Mr. Shebe Shebe Amerani 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, 1985. The Court found that while the petitioner contended lack of conscious possession, her statement recorded under Section 67 of the NDPS Act revealed an agreement to transport the contraband for monetary consideration and an admission of carrying capsules containing heroin. The Court noted that while the petitioner relied on Tofan Singh v. State of Tamil Nadu for the inadmissibility of Section 67 statements, subsequent judgments, including Mohit Aggarwal and Union of India v. Shiv Shanker Kesari, hold that the admissibility of such statements is a matter for trial, and they cannot be discarded outright at the bail stage. Regarding the contention of non-compliance with Section 50, the Court found that the respondent's counter-affidavit demonstrated compliance with statutory requirements, and as clarified in State of Kerala v. Prathul, Section 50 applies only to personal search, not baggage. The Court further held that absence of antecedents, prolonged custody, or humanitarian considerations cannot override the statutory bar under Section 37 of the NDPS Act, as consistently held in various Supreme Court judgments. Consequently, the Court was not satisfied that there were reasonable grounds to believe that the petitioner was not guilty of the alleged offence or was unlikely to commit an offence while on bail. The Criminal Petition was dismissed. However, the trial court was directed to expedite the proceedings and dispose of the case at the earliest, given that investigation was completed and charge sheet filed.

Facts

The petitioner, Mr. Shebe Shebe Amerani, a citizen of Tanzania, was intercepted at Rajiv Gandhi International Airport on January 26, 2022, and allegedly found with 1389 grams of heroin concealed in her luggage. The petitioner denied knowledge of the contraband and asserted a lack of mens rea. The petitioner's counsel argued that the search and seizure were vitiated by procedural lapses, specifically non-compliance with Section 50 of the NDPS Act, which mandates informing the accused of their right to be searched before a magistrate or Gazetted Officer, and a violation of Section 42 requiring prior written authorization for searches. The petitioner also claimed no prior criminal record and that the investigation was substantially complete. The respondent, the Superintendent of Customs, contended that the search and seizure were conducted in compliance with Section 50, and Section 42 empowered customs officers to search and arrest without a warrant. The respondent emphasized that the petitioner's own statement revealed collusion with unknown persons for monetary consideration, establishing a culpable mental state.

Key Issues

1. Whether the search and seizure conducted by the Customs authorities were vitiated by procedural lapses, specifically non-compliance with Section 50 of the NDPS Act, 1985, rendering the evidence inadmissible? 2. Whether the petitioner lacked the necessary mens rea and knowledge to commit the alleged offence under Sections 21, 23, and 29 of the NDPS Act, 1985, given her alleged limited role and potential coercion? 3. Whether the stringent conditions under Section 37 of the NDPS Act, 1985, for granting bail in cases involving commercial quantities, can be relaxed or are not applicable in the petitioner's case due to procedural violations, lack of intent, or humanitarian grounds? Petitioner's Arguments: The petitioner argued that the search and seizure were vitiated by non-compliance with Section 50 of the NDPS Act and Section 42, citing precedents like State of Punjab v. Balbir Singh. They contended that any statement under Section 67 of the NDPS Act was inadmissible without corroboration, referencing Tofan Singh v. State of Tamil Nadu. The petitioner also argued for a limited role, lack of knowledge, no prior criminal antecedents, and humanitarian grounds for bail, citing Telangana High Court judgments. Respondent's Arguments: The respondent asserted that the search and seizure complied with Section 50 and Section 42, and the petitioner's statement established a culpable mental state. They relied on numerous Supreme Court precedents, including Customs v. Almadalieva Nodira and NCB v. Mohit Aggarwal, to argue that bail under the NDPS Act is an exception, and the twin conditions under Section 37 are mandatory and cumulative. They contended that procedural lapses, lack of antecedents, or humanitarian grounds cannot override Section 37.