2025 (5) TMI 89 - HC - Customs

Seeking grant of regular bail - Conspiracy to smuggle the contraband by concealing the same in their body - quantity of narcotics recovered exceeds the commercial quantity threshold - HELD THAT - The contraband was being carried by the petitioner surreptitiously by ingesting the contraband which clearly suggests that he was consciously facilitating the illegal trade of contraband. The same is sufficient to prima facie establish the conscious position under the NDPS Act. With regard to the compliance under the Act in the case of State of H.P. Vs. Pirthi Chand and Another 1995 (11) TMI 433 - SUPREME COURT the Hon ble Supreme Court while following the observations made by the Constitution Bench in Pooran Mal case 1973 (12) TMI 2 - SUPREME COURT held It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. In spite of illegal search property seized on the basis of said search it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial. The documents placed on record prima facie reveal that notice under Section 50 of NDPS Act and under Section 102 103 of the Customs Act were served to the petitioner and he even gave reply to such notices. The record further indicates that the Investigating Officer had taken the petitioner to RML Hospital with the permission of the court for screening/scanning to confirm the presence of contraband in his body. Hence it is not a case where no such permission was obtained before taking the petitioner to the hospital for Extraction of the drugs - the narrow parameter of bail available under Section 37 of the Act has not been satisfied in the facts of the present case. Petitioner has not been able to overcome the twin hurdle of Section 37. The length of the period of his custody or filing of the charge sheet and commencement of the trial by itself is not a consideration that can be treated as a persuasive ground for granting relief to the petitioner under Section 37 of the NDPS Act. Conclusion - The allegations no doubt are grave and serious in nature. The recovered quantity of contraband is way above the commercial quantity of Cocaine. Hence keeping in view the entire facts and circumstances and the nature and gravity of allegations and in view of bar under Section 37 NDPS Act it is not inclined to grant bail to the petitioner. Petition dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the petitioner is entitled to regular bail under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 in a case involving offences under Sections 21, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), particularly when the quantity of narcotics recovered exceeds the commercial quantity threshold.

- Whether the procedural compliances under the NDPS Act, including issuance and service of notices under Section 50 NDPS Act and Sections 102 & 103 Customs Act, were properly followed.

- Whether the medical examination and extraction of narcotics from the petitioner's body were conducted with requisite legal permissions.

- Whether any procedural irregularities or lapses, including in sample collection and compliance with Section 52A NDPS Act, would entitle the petitioner to bail or vitiate the trial.

- The applicability and interpretation of Section 37 of the NDPS Act regarding bail in cases involving commercial quantity of narcotics.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Bail under Section 37 of the NDPS Act

Relevant Legal Framework and Precedents: Section 37 of the NDPS Act mandates that offences involving commercial quantity are non-bailable unless the Court is satisfied on two cumulative conditions: (i) reasonable grounds to believe the accused is not guilty, and (ii) the accused is not likely to commit any offence while on bail. The Supreme Court in Narcotics Control Bureau Vs. Kashif emphasized the mandatory nature of these conditions and the literal interpretation of the NDPS Act to uphold its object and purpose.

Court's Interpretation and Reasoning: The Court observed that the petitioner was apprehended with contraband exceeding the commercial quantity threshold (510 grams by petitioner alone, total 1557 grams between co-accused), thereby attracting the rigours of Section 37. The Court held that the petitioner failed to satisfy the twin conditions required for bail under Section 37. The length of custody or pendency of trial was held not to be a sufficient ground to grant bail.

Application of Law to Facts: Given the commercial quantity and the serious nature of allegations, the Court found no reasonable grounds to believe the petitioner was not guilty or unlikely to reoffend, thus denying bail.

Conclusions: Bail under Section 37 NDPS Act was rightly refused as the strict conditions were not met.

Issue 2: Compliance with Procedural Requirements under NDPS Act and Customs Act

Relevant Legal Framework and Precedents: Sections 50 of the NDPS Act and 102 & 103 of the Customs Act require issuance and service of notices before search and seizure. Section 52A NDPS Act prescribes procedure for disposal of seized narcotics. The Supreme Court in State of H.P. Vs. Pirthi Chand and Khet Singh vs. Union of India held that procedural irregularities in search and seizure do not automatically render evidence inadmissible or entitle accused to bail unless serious prejudice is caused.

Court's Interpretation and Reasoning: The Court found that notices were duly served and replied to by the petitioner, negating the claim of defective or absent notices. The petitioner's contention that samples were not drawn properly was rejected as a matter for trial. The Court noted that the Investigating Officer obtained court permission before taking the petitioner for medical examination, countering the claim of unauthorized extraction of narcotics.

Key Evidence and Findings: The record showed written consent by the petitioner for search and medical examination, and court permission for hospital examination. The Field Testing Kit results confirmed presence of cocaine/methaqualone in capsules and soap bars.

Application of Law to Facts: The procedural safeguards were observed, and any alleged lapses were procedural and not grounds for bail or exclusion of evidence.

Treatment of Competing Arguments: The petitioner's arguments on procedural defects were considered but rejected on the basis of evidence and legal precedents emphasizing relevancy of evidence over procedural irregularities.

Conclusions: Procedural compliances were substantially met; any minor lapses do not vitiate trial or justify bail.

Issue 3: Admissibility and Impact of Procedural Irregularities

Relevant Legal Framework and Precedents: The Supreme Court has held that evidence obtained from illegal search and seizure is not necessarily inadmissible unless there is proof of serious prejudice or tampering. The Court in Pooran Mal and subsequent cases clarified that the manner of discovery may affect factum but not the admissibility if discovery is otherwise proved.

Court's Interpretation and Reasoning: The Court reiterated that procedural irregularities, including alleged non-compliance with Section 52A, are procedural and do not invalidate evidence or entitle the accused to bail. The Court emphasized the need to consider all circumstances and the statutory presumption under Section 54 NDPS Act.

Application of Law to Facts: The Court found no evidence of serious prejudice or tampering with evidence; hence, the evidence collected remains admissible.

Conclusions: Procedural irregularities, if any, do not vitiate the trial or warrant bail.

Issue 4: Nature and Gravity of Allegations and Impact on Bail

Court's Reasoning: The Court noted the petitioner's deliberate act of ingesting capsules to smuggle narcotics, indicating conscious facilitation of illegal trade. The quantity recovered far exceeded commercial quantity, underscoring the gravity of offence.

Application of Law to Facts: The serious nature and commercial quantity of narcotics weigh heavily against granting bail.

Conclusions: The grave allegations and statutory bar under Section 37 NDPS Act preclude bail.

3. SIGNIFICANT HOLDINGS

"The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act."

"Recording of findings as mandated in Section 37 is sine qua non for granting bail to the accused involved in the offences under the NDPS Act."

"Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail."

"Evidence obtained as a result of illegal search and seizure is not liable to be shut out unless there is an express or necessarily implied prohibition in the Constitution or other law."

"The length of the period of his custody or filing of the charge sheet and commencement of the trial by itself is not a consideration that can be treated as a persuasive ground for granting relief to the petitioner under Section 37 of the NDPS Act."

Final Determinations:

- Bail under Section 37 NDPS Act was refused as petitioner failed to satisfy mandatory conditions.

- Procedural compliances under NDPS and Customs Acts were substantially met; alleged irregularities were procedural and do not affect admissibility or entitlement to bail.

- The serious nature of offence and commercial quantity of narcotics recovered justified denial of bail.