The Delhi High Court has refused to grant bail to foreign national accused of importing 9.950 kgs of heroine in India.
The bench of Justice Neena Bansal Krishna has observed that the substance was tested and the result revealed that the said substance is “Heroine”. The substance was then seized under section 43(a) of NDPS Act and section 110 of the Customs Act for violation of Section 8 & 23, as these were found to be liable for confiscation under 60 of NDPS Act, read with Section 111 of the Customs Act as the same were brought Into India illegally.
Background
The Applicant has stated that he is a 71 year old citizen of Belize City, Belize with clean antecedents and good moral standing. The Applicant arrived at New Delhi from Doha via Qatar Airways flight and was intercepted by Customs Officers on suspicion and was asked to scan his baggage.
The two independent panchas were called and the accused along with his baggage was taken to the Customs Preventive Room for further verification.
The Customs Officer inquired from the accused about his carrying any contraband, to which the accused replied in a negative. A Notice under Section 102 of Customs Act, 1962 and under Section 50 of the NDPS Act was served by the Customs Officer in presence of the panchas. He was informed about requirement of his personal and baggage search and was also apprised of his legal rights that the search could be conducted before a Magistrate or a GazettedOfficer of Customs.
The baggage of the accused was searched and an off-white colour powdery substance was recovered from false top and false bottom of the black trolley bag. On the suspicion of the recovered substance being a contraband, the same was kept in transparent poly bags and kept in plastic containers. The total substance recovered weighed 9.950 Kg.
The seized substance was tested with the help of a field drug testing kit present at Customs Office and the substance tested positive for “Heroin”. After the proceedings, Applicant was taken into custody on 30.10.2022.
The Investigating Agency moved for an Application under Section 52-A of the NDPS Act for drawing of samples, which was allowed by the Metropolitan Magistrate. The samples drawn were sent to the Central Revenues Control Laboratory for testing and the Test Report was received.
On completion of investigations, the Complaint against the Applicant was filed in the court of Special Judge (NDPS). The statements of the panch witnesses were recorded under S. 67 of the NDPS Act, and the Special Judge framed Charges under Sections 21 & 23 of the NDPS Act.
The first Regular Bail Application was filed by the Applicant on 24.01.2024 which was dismissed by the Special Judge vide order dated 27.02.2024. Hence, the bail Application was filed before the high court.
Arguments – Bail For Allegedly Indulging In Import of Heroine
The applicant contended that the statement of pancha witnesses recorded to the effect that “the Pax gave his consent in writing on the body of both the notices itself that his personal and baggage search could be conducted by any Customs Officer in presence of any gazetted officer”.Even though it is stated that the Applicant had sought presence of gazetted officer, but the statements of the witnesses does not disclose if any gazetted officer was called. Further, the statement is untrustworthy owing to the fact that there is nothing handwritten on the two Notices and the same are typed.
The applicant contended that the alleged recovery of the contraband is tainted as there is considerable delay in sending the alleged recovered contraband for sampling in terms of section 52-A of the NDPS Act. The seizure memo recorded the weight of contraband at 9950 grams while the Order which allowed the Application filed under Section 52-A recorded the weight at 9959 grams, i.e. a difference of total 9 grams. This discrepancy in the weight creates a doubt about the recovery of alleged contraband.
The department contended that the accused had initially started his journey from Johannesburg (JNB) to Doha (DOH). The accused was carrying one black colour trolley bag, one brown colour trolley bag, i.e. two checked-in bags and one black colour handbag. And on the basis of profiling, he was stopped and his search was conducted. After recording his statement to the effect that he did not possess any contraband substance, a Notice under section 50 of NDPS Act and another under Section 102 of the Customs Act were served upon him.
Conclusion
The court noted that the recovery of commercial quantity of narcotic substance was affected from the Applicant, this Court cannot persuade itself to believe that there are reasonable grounds to believe that he is not prima facie guilty of the alleged offence under NPDS Act. Moreover, it is the nature of the contraband seized which further weighs against any benefit that were to accrue to the Applicant. Heroin (a hard drug), an opioid, directly impacts the central nervous system, leading to rapid addiction, severe withdrawal symptoms, and has a high propensity for overdose, often resulting in death.
The court added that it presents a significantly graver threat to public health and individual well-being as compared to cannabis (a soft drug). Moreover, the risk of fatal overdose associated with heroin use is markedly higher. Heroin use on a regular basis has been noted to have major health and lifestyle problems such as collapsed veins and skin abscesses, and in the long term, the effects are seen in the deterioration of the brain‟s white matter and it also produces high intolerance and physical dependence, thus, proving to be highly addictive.
The court while dismissing the bail application held that the Applicant being a foreign national can prove to be a flight risk, especially when the alleged offence involves a large quantity of contraband.
Case Title: Francis Marion GEGG Versus Customs
Case No.: BAIL APPLN. 931/2024 & CRL. M.A. 8129/2024
Date: 01/10/2024
Counsel For Petitioner: Sumer Singh Boparai, Sidhant Saraswat and Varun Bhati
Counsel For Respondent: Gibran Naushad
