The Bombay High Court has granted bail to four people accused in separate airport drug smuggling cases, holding that their detention of more than four years, while their trials had made insufficient progress, was becoming punitive.
The bench of Justice Shyam C. Chandak declined to decide disputed questions about sampling, inventory certification and possible breaches of NDPS procedures at the bail stage. It said those matters required examination of the evidence during trial.
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The cases arose from separate Customs Air Intelligence Unit and Directorate of Revenue Intelligence (DRI) investigations involving allegations that passengers arriving in Mumbai had concealed narcotic substances inside their bodies.
According to the prosecution, Customs officers intercepted Barisigara at Mumbai airport on April 6, 2022, after he arrived from Entebbe via Sharjah. A search of his person found nothing incriminating. Officers then suspected that he had concealed narcotics inside his body and obtained a magistrate’s permission for medical examination under Section 103 of the Customs Act.
The prosecution alleged that, during his hospitalisation, Barisigara expelled 95 capsules over two days. Officers subsequently seized and opened them, recovering powder weighing 1,235 grams that a field test indicated was heroin. A later laboratory report also confirmed the presence of heroin.
These are prosecution allegations; the High Court was deciding bail, not whether Barisigara was guilty.
A central issue across the six applications was whether officers had properly informed the applicants of their right under Section 50 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act to be searched before a gazetted officer or magistrate.
The Court found that the Section 50 notice in Barisigara’s case failed to communicate the relevant right properly. It also observed that the Customs officer who conducted his initial search was not an independent gazetted officer. The Court said that this could vitiate that search.
That finding did not, however, end the bail inquiry. The Court found no reason, at this stage, to doubt the separate process through which the capsules were expelled and seized following the magistrate’s order under Section 103 of the Customs Act. It held that a prima facie case involving a commercial quantity remained against Barisigara, bringing the stringent bail restrictions in Section 37 of the NDPS Act into play.
The Court also identified defective Section 50 notices in other cases. It cautioned that, despite the law on informing a person of this right being settled for decades, the notices were proper in only two of the six matters before it. It asked the Chief Commissioner of Customs and the DRI concerned to take note of the procedural shortcomings.
The decisive consideration for four applicants was the length of their custody and the pace of trial. Barisigara, Kyeremateng, Migadde and Naiga had each spent more than four years in jail, and their trials had not advanced sufficiently.
The Court held that continued detention in those circumstances was turning punitive and ran counter to the presumption of innocence and the right to a speedy trial under Article 21 of the Constitution. It therefore granted them bail despite finding that the alleged offences and the prosecution material required serious consideration at trial.
Each of the four successful applicants must furnish a personal bond of ₹2.5 lakh with two or more sureties for the like amount. They must report to the investigating officer in Mumbai on the 1st and 16th of every month until the trial concludes, attend court, avoid influencing witnesses or tampering with evidence, and surrender their passport and visa documents. The order also requires them to update their travel documents for lawful stay in India and cooperate with registration at the Foreigners Regional Registration Office.
The Court rejected Bundu’s and Semevo’s bail applications. It found, at this stage, that the Section 50 notices in their cases were proper and that the material disclosed a prima facie case attracting the restrictions under Section 37 of the NDPS Act. It also held that prolonged incarceration did not entitle them to bail on the facts before it.
The High Court expressly clarified that its observations were made only to decide the bail applications and must not influence the outcome of the trials.
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