HC grants bail to foreigner arrested with 4 kg heroin as NCB failed to follow procedure

Bombay High Court grants bail to African man arrested for heroin possession due to NCB's failure to comply with procedural requirements.

MUMBAI: The Bombay High Court on Monday granted bail to a man of African origin who was arrested for alleged possession of 4 kilograms of heroin, on account of the failure on the part of the Narcotics Control Bureau (NCB) to comply with mandatory procedural requirements.

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A single judge bench of justice Manish Pitale granted bail to Kenneth Mulowa after noticing that proper notice was not given to him of his right to be searched in the presence of a magistrate or a gazetted officer, as required by the Narcotic Drugs and Psychotropic Substances Act, 1985.

Acting on a specific tip-off, the NCB had on May 9, 2021, apprehended Mulowa after he landed in Mumbai from Lusaka via Dubai and had allegedly found 4 kg heroin in a bag belonging to him. Mulowa approached the high court for bail after the special NDPS court rejected his plea last year.

In the high court, it was argued by his counsel that while conducting search on him, notice required under Section 50 of the NDPS Act, apprising him of his right to be searched in presence of a magistrate or a gazetted officer, was not served to him. It was also argued on his behalf that the seizure was doubtful because there was delay complying with Section 52-A of the Act.

NCB opposed the plea, maintaining that there was sufficient compliance with the requirements of the NDPS Act.

Justice Pitale observed that the notice under Section 50 was served to Mulowa, and he had countersigned it. The judge also noticed that the panch witnesses had stated in the seizure memorandum that they, too, had signed the notice under Section 50, but their signatures did not appear on the notice.

“Thus, there is discrepancy in the document,” said the court, while commenting on the notice. “This creates doubt and prima facie casts a shadow of doubt as regards the service of notice on applicant under Section 50 of the NDPS Act, as to whether he was indeed made aware about his rights in accordance with law,” the judge said.

As for the filing of application under Section 52-A to the magistrate court for drawing samples from the seized bulk, the court noted that though the seizure was made on May 9, the application was filed after three months, on August 6, and, thus, there was delay in submitting the application.

“It appears that a prima facie case is made out by the applicant. The delay in the present case appears to have vitiated the mandatory procedure, under Section 52-A of the NDPS Act,” said the court and ordered the foreign national to be released on furnishing a personal bond of ₹1 lakh and one or two sureties in the same amount.