Bail under the NDPS Act is rarely granted in cases involving commercial quantities unless there are reasonable grounds to believe the accused is not guilty; procedural deficiencies alone do not suffice.

ORDER :

K. SUJANA, J.

This Criminal Petition is filed praying this Court to enlarge the petitioner on bail who is arrayed as accused in S.C. NDPS No.104 of 2023 on the file of the learned Special Sessions Judges for Trial of Cases under NDPS Act at L.B. Nagar, Ranga Reddy District at Hyderabad, registered for the offence punishable under Sections 21 , 23, 25A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

2. Heard Sri Mohd. Fasiuddin, learned counsel appearing on behalf of the petitioner as well as Sri Dominic Fernandes, learned Standing Counsel appearing on behalf of the respondent.

3. Learned counsel for the petitioner submitted that the petitioner is a citizen of Burundi was intercepted at Rajiv Gandhi International Airport on 02.07.2023 and allegedly found with 2027 grams of heroin concealed in her luggage, though she denied knowledge of the contraband and asserted absence of mens rea as required under Sections 21 , 23, and 29 of the NDPS Act, 1985. He emphasized that the search and seizure were vitiated by serious procedural lapses: non-compliance with Section 50 of the NDPS Act, which mandates informing the accused of her right to be searched before a magistrate or Gazetted officer, and violation of Section 42, which requires prior written authorization for conducting searches. In support of his submissions, he placed reliance on State of Punjab v. Balbir Singh , (1994) 3 SCC 299 , K.K. Verma v. Union of India , (1998) 9 SCC 348 , and State of Rajasthan v. Parmanand , (2014) 5 SCC 345 , which held that such violations render the evidence inadmissible. He argued that any statement recorded under Section 67 of the NDPS Act was inadmissible in light of the ruling of the Hon’ble Supreme Court in Tofan Singh v. State of Tamil Nadu , (2021) 4 SCC 1 unless corroborated by independent evidence.

4. Learned counsel for the petitioner contended that although the seized quantity exceeded the commercial threshold under Notification S.O. 1055(E) dated 19.10.2001 (small quantity for heroin being 5 grams and commercial quantity 250 grams), the petitioner had no knowledge or intent to traffic narcotics, and her role was limited, possibly due to coercion or financial exploitation. He further contended that the petitioner had no prior criminal antecedents, had been wrongfully implicated, and was not a habitual offender. The investigation was substantially completed, with seizure, questioning, and filing of the charge sheet already done, making her continued detention unnecessary. He further contended that there are defects in the panchanama and documentation, including lack of proper identification of witnesses, absence of independent and neutral witnesses, failure to maintain chain of custody, contradictions between the panchanama and investigation report, improper sealing and handling of narcotics, absence of videography or photographic evidence, and failure to record the petitioner’s legal rights and contended that these lapses undermined the credibility of the case of the prosecution.

5. Learned counsel for the petitioner further contended that, on humanitarian grounds, the petitioner was a single mother with dependent children, and her prolonged detention in a foreign country caused undue hardship. He further submitted that the petitioner was willing to surrender her passport, report regularly to the investigating officer, and abide by any conditions imposed by the Court, thereby eliminating concerns of flight risk. Judicial precedents were cited, including Criminal Petition Nos. 8958 of 2024 and 5362 of 2023 of the Telangana High Court, where bail was granted to foreign nationals in NDPS cases involving procedural violations and lack of direct evidence. He further submitted that Section 37 of the NDPS Act, which imposes stringent conditions for bail in cases involving commercial quantities, should not be rigidly applied in her case given the absence of intent, knowledge, or conspiracy. Th