Kynlo Magwada vs State Of Maharashtra
2026 Latest Caselaw 2937 Bom

Bombay High Court

Kynlo Magwada vs State Of Maharashtra on 24 March, 2026

     2026:BHC-AS:13923


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       vai
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION
VASANT
ANANDRAO
IDHOL                        CRIMINAL BAIL APPLICATION NO.4628 OF 2024


Digitally signed   Mr.Kynlo Magwada & Anr.                                 ...Applicants
by VASANT
ANANDRAO                     V/s.
IDHOL
Date:
                   State of Maharashtra & Anr.                             ..Respondents
2026.03.24
16:08:20 +0530


                   Mr.Ashish Baraskar with Mr.Aavez Shaikh for the Applicants.

                   Ms.Rajeshree V. Newton, APP the State - Respondent.

                   Mr.Saket Ketkar, Special P.P. for Respondent No.2.

                                  CORAM : R.M. JOSHI, J.
                                  DATE OF RESERVE : 18TH MARCH, 2026.
                                  DATE OF PRONOUNCEMENT : 24TH MARCH, 2026.

                        ORAL ORDER:-

1. Applicants are seeking bail in connection with First

Information Report No. 127/2021 for the offences punishable

under Sections 8(C ) r/w 21(c), 22, 27(A), 23 r/w Sections 28

and 29 of Narcotic Drugs and Psychotropic Substances Act (for

short "NDPS Act") registered with Air Port Intelligence Unit,

Mumbai.

2. On 09.12.2021, a specific intelligence was received by

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Air Intelligent Unit, Chhatrapati Shivaji Maharaj International

Airport, Mumbai that Applicants are arriving by Ethiopian

airlines Flight No. 80-610. The intelligence further suggested

that the said passengers might be carrying some

narcotic/psychotropic substance covered under NDPS Act.

Intelligence note was prepared and submitted to the higher

authorities. An action was directed to be taken on the basis of

the said intelligence received. Later on, in presence of panch

witnesses, Applicant were apprehended and their trolley bags

were searched. From the bag of Applicant No. 1, 16.464 kg of

Heroin was found concealed in a bag identified as `C' and `D'

whereas from the trolley bag of Applicant No. 2 identified as

bags `A' and `B', there is a total recovery of 18.526 kg . Total

weight of the seizure was 34.452 kg from both the Applicants.

Authorised officer took further steps in compliance of the Act

and on conclusion of the investigation, charge-sheet came to be

filed before the competent Court.

3. It is the case of the Applicants that the samples which

were allegedly taken were produced before the Metropolitan

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Magistrate, 64th Court, Mumbai after expiry of 42 days and thus,

there is non-compliance of Section 52(A) of the Act. It is

claimed that the co-accused i.e. Accused Nos. 3 and 4 are already

released on bail by the Special Court. It is further claimed that

the Applicants are in custody for about a period of three years

and the trial has not commenced. It is further claimed that the

CA Report reveals that the contraband is a mixture of Caffeine,

Codine and Morphine etc. and hence it cannot be said that the

entire contraband is Heroin.

4. Learned Counsel for Applicants submits that though

here is claim of the investigating agency of recovery of 34 kg of

Heroin, according to him, there is no substance in the said claim.

It is his submission that the entire quantity allegedly seized from

the Applicant cannot be attributed independently/individually

against them. It is also claimed that this is a case of mixing of

contraband i.e. the contraband recovered from the Applicants

individually. It is further claimed that CA report does not

indicate that the entire material seized was Heroin and since it is

mixture of Caffeine, Codine, Morphine etc. it cannot be said that

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the substance which was allegedly seized at the instance of the

Applicant was capable of mixture being homogeneous substance.

It is further argued that notice under Section 50 was given only

to accused No. 2 whereas no such notice is there on record

indicating information of the right to the accused i.e. Applicant

No. 1 to have search in presence of a Gazetted Officer or a

Magistrate. It is further argued that even in respect of the notice

of Applicant No. 2, there is no date mentioned thereupon which

creates possibility of fabrication of evidence. It is further

canvassed that this is a case wherein there is non-compliance of

Section 52A of the Act as the sealed contraband was sent to the

Magistrate after a period of 40 days. Finally, it is argued that

after over a period of three years, the Applicants are in jail and

inspite of framing of charge about 1 year back, the trial has not

started and hence the trial is not likely to be concluded in

reasonable period of time. For this purpose, the Applicant relied

upon the judgment in case of Wajid Ali @ Tinku vs. State of

Rajasthan, IA No.118177 of 2025 in Petition for Special Leave to

Appeal (Criminal) No.7049 of 2025. Thus, on long incarceration

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also, Applicants seek bail.

5. Learned Counsel appearing on behalf of Respondent

No. 2 Union of India opposed the application. At the outset, it is

contended that there is prima facie evidence on record to

indicate that from both the Applicants, drug i.e. Heroin

weighting 34.452 kg worth Rs. 2,41,16,40,000/- is recovered. It

is argued that there is ample evidence on record to indicate that

Applicants had conscious possession of huge quantity of narcotic

drug Heroin. It is further argued that CA report indicates that

the seized article is a contraband under NDPS Act. It is

submitted that at this stage, the Court cannot go into the CA

reports and to record any findings in support of the merits of the

case. It is further argued that it would be a matter of trial

wherein the prosecution will be in a position to explain the CA

Report in the context/in the light of the entire evidence led

before the Court. It is argued that considering the huge quantity

of Heroin, this is not a case wherein there is reasonable ground

to believe that the Applicants are not guilty of the offences

charged against them. On these amongst other contentions,

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learned Counsel seeks dismissal of the application.

6. There is no dispute about the fact that not only

together but also independently, from conscious possession of

Applicants, commercial quantity of contraband i.e. heroin has

been seized. Thus, the embargo of Section 37 of the Act would

certainly apply to the present case. In such circumstances, this

Court is required to consider as to whether this is a case wherein

it cannot be said that the Applicants have not committed the

offence in question and on enlargement on bail, they would not

commit similar offence.

7. Prima facie perusal of the record and the contents of

the charge-sheet indicate that the intelligence note was prepared

on 09.12.2021 specifically mentioning the names of the

Applicants with suspicion that they may be carrying some

narcotic substance. The said note was up before the superior

authority and permission was obtained for taking further action.

Thus, there is prima facie compliance of Section 42 of the Act.

8. With regard to compliance / non-compliance of

Section 50 of the Act, a reference can be made to the judgment

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of the Hon'ble Supreme Court in case of Ranjan vs. State of

Himachal Pradesh, 2023 SCC Online SC 1262. The Hon'ble Apex

Court, after considering the entire case law on the subject has

summarised the requirements as envisaged by Section 50 of the

Act. It is held that Section 50 provides both right as well as

obligation. The person about to be searched has a right to have

his search conducted in the presence of a Gazetted Officer or a

Magistrate, if he so desires and it is obligation of police officer to

inform such person of this right before proceeding to search the

person of the suspect. It is further held that before conducting a

search it must be communicated in clear terms though it need

not be in writing and is permissible to convey orally that suspect

has a right of being searched by a Gazetted Officer or a

Magistrate. It also requires that in case of multiple persons to be

searched, each one of them is to be individually communicated

of the right and each must exercise waiver of the same in their

own capacity.

9. Seizure panchanama indicates that after interception

of the Applicants, they were specifically asked question as to

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whether they are carrying any narcotic substance, which was

replied by them in negative. Panchanama further records that

the officers then informed the said two passengers i.e. Applicants

in front of the panchas that they intend to examine their luggage

and personal search in presence of panchas. It further records

that the officers informed the Applicants individually that as per

the provisions of NDPS Act, they have a right to be searched in

front of a Gazetted Officer or a Judicial Magistrate. Both the

Applicants did not seek search in presence of other Gazetted

Officer or a Judicial Magistrate. Prima facie perusal of the said

panchanama indicates that it is duly signed by the panch

witnesses so also Applicants. Thus, at this stage this Court has

no reason to accept the contention of learned Counsel for the

Applicants that there is non-compliance of Section 50 of the act.

10. Panchanama further indicates that in a transparent air

tight packets yellowish colour granules and powder was found

therein. Seized articles were weighed independently and the

weight was recorded separately by marking it from A1 to A10.

Similar exercise was done in respect of the other seizure and the

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articles were marked independently by mentioning weight

against the same. Panchanama further reveals that the officers

in presence of the panchas selected a packet randomly recovered

from each bag and took small pinch of powder for testing in

IONSCAN machine model No. 500 DT installed at CSMI Airport.

The samples of the powder were tested individually in the said

machine in presence of panchas by the officers. Reports

generated by the said machine in front of the panchas and

officers confirmed the presence of Heroin in the samples which

were tested. Thereafter the officers emptied the powder and

granules recovered from the packets i.e. bag No. A into a blue

colour plastic bag having weight of 37 Gms. The said packet was

sealed thereafter. Similar exercise has been done in respect of

the granules and powder recovered from the packets from the

other bags. Now question arises as to whether it is open for the

concerned authority to mix such contraband articles into one

packet. It would be relevant to refer to the rules framed in the

year 2022 under NDPS Act. Rule 10 indicates that it is

permissible for the authorities/police officers to mix

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homogeneous substances into packets not exceeding 40 in

number. This Court finds that the said rule since permits the

authority to mix the homogeneous substance and since in the

instant case the same has been done after due testing, there is no

reason to hold non-compliance of the Rules of 2022. In any case

the findings with regard to homogeneousness of seized

contraband and C.A. report and its evaluation would be matter

of trial. Needless to say that irregularity if any caused would be

open for explanation during trial and acceptability or otherwise

would be subject matter of decision of Trial Court.

11. Insofar as compliance of Section 52(A) of the Act is

concerned, perusal of the said provision indicates that such

provisions deals with regard to the disposal of the substance

seized. The purpose of the said provision is to enable the

investigating agency to dispose of such substances except for the

samples secured. The said provision shows that the inventory is

required to be sent to the concerned Magistrate at the earliest.

The main/basic purpose of the said provision is that having

regard to the hazardous nature, vulnerability to theft,

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substitution, constraint of proper storage space or any other

relevant consideration in respect of narcotic drugs, psychotropic

substances, controlled substances shall as soon as maybe after

their seizure be dispose of by such officer and in such manner as

the Government may from time to time determine. It is after

destruction of the substance, during the course of trial, the

inventory, photographs of drugs and list of samples drawn and

certified by the Magistrate are considered as primary evidence in

respect of such offence. Having regard to the purpose for which

Section 52(A) has been introduced in the Act, this Court finds no

substance in the contention of learned Counsel for the Applicants

that for the reason inventory has been sent to the Magistrate

after 40 days, it becomes a ground for grant of bail. Needless to

say that these issues are triable in nature and it is open for the

prosecution to explain the delay. Moreover, there is prima facie

evidence on record to show that parcels/seized articles were sent

to CA in sealed condition as recorded in CA report. Thus, at

least at this stage, there is no reason to accept the contention of

the Applicants with regard to the possibility of tampering of

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evidence.

12. At this stage, it would be relevant to consider the

judgment of Hon'ble Supreme Court in case of NCB vs. Kashid

passed in Criminal Appeal No. 5544/2024. The Hon'ble

Supreme Court in paragraph 39 has summarised discussion of

Section 52A of the Act which reads thus :

"(i) 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.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature.

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

(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the international Conventions on the Narcotic drugs and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the

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procedure as contemplated in Sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

(vi) 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. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

It is thus held that any lapse or delay in compliance of

Section 52(A) in itself would neither vitiate the trial nor would

entitle the accused to be released on bail.

13. Insofar as CA Reports are concerned, the result of

examination reads as "the exhibits were analysed by colour test,

Thin Layer Chromatography (TLC) and as Chromatography -

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Mass Spectrometric (GC-MS) methods, based on the above

methods the results obtained are given below :

Diacetylmorphine (Heroin), 6 - monoacetylmorphine,

Acetylcodeine and Caffeine have been detected in Exhibits : A1-

S, B1-S, C1-S and D1-S. Thus, the mixing has been done of the

samples drawn from each bag after testing the same, atleast at

this stage it cannot be said that any error was committed by the

authorised officer in mixing the same. Suffice it to say that a

total drug Heroin weighing 34.452 kg has been recovered at the

instance of both accused.

14. Having regard to the huge quantity of heroin, seized

and nature of evidence against Applicant, it is not a fit case for

grant of bail as this Court has no reasonable grounds for

believing that the Applicants are not guilty for the offences

charged against them and that they are not likely to commence

or commit any offence if released on bail. This observation is

inevitable in view of the material evidence on record which

indicates that the Applicants were in conscious possession of

contraband articles and the said articles were obtained from a

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common person and this could be considered prima facie as a

case of conspiracy by all accused persons. In case of State of

Madhya Pradesh vs. Kajad, 2001(7) SCC 673 with regard to

principles governing bail in NDPS cases, issue of long

incarceration, it is observed that "A bare perusal of Section 37 of

the Act leaves no doubt in the mind of the Court that a person

accused of an offence punishable for a term of imprisonment of 5

years or more shall generally be not released on bail. Negation

of bail is a rule and its grant is an exception under Sub-Clause

(ii) of Clause B of Section 37(1). For granting bail, the Court

must, on the basis of the record produced before it, be satisfied

that there are reasonable grounds for believing that the accused

is not guilty of the offence" with which he is charged and further

that he is not likely to commit any offence while on bail. It has

further to be noticed that the conditions for granting the bail,

specified in clause (b) of sub- section (1) of Section 37 are in

addition to the limitations provided under the Code of Criminal

Procedure or any other law for the time being in force regulating

the grant of bail. A liberal approach in the matter of bail under

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the Act is uncalled for.

15. Similarly, in case of NCB vs. Mohit Aggrawal, (2022) 8

SCC 374, it is held that the length of the period of his custody or

the fact that the charge-sheet has been filed and trial has

commenced are, by themselves not considerations that can be

treated as persuasive ground for grant of relief to the

Respondent under Section 37 of the NDPS Act.

16. Needless to say that long incarceration by itself does

not become a ground for grant of ail considering prima facie

evidence against the applicant showing their involvement in the

serious crime of transporting heroin weighing 34.452 kg.

17. Hence application deserves to be dismissed and stand

dismissed accordingly. Learned trial court however is requested

to expedite the trial and conclude the same at the earliest in

view of the fact that the Applicants are behind bar for over a

period of three years by now.

(R.M. JOSHI, J.)