Telangana High Court

Ms. Yoyo Bomkazi vs The State Of Telangana on 23 June, 2025

       THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO

             CRIMINAL PETITION No.5094 of 2025

ORDER:

This Criminal Petition is filed under Sections 480 & 483

of the Bharatiya Nagarik Suraksha Sanhitha, 2023 (for short

'BNSS') seeking bail to the petitioner/accused in

F.No.HQPOR.No.39 of 2022-CUS.PREV., on the file of XV

Additional Metropolitan Magistrate, Cyberabad,

Rajendranagar, Hyderabad registered for the offences

punishable under Sections 21, 23, 25A, 28 & 29 of Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS

Act').

2. The case of the prosecution is that on 06.05.2022 at

01:50 hours at Rajiv Gandhi International Airport, Hyderabad,

the petitioner/accused was involved in illicit possession,

transport and import of Heroin into India weighing about 6750

grams which is a commercial quantity in contravention of the

provisions of Section 8 of NPDS Act, 1985 and the offences

punishable under Sections 21, 23, 25A, 28 & 29 of the NDPS

Act, 1985. The petitioner/accused was arrested on

06.05.2022 at Office of the Principal Commissioner of

Customs, GST Bhavan, L.B.Stadium Road, Basheerbagh,

Hyderabad-50004 and produced before the learned Additional

Junior Civil Judge-cum-XV Additional Metropolitan Magistrate

at Rajendranagar, Ranga Reddy on 06.05.2022. The

petitioner/accused was remanded to judicial custody and

lodged in Central Prison, Chenchalguda, Hyderabad.

3. Heard Mr.Md. Fasiuddin, learned counsel for the

petitioner through Video Conference and Mr.Dominic

Fernandez, learned Senior Standing Counsel for CBIC for the

respondent-State.

4. Learned counsel for the petitioner submitted that the

petitioner has not committed the offence and she was falsely

implicated in the above crime basing on the confession

statement of accused and the same is not permissible under

law. The police did not comply with the mandatory

procedure under the provisions of Sections 50 to 52 of the

NDPS Act during seizure of the alleged contraband and send

it for chemical examination. He further submitted that the

investigating officer have not mentioned the nature of the

contraband and what are the tests which were conducted,

and also the colour of the contraband drug.

4.1 He further submitted that the petitioner was arrested

on 06.05.2022, since then she was in judicial custody. Even

according to the prosecution entire investigation is

completed and filed charge sheet. The petitioner is not

having any criminal antecedents. The petitioner is a

foreigner and resident of South Africa citizen and her

passport was seized by the prosecution and the question of

escaping from this Country does not arise. He also

contended that the allegation made by the respondent in the

counter affidavit that by virtue of committing the offence by

the petitioner there is serious effect on the economy of the

country is not true and correct. He further submits that

petitioner is not having any criminal antecedents and she

will appear before concerned court regularly to prosecute the

case and also abide by the conditions which are going to be

imposed by this Court. In support of his contention he relied

upon the orders passed by this Court in I.A.No.1 of 2024 in

Crl.A.No.401 of 2019 dated 05.08.2024, Crl.P.No.8958 of

2024 dated 03.09.2024, Crl.P.No.9588 of 2024 dated

23.08.2024, and order dated 23.10.2024 in Crl.P.No.12576

of 2024.

5. Per contra, learned standing counsel appearing for

respondent submits that the respondent No.2 officials have

seized the contraband weighing about 6750 grams of Herion

which is a commercial quantity. The petitioner in her

statement specifically stated that the drug which was seized

from her possession is a banned substance and she had

committed the offence for want of money. She also stated

that a person by the name IKE approached her in

Johannesburg town and informed her that she would be

paid 4000 US Dollars if she can deliver certain narcotic

drugs in India. He further submitted that petitioner had

committed grave offence and the contraband seized from the

petitioner is commercial quantity, merely because the

petitioner is not having criminal antecedents, does not

entitle her for grant of bail.

5.1. He further submitted that if this court grants bail there

is every chance for non-availability/non-appearance of the

petitioner for the court proceedings and there is definitely a

flight risk as the petitioner is a foreign national and also she

will interfere with the investigation and influence the

witness. Hence, prayed to dismiss the petition.

5.2. In support of his contention, learned counsel relied

upon the judgment of Hon'ble Apex Court in Narcotics

Control Bureau Vs. Kashif 1, Criminal Appeal No.1001-1002

of 2022 between Narcotics Control Bureau Vs. Mohit

Aggarwal 2 dated 19.06.2022, Criminal Appeal No.137 of

2009 between Union of India Vs. Rattan Mallik @ Habul 3,

Criminal Appeal No.1223 of 2007 between Union of India

Vs. Shri Shiv Shanker Kesari 4 dated 14.09.2007.

6. Having considered the rival submissions made by the

respective parties and after perusal of the material available

on record, it reveals that the officials of respondent No.2

have seized the contraband namely 6750 grams of Heroin.

There are specific allegations against the petitioner that she

was found in possession of 6750 grams of Heroin, which is

2024 SCC Online 3848

(2022) 18 SCC 374

(2009) 2 SCC 624

(2007) 7 SCC 798

more than commercial quantity. As per the provisions of

NDPS Act, 5 grams of heroin is small quantity and 250

grams is commercial quantity. Whereas, in the case on hand

contraband seized is huge quantity of Heroin i.e., 6750

grams which is more than commercial quantity. The record

further reveals that the investigating officer after completing

investigation has filed charge sheet and the same was

numbered as SC.NDPS/0000220/2022 and the same is

pending on the file of Special Sessions Judge for trial of

cases under NDPS Act, 1985-cum-Metropolitan Sessions

Judge, Cyberabad, L.B.Nagar, R.R.District.

7. In Narcotics Control Bureau Vs. Kashif (cited supra)

the Hon'ble Apex Court at paragraph Nos.8 and 39 which

reads as follows:

"COMPLIANCE OF THE MANDATE UNDER SECTION 37:

8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which

are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that

(ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions.

39. The upshot of the above discussion may be summarized as under: (i) (ii) (iii) 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. 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. 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 33 International Conventions on the Narcotic drugs and psychotropic substances. (iv) (v) (vi) Sub-section (2) of Section 52A lays down the 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. 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. 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."

8. In the above said judgment the Hon'ble Apex Court

overruled the decision of the High Court on the ground that

bail was granted to the respondent therein solely basing upon

non compliance with Section 52A of the NDPS Act, which

governs the disposal of seized narcotic substances. The Court

clarified that such non-compliance does not automatically

invalidate a trial or entitled the accused to bail, emphasizing

the necessity for the prosecution to establish the integrity of

evidence and the chain of custody. The ruling underscored

that procedural lapses must be evaluated within the broader

context of the case, reinforcing the principle that non-

compliance with Section 52A does not, by itself, warrant bail

or invalidate the trial.

9. In NCB v. Mohit Aggarwal supra, the Hon'ble Apex

Court specifically held at paragraphs 8 and 18, which reads as

follows:

"18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe Criminal Appeal Nos. ............ of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.."

10. In Union of India v. Rattan Malik, the Hon'ble

Apex Court held at paragraph 15, which reads as

follows:

"15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the

circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years, and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-section (1) of Section 37 of the NDPS Act."

10.1. In the above said judgments, the Hon'ble

Apex Court specifically held that the length of the

period of custody of the accused even after filing of the

charge sheet or if the trial commenced, is not a ground

for grant of bail, especially the mandatory requirement

as stipulated under Section 37 of the NDPS Act. In

Mohit Aggarwal, it is specifically held that

humanitarian ground also cannot be a ground for

grant of bail.

11. In Union of India v. Shiv Shaker Kesari, the

Hon'ble Apex Court held at paragraph 13, which is

reads as follows:

"13. In the instant case, it appears that there was a statement recorded under Section 67 of the Act. The respondent has taken a stand that the same was under

coercion. The acceptability of such a stand is a matter of trial. Additionally, the High Court has not indicated any reason as to why it was of the view that the contraband articles were not seized from the exclusive possession of the accused-respondent.."

11.1. In the above said judgment, the Hon'ble

Apex Court held that the statement which was

recorded under Section 67 of the NDPS Act under

coercion, the same has to be adjudicated during the

course of trial.

12. In so far as the contention raised by the learned

counsel for the petitioner that basing on the

confessional statement of the petitioner only the

prosecution implicated the petitioner as accused and

filed final report and the same is contrary to law is

concerned, respondent No.2 officials have seized the

contraband i.e., 6750 grams of Heroin, from the