Solitary Financial Transaction Of ₹15,000 Without Corroboration Insufficient To Attract NDPS Rigour: Kerala High Court Grants Bail To Tanzanian Student
Court noted that compliance with arrest safeguards were satisfied; and Section 37 NDPS Act not attracted in absence of material linking accused to the act.
The Kerala High Court has granted bail to a Tanzanian national in a narcotics case, holding that a solitary financial transaction of ₹15,000, without any corroborative material, is insufficient to establish involvement in an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) or to attract the stringent bail conditions under Section 37 of the Act.
On the issue of constitutional safeguards, the Court examined whether the mandate under Article 22(1) and (2) of the Constitution of India and Sections 47 and 48 of the BNSS had been complied with. It found that the grounds of arrest were duly communicated to the accused, and in the case of a foreign national, informing the Foreigners Regional Registration Officer (FRRO) and facilitating communication with the embassy constitutes sufficient compliance.
Dr. Justice Kauser Edappagath observed, “In the final report, the only material relied on by the prosecution to connect the applicant with the crime is the single money transaction of `15,000/- alleged to have reached into his account from the account of the accused No.1. The solitary financial transaction by a co-accused with the main accused from whom the contraband was seized without any other material to show the complicity of the co accused in the crime cannot be a reason to implicate him in the crime under the NDPS Act. As stated already, apart from a solitary financial transaction between the accused No. 1 and the applicant, there is absolutely nothing on record to suggest the involvement of the applicant in the crime. Therefore, the rigour of Section 37 of the NDPS Act cannot be attributed to the applicant. The applicant is in custody for the last more than eleven months. The final report has already been filed. For all these reasons, I am of the view that the applicant is entitled to bail”.
Advocate Shibin K.F. appeared for the petitioner and O.M. Shalina, Deputy Solicitor General Of India and Sreeja V., Senior PP appeared for the respondents.
The Bench was dealing with a bail application filed by the fifth accused in a NDPS matter, where commercial quantities of MDMA and hashish oil were allegedly seized from co-accused persons. The prosecution case was that the applicant had supplied contraband to other accused, who in turn sold it further.
However, rejecting the prosecution’s claim, the Court noted that the only material connecting the applicant to the crime was a single monetary transaction of ₹15,000 from a co-accused. Relying on settled law that confessional statements under Section 67 of the NDPS Act are inadmissible, the Court held that such a standalone financial transaction, without any other supporting evidence, cannot justify implicating the accused in a serious narcotics offence.
The Court also rejected the argument that the accused was produced before the Magistrate beyond 24 hours. It clarified that the relevant time is the moment of formal custody by the investigating police, and not the initial detention pursuant to a Look Out Circular. On facts, the production was held to be within the permissible time.
Significantly, the Court held that in the absence of substantive material linking the accused to the alleged offence, the rigour of Section 37 of the NDPS Act would not apply. Taking into account that the applicant had already spent over eleven months in custody and that the final report had been filed, the Court found him entitled to bail.
Given that the accused is a foreign national, the Court also directed that appropriate orders be passed by the FRRO, reiterating that bail does not override powers under the Foreigners Act, 1946.
Noting that the applicant was a foreign national, covered under Section 3 of the Foreigners Act, 1946, the Central Government is empowered to issue an order, it observed, “In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946, the Foreigners Order, 1948 has been issued. Clause 2(2) of the Order provides for appointing a Civil Authority by the Central Government. Clause 5 of the Order deals with the power to grant permission to depart from India. As per Clause 5(1)(b) of the Order, no foreigner shall leave India without the leave of the Civil Authority having jurisdiction...”.
“As per Clause 5(2)(b) of the Order, the foreigner’s presence is required in India to answer a criminal charge and permission to leave India must be refused. Therefore, once a foreigner is released on bail, he cannot leave India without the permission of the Civil Authority, as provided in Clause 5 of the Order. Under Clause 11 of the Order, the Civil Authority can impose restrictions on the movements of a foreigner. The said power is wholly independent of the power to grant bail. Notwithstanding the bail granted by a criminal court, the power to arrest and detain a foreigner can be exercised, provided the Central Government makes an order in terms of clause (g) of Section 3(2) of the Foreigners Act”, the Bench noted.
Cause Title: Abdul Hamid Makame v. State Of Kerala & Ors. [Neutral Citation: 2026:KER:24424]
Appearances:
Petitioner: Shibin K.F., Kiran Murali, Advocates.
Respondent: O.M. Shalina, Deputy Solicitor General Of India, Sreeja V. Sr. PP.