Nigerian woman, in custody for 5 years, granted bail by Bombay High Court

The Bombay High Court has granted bail to a 45-year-old Nigerian woman who had been in custody for almost five years for a drug-related offence without a trial. While granting bail, the court observed that the Mumbai police officers of Amboli police station had not observed the procedure of taking a sample of cocaine for testing.

The case of the prosecution is that on February 9, 2019, encounter specialist, police inspector Daya Nayak had received a tip-off on cocaine being sold that day at a particular spot in the western suburb of Mumbai.

A trap was laid down and a Nigerian, Karla Iris, arrived at the spot around 9.50 pm and 225 grams of cocaine was recovered from her purse which was seized jn presence of panchas or independent witnesses.

A sample was drawn from the same seized material for testing, according to the prosecution.

Advocates Khushal Parmar and Arohi Majrekar, appearing for Iris, submitted that the samples were not drawn in the presence of the Magistrate and had not been certified by the Magistrate.

They said that this was a clear violation of provisions under Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act which states that the sample has to be drawn in the presence of a Magistrate who has to certify it.

There is no provision under the NDPS Act that mandates taking of a sample at the time of seizure on the spot itself.

Justice Anuja Prabhudessai agreed and said, "Non-compliance of the mandate under Section 52A prima facie makes the recovery suspicious. The applicant is a lady. She has been in custody for almost five years. It is stated that the charge is not yet framed. In such circumstances, it is evident that there is no possibility of the trial concluding within a reasonable period."

Justice Prabhudessai also looked through various judgements of the Supreme Court that said that "prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under NDPS Act.”

Under Section 37 of the NDPS Act, the court can grant bail to an accused only on being satisfied that there are reasonable grounds for believing that they are not guilty of such an offence and that the accused is also unlikely to commit any offence after being released from jail.