The court established criteria for granting bail under the NDPS Act, especially concerning the evidentiary burden against a foreign national.

ORDER

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS ), seeking regulat bail.

2. The applicant is the accused No.3 in Crime No.727/2024 of Walayar Police Station, Palakkad District. The offences alleged are punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act)

3. The prosecution case, in short, is that the accused Nos. 1 and 2 in furtherance of their conspiracy had procured 96.57 grams of methamphetamine from the applicant herein at Bangalore, to whom the accused No.2 sent money by Google Pay transaction and the accused Nos. 1 and 2 brought it to Kerala in the bus bearing registration No. TN 70 AS 7359 on

25.8.2024 at 6 am in contravention of the NDPS Act.

4. I have heard Smt. Saipooja, the learned counsel for the applicant, Sri. K.A. Noushad, the learned Senior Public Prosecutor and Smt. O.M. Shalina, the learned Deputy Solicitor General of India. Perused the case diary.

5. The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to bail. The learned Public Prosecutor, on the other hand, submitted that the alleged incident occurred as part of the applicant's intentional criminal acts, and if he is released on bail at this stage, it will affect the course of the investigation.

6. The applicant was arrested on 9.4.2025 and since then he is in judicial custody.

7. I went through the case diary. The contraband was seized from the possession of the accused Nos. 1 and 2. On questioning the accused No.2 while he was in police custody, he confessed that the applicant supplied the contraband to him on payment of ₹80,000/- through bank transfer. Thereafter, the applicant was arrayed as an accused. During investigation, the bank account details of the applicant as well as the accused No.3 were collected and it was found that on 25.8.2024, a sum of ₹80,000/- had been transferred by the accused No.2 to the applicant. Based on this transaction, the prosecution has set up a case that utilising the said money, the applicant purchased the contraband in question and supplied it to the accused No.1. However, apart from the evidence of a single bank transaction stated above, there is absolutely no other material to show that, utilising the said amount, the applicant purchased the contraband and supplied to the accused No.1. It is settled that the confession statement of the accused recorded under Section 67 of the NDPS Act is inadmissible. [See Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 ]. In these circumstances, I am of the view that the rigour of Section 37 of the NDPS Act cannot be attributed against the applicant. Therefore the applicant is entitled for bail.

8. The applicant is a foreigner. Under Section 3 of the Foreigners Act, 1946 , the Central Government is empowered to issue an order making provisions either generally or concerning any particular foreigner or class of foreigners, prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence. Under clause (g) of (2) of the Foreigners Act, a power has been conferred on the Central Government to issue an order directing that a foreigner shall be arrested and detained or confined. In exercise of the powers conferred by of the , 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 w