September 9, 2022, did not confirm methaqualone. Instead, the sample tested positive for cocaine, heroin, codeine, morphine and caffeine.
The applicant was arrested on July 20, 2022. A complaint was subsequently filed under Section 8(c), read with Sections 21(c), 22(c), 23 and 28 of the NDPS Act.
Defence Raises Search and Sampling Violations
Seeking bail, the applicant argued that the authorities had failed to comply with mandatory provisions governing the recording and communication of secret information under Section 42 of the NDPS Act.
He also challenged the Section 50 notice, arguing that he had not been properly informed of his legal right to be searched before a gazetted officer or magistrate. The defence further contended that Section 103 of the Customs Act had not been complied with because he was not physically produced before the magistrate.
The applicant also questioned the seizure and sampling process. His counsel argued that the contents of the capsules were mixed without each capsule being individually tested and sampled, contrary to Section 52A of the NDPS Act and the applicable standing instructions and standing order.
The defence pointed to the difference between the field test and laboratory results, as well as a delay of approximately 50 days in the inventory process. It also relied on the applicant’s imprisonment for more than four years.
The Union of India opposed bail, maintaining that the authorities had acted in response to a medical emergency and that the recovery involved commercial quantity. It argued that any lapse or delay in compliance with Section 52A would not, by itself, justify bail.
Airport Search Governed by Section 43, Court Says
The High Court rejected the argument based on non-compliance with Section 42 of the NDPS Act. It held that Section 42 did not apply to a search conducted in a public place such as an airport.
Relying on the Supreme Court’s decision in Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence, the Court said that a search and seizure at an airport would be governed by Section 43 of the NDPS Act.
Defective Section 50 Notice and Medical Emergency
The Court agreed with the applicant that the Section 50 notice had not properly communicated his right to be searched before a gazetted officer or magistrate. The notice had only stated that such a search would be conducted if he required it.
Referring to the Supreme Court’s decision in K. Mohanan v. State of Kerala, Justice Chandak observed that merely asking a person whether they require a search before a gazetted officer or magistrate cannot be treated as informing them of their legal right.
The Court then considered the separate recovery of capsules from inside the applicant’s body. It noted the prosecution case that the applicant had disclosed the ingestion of capsules, was experiencing a medical emergency and voluntarily submitted to the action required to bring them out.
The judge considered Section 103 of the Customs Act, which deals with goods suspected to be concealed inside a person’s body. On the facts before it, the Court held that the recovery was covered by subsections (6) and (8) of Section 103. It also noted the magistrate’s order, hospital records and the presence of witnesses, an AIU officer, the applicant and a doctor during the recovery proceedings.
The Court viewed that material as potential independent evidence of possession. It said the effect of the Section 50 issue, and whether the action taken complied with the relevant provisions, would have to be considered at trial.
Mixing of Capsule Contents and Delay in Inventory
The High Court recorded that the contents of the capsules had been combined without individual testing and separate sampling of each capsule. It noted the defence contention that this violated Section 52A and the applicable standing instructions and order.
The Court also took note of the difference between the initial field test and the laboratory report, and the delay in the inventory process.
At the same time, relying on Supreme Court decisions including Narcotics Control Bureau v. Kashif, the Court said that a lapse or delay in compliance with Section 52A would not automatically invalidate a trial or entitle an accused person to bail. Other circumstances and evidence must also be considered.
The prosecution, the Court said, should have an opportunity at trial to explain why certain steps were not followed and how the process had not prejudiced the applicant. The judge considered it premature to finally determine the alleged sampling violations at the bail stage.
Prolonged Detention Outweighs Bail Restrictions
Despite finding a prima facie case of smuggling, the Court placed weight on the applicant’s detention for more than four years and the absence of progress in the trial.
Justice Chandak held that continued imprisonment in those circumstances was turning punitive and making the presumption of innocence meaningless. The Court therefore granted conditional bail, holding that the applicant’s liberty must take precedence over the statutory restrictions under Section 37 of the NDPS Act.
Bail Conditions
The applicant must furnish a personal recognisance bond of ₹2 lakh with two or more sureties for the like amount. The Court directed that the genuineness of the sureties be verified and that they be subjected to lien in accordance with the Supreme Court decision cited in the order.
He must report to the DRI office at New Marine Lines, Mumbai, on the 1st and 16th of every month between 11 a.m. and 2 p.m. until the trial concludes. He must also attend court proceedings unless exempted, refrain from influencing witnesses or tampering with evidence, and provide his contact details and residential address to the investigating officer.
Before release, the applicant must update his travel documents for lawful stay in India and cooperate with registration at the FRRO, Mumbai. He must surrender his passport and visa documents to the AIU.
The Court clarified that its observations were made for deciding the bail application and should not influence the trial or be treated as a final opinion on the merits.
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