Ms. Aisha Nduwimana vs. The Superintendent Of Customs

Facts

The petitioner, Ms. Aisha Nduwimana, a foreign national from Burundi, was arrested on July 3, 2023, at Rajiv Gandhi International Airport, Hyderabad. The prosecution alleges she was in illicit possession, transport, and import of approximately 2027 grams of heroin, a commercial quantity, contravening Section 8 of the NDPS Act, 1985. She was produced before a Magistrate on July 3, 2023, and remanded to judicial custody. The charge sheet has been filed. The petitioner seeks regular bail under Sections 480 & 483 of the BNSS, 2023, citing her status as a female foreign national, lack of prior criminal record, and alleged procedural lapses in the investigation. The respondent is the Superintendent of Customs, Customs Commissionerate, Hyderabad.

Held

The Court dismissed the criminal petition seeking bail. The Court noted that 2027 grams of heroin, the quantity seized, is significantly more than the commercial quantity defined under the NDPS Act (5 grams is small quantity, 250 grams is commercial quantity). The Court emphasized the mandatory provisions of Section 37 of the NDPS Act, citing Supreme Court judgments in Narcotics Control Bureau Vs. Kashif, NC3 v. Mohit Aggarwal, Union of India v. Rattan Malik, and Union of India v. Shiw Shaker Kesari. These judgments reiterate that for offenses punishable with a minimum sentence of ten years, bail is an exception, and the court must be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit an offense while on bail. The Court found that the petitioner's contentions regarding procedural lapses and the admissibility of statements are matters to be adjudicated during the trial. The Court also noted that the Supreme Court has held that the length of custody, filing of charge sheet, commencement of trial, and even humanitarian grounds are not sufficient to satisfy the mandatory requirements of Section 37 of the NDPS Act. Therefore, considering the gravity of the offense, the commercial quantity of contraband seized, and the mandatory provisions of Section 37 of the NDPS Act, the Court was not inclined to grant bail.

Key Issues

1. Whether the petitioner is entitled to regular bail under Sections 480 & 483 of the BNSS, 2023, considering the allegations of possessing a commercial quantity of heroin and the mandatory provisions of Section 37 of the NDPS Act, 1985? Petitioner's arguments: The petitioner contends she has been falsely implicated, that the confession statement is inadmissible, and that mandatory procedures under Sections 50 to 52 of the NDPS Act were not followed during seizure and chemical examination. She highlights the completion of the investigation, filing of the charge sheet, her lack of criminal antecedents, and her status as a foreigner with a seized passport, negating any flight risk. She also disputes the claim of serious economic impact. She relies on previous High Court orders granting bail in similar circumstances. Respondent's arguments: The respondent argues that the petitioner admitted to possessing the banned substance for money and was approached by an unknown Kenyan lady. They assert that the offense is grave, the contraband is of commercial quantity, and lack of prior antecedents does not entitle her to bail. The respondent fears a flight risk and potential interference with the investigation and witnesses if bail is granted. They cite Supreme Court judgments in Narcotics Control Bureau Vs. Kashif, Union of India Vs. Rattan Mallik, and Union of India Vs. Shri Shis Shanker Kesaria.