Order 25

Order Details: COPY OF ORDER
Pdf Text: IA 1/25 SC 276/21
NCB VS Kulwa Yohana Martine
06.10.2025
Present: Sh. Mukeysh Malik, Ld. SPP for NCB.
Sh. Rohan Gupta, Ld. Counsel for
applicant/accused.
Vide my separate order of even date, the present
application is allowed and disposed off accordingly.
Copy of the order be given dasti as well as be sent to
jail superintendent for supplying the same to accused in jail.
(Atul Ahlawat)
ASJ/Spl. Judge, NDPS/N. Delhi
06.10.2025
IA 1/25 SC 276/21
NCB VS Kulwa Yohana Martine
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IA 1/25 SC 276/21
NCB VS Kulwa Yohana Martine
06.10.2025
ORDER
1. Vide this order I shall dispose off the bail application u/s
483 BNSS, 2023 moved on behalf of accused/applicant for grant
of regular bail. Reply filed by the IO.
2. It is submitted by Ld. Counsel for the applicant/accused
that there is no other bail application preferred by the present
applicant/accused which is pending disposal before the Hon’ble
Supreme Court of India, before the Hon’ble High Court of Delhi,
or any other Court in the present case FIR.
3. It is submitted by Ld. Counsel for applicant/accused that
accused/applicant was apprehended at IGI airport on 19.04.2021,
the secret information was received by the NCB official
regarding the arrival of the applicant/accused, who is a Tanzanian
national and that he would be arriving in India from Qatar
Airlines via Qatar Airlines Flight No. QR578. The said
information was received on 19.04.2021 itself and as per the said
information, the applicant/accused would be arriving in India
carrying the contraband with him.
4. It is submitted by the Ld. Counsel for applicant/accused
that the applicant/accused was suspected to be carrying contra-
band and when he arrived in India by flight QR578, he was kept
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under the surveillance room situated at the arrival hall of IGI
airport. The identity of applicant/accused was confirmed from
him and upon checking her checked-in baggage, 5 kg of heroin
was recovered from the secret cavity in the said trolley bag.
5. It is submitted by the Ld. Counsel for applicant/accused
that although the NCB had shown his arrest to have taken place
on 06.00 pm on 19.04.2021, however he was illegally detained
since 19.04.2021 at 01.30 am i.e. after he was detained at the IGI
airport, upon arrival in India. The applicant/accused was not
produced before the Ld. JMFC within 24 hours, as contemplated
under article 22 (2) of the Constitution of India, thereby
rendering her detention, arrest and further custody illegal. The
Ld. Counsel has relied upon the decision of Hon'ble High Court
of Delhi in ‘Habiob Bedru Omer Vs Customs’, Neutral
Citation:2025:DHC:4870 and the decision of the Hon’ble High
Court of Kerala in “Biswajit Mandal Vs. Inspector, NCB”
MANU/KE/2529/2025.
6. It is further submitted by the Ld. Counsel for
applicant/accused that the previous application moved by the
applicant/accused was dismissed vide order dated 20.02.2025,
however, the said application moved by the accused the ground
of illegal detention was not raised by the then Ld. Counsel for the
applicant/accused and the Ld. Predecessor of this Court had only
dealt with the issue of delay in trial and there being no
videography/photography of the seizure and there being no
independent witness joined in the search and seizure proceedings.
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Since the said application being dismissed, the applicant/accused
has remained in further custody of over 7 months, which in itself
is material changing in the circumstances. The applicant/accused
is not involved in any other case and he is ready to abide with
any condition that this Court may impose upon him.
7. Per contra, it is submitted by the Ld. SPP for NCB duly
assisted by the IO that allegations against the applicant/accused
are extremely serious and he had entered into India alongwith 5
kg of heroin in his checked-in luggage. There has been full
compliance of the mandatory provisions of the law and the
applicant/accused was produced before this court on 20.04.2021,
after his medical examination was conducted at Safdarjung
Hospital on 20.04.2021 at 02.30 pm, within 24 hours of his
arrest. Furthermore, during that time, the locked down due to
covid-19 pandemic was duly inforce and the delay if any in
producing him for his medical was due to a curfew being
imposed by DDMA vide order dated 29.05.2021 and the
hospitals were full with covid – 19 patients at that time. The
requirement of production before the Ld. MM within 24 hours do
not apply, until the recovery of the contraband was complete. He
is a foreign national and if released on bail, he may abscond from
trial. Therefore, the NCB is strongly opposing the present
application.
8. I have carefully perused the decision of Hon'ble High
Court of Delhi in Habiob (supra) and Biswajit Mandal (supra),
wherein it has been duly held that the word ‘arrest’ when used in
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its ordinary and natural sense means the apprehension or restraint
or deprivation of once personal liberty. The question whether the
person is under arrest or not, depends not only the legality of
arrest, but on whether he was deprived of his personal liberty to
go wherever he pleases. The period of 24 hours to produce an
accused before the Magistrate commences not when the actual
time of arrest recorded by the investigating agency, however, it
runs from the time when the accused was effectively detained or
his liberty was curtailed.
9. Applying the ratio of the decisions cited above, the
applicant/accused was detained and taken into custody on
19.04.2021 at 01.30 am, upon his arrival at T-3, IGI Airport and
the susequent recoveries were made from his checked-in
baggage. The NCB has shown his arrest at 06.00 p.m. on very
same day i.e. after expiryt of around 14½ hours from the time he
was detained at the first place. Thereafter, the medical
examination was got conducted after another 20 hours at
Safdarjung Hospital and thereafter, he was produced before this
Court. Merely because the arrest memo was prepared at a later
stage, does not imply that he was not in the custody and was free
to leave. He was not produced before this Court or before the
Court of Ld. JMFC within 24 hours, which is mandated by article
22 (2) of The Constitution of India and also as per the provisions
of CrPC. Therefore, this Court is of considered opinion that he
was kept in illegal custody after the expiry of 24 hours period, till
his production before this Court on 20.04.2021. Therefore, his
arrest on 19.04.2021 stands vitiated. Therefore, in view of the
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decision of the Hon'ble Supreme Court of India in ‘ED Vs
Subhash Sharma’, Neutral Citation:2025:INSC:141 and “ED
Vs. Deepak Mahajan and Anr,” (1994) 3 SCC 440, as duly
quoted by Hon'ble High Court of Delhi in Habiob (supra), the
rights of the applicant/accused under article 21 & 22 (2) of The
Constitution of India are impinged and he has to be released on
bail despite the rigors of section 37 of the Act, therefore, in the
considered opinion of this court, the present applicant/accused
has made out his case for grant of regular bail to him. Hence, the
applicant/accused Kulwa Yohana Martine is admitted to
regular bail on following conditions :-
(i) On furnishing of personal bond of Rs. 1,00,000/- with
two sureties of the like amount, to the satisfaction of this
Court.
(ii) He shall deposit his passport, if not already
deposited/impounded and he shall not leave the country
without the permission of this Court.
(iii) He shall not try to tamper the evidence or hamper the
trial or try to influence the remaining witnesses, in any
manner.
(iv) He shall furnish his present and permanent address
with supporting documents along with an
affidavit/undertaking to inform any change thereof
without delay to the IO concerned.
(v) He shall mark his attendance in the NCB Office, on
the first Monday of each calendar month, till the trial is
completed.
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(vi) He shall not commit any offence, whatsoever, during
the period he remains on bail in the present case.
(vii) He shall attend the trial without any single default.
(viii) He shall be released subject to production of valid
passport and visa. If the visa is expired, same must be
applied online from the jail and the State shall provide all
necessary assistance. It is made abundantly clear that
until and unless valid passport and visa is produced, he
shall not be released on bail.
(ix) She shall register herself with the FRRO, within two
weeks of the date of her release.
(x) He shall obtain a SIM card in his own name, on the
basis of the passport and shall give the details of the
number to this Court and to the IO.
(xi) He shall inform the place of residence along with
valid proof and report any changes within one week, to
both the Court and IO.
(xii) He shall file an affidavit within two weeks of his
release on bail, stating the source of his funds and source
of income in India, giving details of her bank account.
10. Nothing stated herein shall tantamount to any expression
or opinion on the merits of the case.
11. The application under Section 483 BNSS, 2023 moved on
behalf of applicant/accused for grant of regular bail is
accordingly disposed of as allowed.
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12. Needless to say, that nothing expressed herein shall have
any effect on the merits of the case.
13. Copy of this order be sent to Jail Superintendent,
concerned for necessary intimation to the applicant/accused.
14. Application is disposed off accordingly.
15. Copy of the order be given dasti as well as be sent to jail
superintendent for supplying the same to accused in jail.
(Atul Ahlawat)
ASJ/Spl. Judge, NDPS/N. Delhi
06.10.2025
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