* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 02^nd September 2024 Pronounced on: 18^th October 2024 + BAIL APPLN. 1112/2023 & CRL.M.A. 8928/2023 PAULINE NALWOGA .....Applicant Through: Mr. J.S. Kushwaha and Ms. Tanya Kushwaha, Advs.

versus CUSTOMS .....Respondent Through: Mr. Atul Tripathi, Sr. Standing Counsel with Mr. V.K. Attri, Mr. Amresh Jha and Ms. Priya Kumari, Advs.

CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL

JUDGMENT

ANISH DAYAL, J.

1. This application has been filed by applicant under Section 439, Code of Criminal Procedure, 1973 [“CrPC”] read with Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”] seeking regular bail in case arising out of criminal complaint dated 08^th July 2022, bearing File No. VIII(AP)(10)P&I/3315-B/Arrival/2022, by Air Customs Officer, Terminal-3, Indira Gandhi International Airport, New Delhi. Said complaint was filed requesting the District Judge/Additional Sessions Signature Not Verified Digitally Signed Judge (Special Judge NDPS) Dwarka Court, New Delhi to take cognizance of offences allegedly committed by applicant under Sections 8/21/23/28 of the NDPS Act.

Factual Background

2. As per the prosecution’s narrative, on 11^th January 2022, applicant arrived at Terminal-3, Indira Gandhi International Airport, New Delhi [“T- 3 IGI Airport”] by Flight G9 721 from Entebbe, Uganda to Delhi via Sharjah, United Arab Emirates. Applicant was carrying a red-coloured trolley bag and a leather handbag. On arrival, the applicant was asked to get her baggage scanned through X-Ray baggage inspection machine as also to pass through the Door Frame Metal Detector; nothing objectionable was found on her person. During X-ray check the applicant’s baggage, certain suspicious images were noticed pursuant to which, she was directed to the Customs Preventive Room and asked whether she is carrying any contraband to which, she responded in the negative. Two panch witnesses were called to witness the search and further proceedings. Notice under Section 50, NDPS Act was issued as well as another notice under Section 102 of the Customs Act, 1962 [“Customs Act”] was served upon the applicant; she was apprised of the fact that her personal search as well as baggage search could be conducted in the presence of a Gazetted Officer or a Magistrate to which, applicant gave her consent to being searched by any lady Customs Officer.

3. Nothing objectionable was found on her personal search, however, on search of her bags, 107 capsules of off-white coloured substance Signature Not Verified Digitally Signed wrapped in transparent adhesive tape, weighing 1,253 grams, including the packaging material, was recovered from a red-coloured trolley bag. On cutting open all 107 capsules, each capsule was found to have heroin; contents of the capsules were put in a transparent plastic box and sample was taken from the mixed contents of all the capsules.

4. Recovered contraband was seized under Section 43(a), NDPS Act read with Section 110, Customs Act alleging violation of Sections 8/23 NDPS Act on the belief that the contraband has been illegally brought to India. Recovered total weight of the narcotic substance was 1,061 g [commercial quantity], amounting to about Rs. 7.43 crores.

5. Subsequently, the applicant was arrested on the same day i.e. 11^th January 2022 and was produced before the Court; applicant is in judicial custody ever since.

6. Applicant moved the Court of Special Judge, NDPS Act, Delhi [“Trial Court”] and vide order dated 09^th February 2023, Trial Court dismissed the bail application noting that commercial quantity of contraband was seized and hence, embargo of Section 37, NDPS Act is triggered and as of that date, hurdle of Section 37, NDPS Act was not crossed by the applicant. Hence, the applicant has moved the present bail application.

Submissions on behalf of Applicant

7. Improper Sampling: Counsel for applicant contended that sampling procedure followed by the Customs Officers was improper, in Signatu