Ms. Aisha Nduwimana v. The Superintendent of Customs
Court: High Court for State of Telangana
Bench: K. SUJANA
Judgment date:
Case summary
High Court for State of Telangana judgment dated 2025-12-08. Ms. Aisha Nduwimana v. The Superintendent of Customs. Read the judgment and case details on...
Judgment text
IN THE HIGH COURT FOR THE STATE OF TELANGANA // AT HYDERABAD [/ONDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE K. SUJANA CRIMINAL PETITION NO: 10800 OF 2025 Between: t\/ls. Aisha Nduwimana, Female Aged about 43 years, Occupation. Pvt. Employee, D/o Hakizimana ldrissa, Resident of Kamenge 8, Bujumbura, Burundi. (Presently in Chanchalguda Jail) ... Petitioner/Accused AND The Superintendent of Customs, Customs Commissionerate, GST Bhavan, Basheerbagh, Hyderabad-500004. ... RespondenUDefactoComplainant Petitron under Section 483 of BNSS, praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to Grant regular bail to the petitione r/a ccu sed, Ms. Aisha Nduwimana, aged 43 years, a citizen of the Republic of Burundt, residing at Kamenge 8, Bujumbura, Burundi, in connection with S. C- No.
104 of 2023, pending on the file of the Special Sessions Judge for Trial of Cases under NDPS Act at L B. Nagar, Rangareddy District, Hyderabad. Considering the petitioner's status as a female foreign national, the lack of prior criminal record, and the procedural lapses in the investigation, it is humbly requested that this Hon'ble Court granl bail, ensuring justice and the preservation of her constitutional rights. This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Mr MD FASIUDDIN, Advocate for the Petitioner and [/r DOMINIC FERNANDES, the STANDING COUNSEL on behalf of the sole Respondent The Court made the following: ORDER i I i l IN THE HIGH COURT FOR THE STATE OF TELII IGANA AT HYDERABAD THE HONOURABLE SMT. JUSTICE K' SUJI' IA CRIMINAL PETITION No. 1O8OO of 2o25 DATE: O8. 12. 2O25 BETWEEN: Ms. Aisha Ndun,imana .....
petitione| accused And The Superintendent of Customs, Cirstoms C o rn rn is sio ne rate, GST Bhavan. Basl'reerbagh, Hyderabad, 5O0004. - Respondent/co plai Irant ORDER This Criminal Petition is hled praying this Court to enlarge the petitioner on bail who is arrayed as zu cused in S. C. NDPS No. 104 ol 2023 on the hle of the learn€ 1 Special sl<s,J Crl. P. No. lOaOO of 2O25 Sessions Judges for Trial of Cases under NDPS Act at L. B. Nagar, Ranga Reddy District at Hyderabad, registered lor thc offence punish. rble 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 appcaring on behalf of the petitioner as well as Sri Dominic Fernandes, Iearned Standing Counsel appearing on behalf of the respondent. 3. Learned counsel for the petitroner submitted that the petitioner is a citizen of Burundi was intercepted at Rajiv _ Gandhi International Airport on O2. O7 .
2023 and allegedly found with 2O27 grarns of heroin concealed in her luggage, though she denied knowledge of the contraband and asserted absence of mens reo as required under Sections 21, 23, and 29 ol th,e 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 righl to be searched before a magistrate or Gazetted ofhcer, and Crt-P. No I )tOO of 2025 pr rvritten violation ol Section 42, u'hich requires i,r supp rrt of his authorization for conducting searches- In tre placed reliance on State of )unjab v. submissions, Balbir Singhl, K. K. Verma v. Union of India2, . nd State of Rajasthan v. Parmanand3, u'hich held t lat such violations rcnder [he evidence inadmissible. He a r gued that any statement recorded under Section 67 of the \DPS Act rvas inadmissible in tight of the ruling of tll: Hon'ble Supreme Court in Tofan Singh v.
State of Tao ,il Nadua, unless corroboratcd by independenL evidence. 4. Learned counsel for the petitioner cont') rded that although the seized quantity exceeded the l rmmercial threshold under Notihcation S. C). 1055(E) dated 1 1. 10. 2001 (small quantity for heroin being 5 grams and : rmmercial quantity 25O grams), the petitioner had no kr < wledge or intent to traffic narcotics, and her role was limitr: t, possibly i due to coercion or hnancial exploitation. e further contended that the petitioner had no pric'r criminai antecedents, had been wrongfully implicated, anJ was not a ' 1tssa1 : scc zss ' 1rsss1 9 scc a+a '1zot+1 s scc:+s " (zozr) + scc r t. '1 crl-p. No. 10ao0 0f2025 habitual offender. The investigation was substantially completed, r. vith seizure, questioning, and hling of thc charge shect alrcady done, making her continued detent ion unnecessary.
He furthcr conlended that thete are defects in the panchanama and documentation, including lack of proper idcntification of witnesses, absence of independent and neutral r,",itnesses, failure Lo maintain chain of custody, contradictions betv,een the panchanama and investigation reporl, improper scaling and handling of narcotics, absence of videography or photographic evidence, and failure to record the petitioner's legal rights and contended that these lapses undcrmined the credibitity of the case o[ the prosecution. 5- Learned counsel for the petitioner further contended that, on humanitarian grounds, the petitioner was a single mother rvith 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 ofhcer, and abide by any conditions imposed by the Court, thereby eliminating concerns of flight risk. Judicial Crl. P. No.
1C ioo of 2025 r\ Petition 1s 8958 precedents $'cre citecl, including Criminal of '2023 of the Telangana Hi: r Court' of 2024 and 5362 rt. hercbzrilrr. asgranledtoforcignnationalsinNl))Scases and lack of direct :vidence' involving procedural violations Act' Section 37 of the ll )PS He further submitted that for bail n cases which imposes stringent condilions involving commercial quantities, should not t r rlgidly appliect in her case given the absence of intent' l:: Lou'1edge' bail or conspiracy. Thcrefore, he prayecl the Court to ;rant this Criminal Petitiou to the petitioner by aliowing standing couni :1 for the 6. On the other hand, learned respondent submitted that the petitic 1er was had Air rort rvith dpprehended at Rajiv Garidhi international in her baggzrll , thereby 2027 grams of heroin concealecl 2 2 l under Sections 8(c), 1 25A, 2a committing olfences ' 1985 and that her owr statement and 29 of the NDPS Act, collusion with an unknown dated O2. 07 .
2023 revealed knowingly Mr. Sanday, and that she Kenyan lady and one tion, thus agreed to carry narcotics for monetary considt:lz mental state' He emphasi:;r d that the establishing culpable strictly in t omplialce search and seizure were conducted t crl. P. No. 1O8O0 of 2()25 with Section 50, as thc petitioner was informed of her rights and the proceedings were carried out in the presence of a Gazetted Officer, a lady ofhcer, and lady panch witnesscs. He further submitted that Section 42 empowered the clrstoms officers to conduct the search and arrest without lr,arrant, arrd that the petitioner's claim of procedural lapses was unfounded. He contended that the contraband was properly inventorised under Section 52A, samples u,ere drawn belore the Magistrate, and laboratory reports conlirmed the seized substance as heroin and that being a foreign national, the petitioner was a flight risk, and her release would hamper investigation and adversely affect national security and economy.
He further contended that Section 37 of the NDPS Act imposed stringent conditions for bail in cases involving commercial quantity, and the petitioner failed to satisry the trvin requirements of proving that she was not guilty and that she would noL commit an offence while on bail. 7 . In support of his submissions, he placed rehance on a catena of binding precedents which uniformly held that bail under the NDPS Act is an exception and denial is the rule. sKs'J Crl. P. No. 10 IOO of 2025 In Customs v. Almadalieva Nodiras' State ol M. P. v. d Didier Kajad6, Ram Samujh v. State of HaryanaT, Durar v. Chief Secretary, Goa8, and State of Punjab t . Baldev Singhe, the Supreme Court underscored the slrir gent bar under Section 37 and emphasized that indivtcirt rl tibertY S CASCS.
must yield to larger public interest in narccrt L' Further reliance r,r'as placed on NCB v' Mohit Ag garwallo, of invest gation or where the Court clarified that complction hling of charge sheet is not sufficient to satisfS' S'r ction 37; which l . e1d that Union of India v. Rattan Malikl1, trial o\( prolonged custody or delay in cannot rride the v' Lalrintlung r Sailo12, statutory bar; State of Meghalaya grounds such as i I ]CSS AS which rejected humanitarian quantity cases; Statt: of Kerala basis for bail in commercial that Section 50 appl es only to v. Prabhul3, which reiterated personal search and not baggage; and NCB v' Kashilaa, and grant rvhich emphasized that negation of bail is the rul : 'lzozty tz scc aoz u lzoot; z scc ozr ' 1rssa1 s scc oos '1rsso1 t scc ss '1r9ss1 o scc tzz a sccll. 3 'o lzozzl (zoog) z scc 6z+ " e scc r " lzoz:1 " lzozzl zsccl2t 1zozz1 1z scc t 'o >> E: I Crl. P. o.
IOaOO of 2025 is an exception, with the tlvin conditions under Section 37 being cumulative and mandatory and in Union of India v. Shiv Shanker Kesarils and again in NCB w. Mohit Aggarwall6, the Court held that statements under Section 67, even if retracted or alleged to be coerced, are matters for trial and cannot alone justify bail. Therefore, hc submitted that in the absence of antecedents, prolonged custody, completion of investigation, or humanitarian considerations cannot entitlc an accused to bail in NDPS cases involving commercial quantity unless the strict twin conditions of Section 37 are satished. Therefore, he prayed the Court to dismiss the Criminal Petition. 8. In the tight of the submissions made by both the learned counsel and upon perusal of the material available on record, it appears that the contraband seized from the petitioner amounts to a commercial quantity of heroin.
Therefore, the entitlement of lhe petitioner to bail has to be examined in view of the rigour of Section 37 of the NDPS Act, 1985, which mandates that before granting bail, the " 1zooz1 z scc zsa '" 1202t1 + scc-tt3 Crl. P. N) tOSOO of2025 Court musl be satished that there are reasonabler lrounds to believe that the accused is not guilty of thc alie g :d oil-ence and that she is not likety to commit any offen(: n4'rile on bail. 9. [n the presenl case, a huge commercial c uantiry* of heroin weighing 2027 grams was seized from th: pctitioner at the airport. Though the petitioner contend( ( that she was not in conscious possession of thc said drl 1 , her own statement recorded under Section 67 of tht: {DPS Act revealed that she had agreed to transport the cont 'aband for monetary consideration offered by a Kenyan lacl , ar-rd she admitted that she was carrying the bag contain ng heroin concealed in African dresses, soaps, and a hanc bag.
The learned counsel for the petitioner relied on Tofar Singh v. State of Tamil Nadu (cited supra) to corl end that confessional statements under Section 67 are io.. lmissible; however, as held in subsequent judgments incluJ ng Mohit Aggarwal (cited supra) arrd Union of India v. Sh i' 'Shanker Kesaril7, the admissibility of such statements is a matter " 1toot1 I scclsa e\ Crl. P. I{o. 1O8OO of2O2S . :. ,; for trial, and at the stage of bai1, the Court cannot discard them outright 10. It is the further contention of the learned counsel for the petitioner that the search nas vitiatcd for non-compliance with Section 5O of the NDPS Act. However, the counter affidavit ltled by the respondcnt demonstrated that the search and seizure were conducted in accordance with law, thereby satisfying the statutory requirements. Moreover, as clarificd in State of Kerala v. Prabhul8, Section 50 applies on. ly to personal search and not to baggage carried by the accused.
This position rvas reiterated in Sura v. State of Gujaratls and SK Raju w. " State of West Bengal2o, holding that recovery from baggagc does not attract Section 5O 1 1 . The petitioner also urged that she had no criminal antecedents and sought bail on humaniLarian grounds. However, as consistently held rn Jaseer SM v. State of '" lzozll z scc tzt " 1t9991 8 scc +os 'o (zora) g scc uog Crl-P. No. 1 )8OO of 2025 State Kerala21, Union of India v. Rattan Malik, anrl of Meghalaya v. Lalrintlunga Sailo, absence of at ecedents. prolonged custody, or humanitarian consideratic'r s cannoL override thc statutory bar under Section 37 ol I DPS Act. The Hon'ble Supreme Court in Ram Samujh v' State of Haryana, State of M. P. v. Kajad, Customs v' Alr radalieva 'reld that Nodira, and NCB v.
Kashif has consistentl'r' negalion of bail is the rule and its grant is an e < :eption in NDPS cases involving commercial quantit5r' The r xpression "reasonable grounds" under Section 37 requires ;omelhing more than prirno satisfaction and it cc I templates facie sed is substantial probable cause to believe that the a<:c i not guitty ln the present case, given the recovell cf a huge commercial quantity of heroin from the baggz ge of the be recorded' petitioner, such satisfaction cannot 12. In view thereof, this Court is not satishec that there are reasonable grounds to believe that the petlt i( ner is not guilty of the alleged offence or that she is n: - likely to commit any offence while on bail. The plea o1 nnocence, lack of antecedents, or humanitarian grounds ca r not entitle " lzozzy s scc:as Crl. P. No. 1O8OO of2025 her to bail in view of the statutory bar under Scction 37 of the NDPS Act 13. Thereforc, the Criminal Pctition is dismisscd.
However, as the investigation was complcted and charge sheet was hled, the trial Court is directed to cxpeditc the proceedings and dispose of the case at tl're earlicst, kceping in view the mandate of Section 36A of the NDPS Act. + Miscellaneous applications, if anr. pending, sharll stand closed. SD/-M. NAGAMANI SSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, under at L B' 1. The Special Sessions Judge for Trial of Cases NDPS Act Nagar. RangareddY District GST Bhavan' 2 The Suoerintendent of Customs, Customs Commissionerate' Basheeibagh, Hyderabad-500004 3. One CC to Mr. MD FASIUDDIN, Advocate [OPUC] (senior standing counsel for 4. One CC to SRl. DOMINIC FERNANDES CBIC) Advocate [OPUC] 5. Two CD Copies RC/PSL \"V HIGH COURT DATED: 0811212025 t. E S Ii ORDER L1 / 2 I JAl{ 2026 z t o CRLP. No. 10800 of 2025 * , p. rT Accordingly, this Griminal Petition is Dis missed *d9 \k-,,,4t 6. e*
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