Order 16

Order Details: COPY OF ORDER
Pdf Text: IA1/25 SC398/22
NCB VS ANDREW MWAURA
05.12.2025
Present: Sh Harssh, Ld proxy counsel on behalf of Sh Arun
Khatri, Ld SPP for NCB.
Sh. Amar Phogat, Abhishek Gautam and Jitender
Sehrawat, Ld. Counsels for applicant/accused.
IO/SI Sachin Kumar in person.
NCB has filed the reply. Copy supplied.
Arguments heard.
Put up for orders at 04.00 pm.
(Atul Ahlawat)
ASJ/Spl. Judge, NDPS/N. Delhi
05.12.2025
At 04.00 pm
Present: Sh Harssh, Ld proxy counsel on behalf of Sh Arun
Khatri, Ld SPP for NCB.
Sh. Amar Phogat, Abhishek Gautam and Jitender
Sehrawat, Ld. Counsels for applicant/accused.
Vide my separate order of even date, the present
application is allowed and disposed of accordingly.
Copy of the order be given dasti as well as be sent to
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jail superintendent for supplying the same to accused in jail.
(Atul Ahlawat)
ASJ/Spl. Judge, NDPS/N. Delhi
05.12.2025
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IN THE COURT OF ATUL AHLAWAT
ADDL. SESSIONS JUDGE, NDPS ACT (SPECIAL JUDGE)
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
IA1/25 SC398/22
NCB VS ANDREW MWAURA
05.12.2025
ORDER
1. Vide this order I shall dispose of the bail application u/s
483 BNSS, 2023 moved on behalf of accused/applicant Andrew
Mwaura 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 06.03.2022,
after the secret information was received by the NCB official
regarding the arrival of the applicant/accused, who is a Kenyan
national and that he would be arriving in India from Addis
Ababa, Ethiopia via Ethiopian Airlines Flight No. 688. The said
information was received at the NCB office and as per the said
information, the applicant/accused would be arriving in India
after swallowing the capsules containing the contraband.
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 ET688, 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 he had allegedly informed the NCB officials that he had
swallowed the capsules containing the contraband and requested
for medical attention for removing the foreign body from his
stomach. He was then taken to Safdarjung hospital and after his
X-ray and medical examination, it was confirmed by the
concerned doctors that he had foreign body in his alimentary
system.
5. It is submitted by the Ld. Counsel for applicant/accused
that although the NCB had shown his arrest to have taken place
on 15.03.2022, however, he was illegally detained since
06.03.2022 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.
6. It is further submitted by the Ld. Counsel for
applicant/accused that prior to conducting his X-Ray and the
medical procedure no notice u/s 50 of the Act was issued to him.
The Ld. Counsel has placed the reliance on the decision of
Hon’ble Supreme Court of India in “State of Himachal Pradesh
vs. Pawan Kumar” AIR 2005 SC 2265.
7. It is submitted by Ld. Counsel for the applicant/accused
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that in the present case there has been blatant violation of Section
103 of Customs Act, since, the NCB officials had reasons to
believe that the contra-band was concealed by the
applicant/accused inside his body, yet no notice U/s 103 of the
Customs Act was served upon him, prior to taking him to
Safdarjung Hospital. The subsequent alleged recovery of
capsules was hence not in accordance with the procedure
prescribed under the law. Ld. Counsel has placed the reliance on
the decision of Hon'ble High Court of Delhi in ‘Customs v.
Jaurah & Anr.’, 2018 (2) LRC 155 Delhi.
8. It is submitted by Ld. Counsel for the applicant/accused
that there has been non-compliance of mandatory Section 52 A
and the Standing Orders 1/88 and 1/89 in the present case, since
the contents of all the packets were homogeneously mixed, prior
to weighing them and taking out the representative samples from
the entire mixture. Therefore, the entire seizure is vitiated. Ld.
Counsel has placed reliance on the decision of Hon'ble High
Court of Delhi in ‘Laxman Thakur v. State’, Bail Application
No. 3233/2022 dated 14.12.2022.
9. 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 after
swallowing 100 capsules containing the contra-band. He was
admitted at Safdarjung hospital and from the said recovered
capsules, 1.090 kg of cocaine was found. As soon as he was
discharged from the hospital on 14.03.2022, the notice u/s 67 of
the Act was issued to him and he appeared before the NCB office
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on 14.03.2022 itself voluntarily. Thereafter, his statement was
recorded voluntarily and his arrest was legally effected on
15.03.2022 and he was duly produced before this Court within 24
hours of the arrest and the mandatory compliance of article 22 (2)
of The Constitution of India and other relevant provisions of the
Act was duly made. The requirement of production before the
Ld. MM within 24 hours do not apply to a patient under medical
emergency, 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.
10. I have carefully perused the decision of Hon'ble High
Court of Delhi in Habiob (supra) and the facts of the present
case are fully covered under the ratio of said judgment. There
was a specific intelligence/prior information received by NCB on
one day prior to his arrival in India. He was detained upon arrival
in India on 06.03.2022 itself. He was taken from the airport to the
hospital and there was no authorization for the continuous
custody. 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 from 06.03.2022 till his production
before this Court on 15.03.2022. Therefore, his arrest on
15.03.2022 stands vitiated. Therefore, in view of the decision of
the Hon'ble Supreme Court of India in ‘ED Vs Subhash
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Sharma’, Neutral Citation:2025:INSC:141, 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. Furthermore, the mandatory
notice u/s 50 of the act was not served upon him, since the
abdominal search in the form of X-ray falls under the definition
of ‘search of person’, as per the law laid down by the Hon’ble
Supreme Court of India in “State of Himachal Pradesh Vs.
Pawan Kumar” AIR 2005 SC 2265, therefore, in the considered
opinion of this court, the present applicant/accused has made out
his case for grant of regular bail to him.
11. Furthermore, there is merit in the submissions of Ld.
Counsel for applicant/accused that there is non-compliance of
Section 103 (1) of Customs Act, since, as per the said provisions,
if there was reason to believe that person has any goods which
are liable to confiscation, ‘secreted inside his body’, he may be
detained and produced without unnecessary delay before the
nearest Magistrate. If the Magistrate sees no reasonable ground
for believing that such person has any goods secretively present
inside his body, he shall discharge the person, however, if there
are reasonable grounds to believe otherwise, he may make an
order that body of such person be screened or X-rayed. Reliance
is placed on the decision of Hon'ble High Court of Delhi in
‘Dawood Rasauli v. NCB’ Bail Application No. 2602/2024,
date of decision 25.10.2024.
12. Since, the mandatory statutory procedure as enshrined in
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Section 50 NDPS and Section 103 Customs Act is not followed
in the present case and his Fundamental Right under Article 21
and 22 of the Constitution of India is violated as he was not
produced before the Ld. Magistrate or this Court within 24 hours
of detention. Therefore, the applicant/accused 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.
(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
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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) He shall register himself with the FRRO, within two
weeks of the date of his 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 his bank account.
13. Nothing stated herein shall tantamount to any expression
or opinion on the merits of the case.
14. The application under Section 483 BNSS, 2023 moved on
behalf of applicant/accused Andrew Mwaura for grant of regular
bail is accordingly disposed of as allowed.
15. Needless to say, that nothing expressed herein shall have
any effect on the merits of the case.
16. Copy of this order be sent to Jail Superintendent,
concerned for necessary intimation to the applicant/accused.
17. Application is disposed of accordingly.
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18. 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/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/05.12.2025
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