Despite Procedural Irregularities - Deleted Images, Name on Parcel and Reverse Burden — Petitioner Must Explain Her Role — Calcutta High Court Declines Bail Under NDPS Act

Calcutta High Court refused bail to a woman accused of being part of an international drug racket. The Division Bench comprising Justice Apurba Sinha Ray and Justice Arijit Banerjee observed, “Even, if we do not consider such statements of the petitioner recorded at the instance of NCB personnel, we find that there are sufficient incriminating materials which prompt us to hold that the petitioner is to answer certain queries to rebut or discharge the reverse presumption.” 
 
The Court reiterated that in offences under the NDPS Act, bail considerations are subject to strict statutory requirements and procedural irregularities alone will not tilt the balance if prima facie materials indicate involvement. 
 

The petitioner, a qualified nurse with no prior criminal antecedents, was arrested after a parcel containing commercial quantity of amphetamine, weighing around 2.170 kg, was seized at the Kolkata Foreign Post Office. The parcel was addressed to her and also contained her mobile number. The petitioner argued that the consignor was a stranger to her and she had neither tracked the parcel nor communicated with anyone about it. She emphasized that no recovery was made from her residence in Mizoram and that the NCB was relying mainly on her alleged confessional statement recorded under Section 67 of the NDPS Act, which is inadmissible following the Supreme Court decision in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1. 
 
The petitioner further pointed out that there was no compliance with Section 52A of the NDPS Act, as no sample or inventory certification was prepared in the presence of a Magistrate. She also highlighted that crucial electronic evidence was incomplete as the HASH certification required under the Bharatiya Sakshya Adhiniyam, 2023 was missing, and the forensic report of her mobile was not filed along with the charge sheet. 

The Court unambiguously stated, “It is not correct to say that the prosecution case is entirely dependent upon the confessional statement of the present petitioner under Section 67 of NDPS Act as alleged.” The Bench referred to direct material connecting the petitioner to the consignment, notably, the name and mobile number on the parcel, and the retrieval of parcel images from the petitioner’s mobile phone. The Court questioned, “If the said images were sent innocuously to the mobile phone of the petitioner why were such images deleted from her mobile phone?” 
 
While the petitioner tried to invoke procedural lapses, the Court citing Narcotics Control Bureau vs. Md. Kashif, 2024 SCC OnLine SC 3848, held, “Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail.” 
 
The Court further explained, “The purpose of insertion of Section 52A was to ensure early disposal of seized contraband drugs and substances. It was inserted as a measure to give effect to international conventions. Any procedural irregularity found to have been committed would by itself not make the entire evidence inadmissible.” 
 
Addressing the issue of reverse burden under Section 54 of the NDPS Act, the Court noted, “Prima facie show that she was conscious that one parcel was coming from outside India, and, therefore, she is under an obligation to discharge the onus at the time of trial that she was not aware of the contents of such parcel.” 
 
Justice Apurba Sinha Ray writing for the Bench observed, “As the materials on record show that even apart from the statement of the petitioner recorded under Section 67 of NDPS Act, there are other sufficient materials incriminating her and also the fact that some accused persons are still absconding and evading arrest, it is difficult to allow the petitioner’s prayer at this stage.” 
 
The Court further held, “The case diary discloses receipt of certificate from the competent authority under Section 65B of Indian Evidence Act. However, the issues that the certificate containing HASH values was not furnished to the petitioner or the forensic report of the mobile phone of the petitioner as submitted by CFSL, Hyderabad, was not annexed with chargesheet, are to be taken up during trial.” 
 
While refusing bail, the Court, however, directed the trial court to expedite proceedings considering that the petitioner has been in custody for a considerable period. 
  
The Court reaffirmed the principle that in NDPS matters, procedural irregularities cannot alone justify bail when substantial materials indicate conscious possession or involvement. The judgment demonstrates judicial restraint and adherence to the statutory mandate under Section 37 of the NDPS Act. 
 
The Court concluded, “We are not inclined to allow the prayer for bail of the petitioner at this stage... The bail petition is rejected without any order as to costs.” 

Date of Decision: 28th March 2025