Ms. Aisha Nduwimana vs. The Superintendent Of Customs

Held

The Court held that the contraband seized from the petitioner amounted to a commercial quantity of heroin, necessitating an examination of bail entitlement under the rigour of Section 37 of the NDPS Act. The Court found that the petitioner's own statement under Section 67 of the NDPS Act revealed she had agreed to transport the contraband for monetary consideration, establishing a culpable mental state. While the petitioner relied on Tofan Singh v. State of Tamil Nadu regarding the inadmissibility of Section 67 statements, the Court noted that subsequent judgments, including NCB v. Mohit Aggarwal and Union of India v. Shanker Kesaril, held that the admissibility of such statements is a matter for trial, and they cannot be discarded outright at the bail stage. Regarding Section 50, the Court referred to State of Kerala v. Prabhul and Sura v. State of Gujarat, holding that Section 50 applies only to personal search and not to baggage. The Court reiterated that absence of antecedents, prolonged custody, or humanitarian considerations cannot override the statutory bar under Section 37. The expression "reasonable grounds" under Section 37 requires more than prima facie satisfaction and contemplates substantial probable cause. Given the recovery of a huge commercial quantity of heroin from the petitioner's baggage, the Court was not satisfied that there were reasonable grounds to believe the petitioner was not guilty or unlikely to commit an offence while on bail. Therefore, the Criminal Petition was dismissed. However, the trial Court was directed to expedite the proceedings and dispose of the case at the earliest, keeping in view Section 36A of the NDPS Act.

Facts

The petitioner, Ms. Aisha Ndunimana, a citizen of Burundi, was apprehended at Rajiv Gandhi International Airport on July 2, 2023, with 2027 grams of heroin concealed in her luggage. The Superintendent of Customs, Customs Commissionerate, Hyderabad, is the respondent. The petitioner claims ignorance of the contraband and absence of mens rea. She alleges procedural lapses during search and seizure, including non-compliance with Sections 50 and 42 of the NDPS Act, and argues that any statement recorded under Section 67 is inadmissible. The petitioner also highlights defects in the panchanama and documentation. She is a single mother with dependent children and has no prior criminal record. The investigation is substantially complete with the filing of a charge sheet.

Key Issues

1. Whether the search and seizure conducted by the Customs officers were vitiated by procedural lapses, specifically non-compliance with Section 50 and Section 42 of the NDPS Act, rendering the evidence inadmissible? 2. Whether the statement recorded under Section 67 of the NDPS Act is admissible in light of the Supreme Court's ruling in Tofan Singh v. State of Tamil Nadu, and if so, whether it establishes culpable mental state? 3. Whether the petitioner, a foreign national with no prior criminal record and facing allegations involving a commercial quantity of heroin, is entitled to bail under Section 37 of the NDPS Act, considering the alleged procedural violations and humanitarian grounds? Petitioner's arguments: The search and seizure were vitiated by non-compliance with Section 50 (right to be searched before a magistrate or Gazetted Officer) and Section 42 (prior written authorization for searches). Statements under Section 67 are inadmissible per Tofan Singh unless corroborated. The seized quantity, while commercial, does not imply knowledge or intent to traffic, possibly due to coercion. There are defects in the panchanama and documentation. Humanitarian grounds (single mother, hardship) and lack of antecedents should be considered. Section 37 should not be rigidly applied due to absence of intent, knowledge, or conspiracy. Respondent's arguments: The petitioner was apprehended with a commercial quantity of heroin. Her statement under Section 67 revealed collusion and agreement to transport narcotics for monetary consideration, establishing culpable mental state. Search and seizure complied with Section 50 (presence of Gazetted Officer and witnesses) and Section 42 (Customs officers empowered to search without warrant). The contraband was inventorised under Section 52A, samples drawn before the Magistrate, and reports confirmed heroin. As a foreign national, she is a flight risk. Section 37's stringent conditions for commercial quantities must be satisfied, which the petitioner fails to do.