Active Participation In Ingesting Contraband Tablets Sufficient To Establish Conscious Possession Under NDPS Act: Delhi High Court
The Delhi High Court was considering an application filed on behalf of a foreign national for the grant of regular bail in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Justice Ravinder Dudeja, Delhi High Court
While refusing to grant bail to a foreign national booked under the provisions of the NDPS Act, the Delhi High Court has held that her active participation and intent in ingesting contraband tablets suggested that she was consciously facilitating the illegal trade of the contraband, and the same was sufficient to establish prima facie conscious possession under the NDPS Act.
The High Court was considering an application filed on behalf of the petitioner under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023, read with Section 439 CrPC, for the grant of regular bail in a case registered under Sections 8, 21, 23, 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Single Bench of Justice Ravinder Dudeja held, “The Petitioner’s active participation and intent in ingesting the said contraband tablets suggests that she was consciously facilitating the illegal trade of the contraband. This is sufficient to establish prima facie conscious possession under the NDPS Act.”
“The petitioner, being a foreign national, may prove to be flightrisk, especially when the alleged offence involves a large quantity of contraband”,it added.
Advocate Aniruddha Singh Rajavat represented the Petitioner, while SSC Shubham Tyagi represented the Respondent.
Factual Background
The case dates back to the year 2022, when the petitioner, arriving at the airport, was intercepted at the Green Channel by the Customs officials. Despite no contraband being detected during the baggage X-ray or DFMD screening, her conduct remained suspicious. Two independent panch witnesses were called, and the petitioner, along with her baggage, was taken to the Customs Preventive Room for further verification. The petitioner, in writing, consented to the search being conducted by a lady Customs officer. During further inquiry, the petitioner voluntarily disclosed that she had ingested capsules containing narcotic substances. Pursuant thereto, she was taken to the Hospital where she was admitted under medical supervision. During her hospitalisation, the petitioner eased out a total of 42 capsules ingested by her over multiple days.
After her discharge from the hospital, the said capsules were opened in the presence of independent panch witnesses. Upon testing, the contents were found to be Diacetylmorphine (Heroin). The total recovered substance weighed approximately 462 gms, which is a commercial quantity under the NDPS Act. Subsequently, the petitioner was arrested, and upon completion of the investigation, a complaint was filed before the competent court. The petitioner filed a bail application, which was dismissed by the court of Special Judge (NDPS)-02 (Trial Court). Aggrieved thereby, the petitioner approached the High Court.
Reasoning
The Bench first dealt with the Petitioner’s submission that she was in unauthorised detention/custody and the same was being in violation of Section 103 of the Customs Act. The Bench took note of the fact that in response to a notice under Section 103 of the Customs Act, the petitioner had admitted to having concealed some capsules containing NDPS contraband inside her body and voluntarily submitted herself for suitable action to bring out such goods from her body. “That being so, prima facie, it appears that provisions of Section 103(3), 103(4) & 103(6) of the Customs Act shall not apply in the present case”, it added.
Coming to the alleged violation of Section 52-A the NDPS Act and Standing Order No. 1/88, particularly on account of mixing of the contents of the capsules, the Bench held that the same is a matter which is to be tested during the trial and not a ground for grant of bail. “Section 52-A NDPS Act is directory in nature and its non-compliance in itself cannot render the actions of the Investigating Officer null & void”, the Bench mentioned.
The Bench noticed that the contraband recovered from the petitioner was in commercial quantity and was punishable with imprisonment for a term which shall not be less than 10 years, but may also extend to 20 years. “The jurisdiction of the Court to grant bail in such cases is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted if there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. In order to control the drug menace, the Parliament has provided that the person/accused of offence under NDPS Act should not be released on bail during the trial unless the mandatory provisions of Section 37 are fulfilled”, it added.
The Bench thus held that the Petitioner’s actions and admission established a strong prima facie case of knowledge and intent which was sufficient to satisfy that she was not wrongfully framed and that she had conscious possession of contraband. “In light of the above, there is a strong possibility that the Petitioner may abscond or otherwise interfere in the ongoing investigation if she is released on bail. The ingenious mode of concealment by itself is self-explanatory. Petitioner has thus failed to cross the threshold of Section 37 NDPS Act”, the order read.
Considering that the twin conditions imposed by Section 37 of the NDPS Act were not satisfied, the Court dismissed the bail application.
Cause Title: Lydia Kabukazi Aloyo v. Customs (Neutral Citation: 2025:DHC:11877)
Appearance
Appellant: Advocates Aniruddha Singh Rajavat, Maneesh Bhardwaj, Ankur Jain, Prachi Vats, Rohan Kumar
Respondent: SSC Shubham Tyagi, Advocate Navruti Ojha