Mumbai, September 29, 2022 – Zalwango Moureen @Anita, an accused in a Narcotic Drugs and Psychotropic Substances (NDPS) Act case, has had her bail application rejected by Additional Sessions Judge V.G. Raghuwanshi. The court cited the seizure of a commercial quantity of Mephedrone (MD), the accused’s foreign nationality, and the lack of address proof as primary reasons for denying bail.

Moureen was arrested on April 28, 2022, in connection with Special LAC No. 14/2022, later registered as Special LAC/C.R. No. 31/2022 at Vakola Police Station, Mumbai. She was charged under Section 8(c) read with Section 22(c) of the NDPS Act, 1985, for possession of 230 grams of Mephedrone (MD).

Prosecution’s Case:

The prosecution alleged that Moureen, a Ugandan national, was apprehended with 230 grams of Mephedrone (MD) in her possession at Shivnagar, Kalina, Santacruz (East), Mumbai, on April 27, 2022.

Defense Arguments:

Advocate Vimal Jha, representing Moureen, argued that:

• The allegations were false and unsupported by evidence.
• The seized contraband was not tested using a field test kit.
• The prosecution lacked evidence beyond Moureen’s statement.
• Moureen was a mother of two small children and an HIV-positive individual with health issues.
• She was not involved with the seized drugs.
• There was non-compliance with Sections 42 and 50 of the NDPS Act.
• The search was done by a Police Naik, which is not a high enough rank per section 42 of the NDPS Act.

Prosecution’s Stance:

APP P.J. Tarange, representing the State, opposed the bail application, arguing that:

• The search was conducted by a Police Inspector with the assistance of a female police officer.
• Only Moureen’s bag was searched, not her person.
• The seized 230 grams of Mephedrone (MD) constituted a commercial quantity, making the stringent provisions of Section 37 of the NDPS Act applicable.
• Moureen is a foreign national with no information regarding her visa or passport, and she may be a member of an international drug trafficking gang.
• No address proof has been provided by the accused.
• The question of compliance of section 42 of the NDPS Act can only be considered during the trial, and not at the bail stage.

Court’s Observations and Decision:

Judge Raghuwanshi made the following observations:

• The court found that the Police Inspector had complied with Section 50 of the NDPS Act by informing Moureen of her rights and obtaining her written consent for the search.
• The search was conducted on her purse, and not her person, and therefore the court found no violation of section 42 of the NDPS act.
• The seized quantity of Mephedrone (MD) was a commercial quantity, triggering the stringent provisions of Section 37 of the NDPS Act.
• Moureen’s foreign nationality, the lack of information regarding her visa or passport, and the absence of address proof raised serious concerns about her legal status and potential flight risk.

“In this case commercial quantity of Mephedrone (MD) was seized from purse of applicant/accused. Therefore, rigours of section 37 of the NDPS Act would come into play in this case. Applicant/accused is not Indian national. Prosecution contends that, there is no information about visa and passport of applicant/accused. Therefore, there is grave doubt about legality of her stay in India. There is nothing on record to show permanent address of the applicant/accused. In such circumstances, this is not a fit case to exercise discretion in favour of applicant/accused,” Judge Raghuwanshi stated in his order.

Outcome:

The bail application was rejected.

Implications:

This decision highlights the court’s strict approach in NDPS cases involving commercial quantities of drugs, particularly when the accused is a foreign national with uncertain legal status. The court’s emphasis on the stringent provisions of Section 37 of the NDPS Act and the concerns about flight risk underscores the challenges faced by foreign nationals seeking bail in such cases. The court also made it clear that the compliance of section 42 of the NDPS act is a matter to be considered during the trial.