TMI Blog2018 (1) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... r not? Held that: - The notices served upon the Respondents were not in conformity with the provisions of Section 50 of the NDPS Act and were merely an enquiry by the empowered officer to the Respondents. By these notices the respondents were not informed of their legal rights to be searched before the Magistrate or Gazetted officer. Further it is note worthy that PW13 Sh. Khalid A. Noori in his cross examination admitted that he did not know the meaning of words “Gazetted officer” and “Magistrate” in Persian. Since both the respondents were not conversant with English, the meaning of these two words was not conveyed to them in vernacular language by PW13. Looked from any angle the very purpose of notice under section 50 was defeated what to speak of compliance. Section 103 of the Customs Act provides for the power to screen through x-ray, bodies of suspected persons for detecting hidden goods. Section 103 of the Customs Act will apply when the body of the suspected person is required to be x-rayed. In the present case, the customs officers have opted to go for x-ray examination of the body of the Respondents, and, therefore, they had to follow the procedure laid down in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of Section 103 of the Customs Act, 1962 and the statements of the Respondents under Section 67 of the NDPS Act recorded by the investigating agency do not meet the legal requirements and as such the investigating agency defaulted on all the above aspects. 2. The case of the prosecution is that on 01.04.2010 at 12:45 pm, an information was received by Sh. D.C. Misra (PW8), Joint Commissioner, Air Customs, IGI Airport, New Delhi, that a person namely Jura (an Afghan national) and his accomplice (name not known) would arrive on the same day from Kabul by Ariana Afghan Airlines, Flight no. FG311, who were suspected to carry Heroin concealed in their baggage and in their bodies. Sh. D.C. Misra reduced the information into writing and forwarded the same to Sh. J.S. Kandhari (PW17), Assistant Commissioner, Air Customs, IGI Airport, who constituted a team consisting of Sh. S.C. Rawat (PW5) (Air Customs Superintendent), Sh. Prashant Prakhar (PW1) (Air Customs Officer), Sh. Amrik Lal (PW23) (Air Customs officer) and Sh. S.S. Hundal (PW22) (Air Customs Officer). On the basis of the above information, the said Jura (respondent No.1) was identified by the Customs officers after immigr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ang Hospital from 02.04.2010 to 09.04.2010 and during the said period, they had ejected a total number of 55 capsules weighing 382. 58 gm and 58 capsules weighing 586.67 gms respectively from their rectum. This recovery was made in the presence of doctors on duty, interpreter and two punch witnesses. The capsules recovered were sealed and deposited with the SDO (Arrival) of IGI Airport, New Delhi. 4. After the discharge of the Respondents from the hospital on 09.04.2010, they were taken to Customs office at IGI Airport, New Delhi for further enquiries. The recovered capsules were summoned from the SDO (Arrival) and the same were found in sealed condition. Thereafter, the examination of the aforesaid capsules was conducted and the same were found containing off-white coloured powdery substance. The net weight of the substance recovered from the capsules ejected by the Respondents Juarah and M. Walai was found to be 382. 58 gm and 586.67 gms respectively. On being tested, the substance was found positive for Heroin. Three samples each were drawn from the substance recovered from the capsules ejected by the respondents and the remaining substance of both respondents were kept separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the investigating agency under Section 103 of the Customs Act which was allowed vide order dated 01.04.2010. He argued by that the application under section 103 of the Customs Act was moved because the mode of concealment was not an ordinary one but it was a special mode of concealment i.e. concealment inside the body and a medical examination of the Respondents was required to recover the concealed articles. 9. He emphasized that the Trial Court failed to appreciate that due permission was obtained by the investigating agency from the Ld. Metropolitan Magistrate for the detection of the substance as concealed by the Respondents in their stomach. It was submitted that the Trial Court ought to have appreciated the special circumstances under which the recovery of the substance i.e. Heroine was made before the doctors of the Safdarjung Hospital as the process is life threatening in case of any burst of any capsule inside the stomach. 10. He urged that the medical examination of the Respondents and the recovery of the substance were made before the concerned doctors of Safdarjung Hospital and PW13 Khalid A. Noori. He emphasised that the concerned doctors have been duly ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his imme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be taken to a Gazetted Officer or nearest Magistrate for the purpose of their search, if they so required. 19. The Hon ble Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 while dealing with the effect of non-compliance and the requirement of strict compliance of the provisions of Section 50 of the NDPS Act, 1985 by the empowered officer held as under: 29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of suspected persons for detecting secreted goods.- (1) Where the proper officer has reason to believe that any person referred to in sub- section (2) of section 100 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before the nearest magistrate. (2) A magistrate before whom any person is brought under sub-section (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person. (3) Where any such magistrate has reasonable ground for believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed, he may make an order to that effect. (4) Where a magistrate has made any order under sub-section (3), in relation to any person, the proper officer shall, as soon as practicable, take such person before a radiologist possessing qualifications recognized by the Central Government for the purpose of this section, and such person shall allow the radiologis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall produce him before the nearest Magistrate. Sub-section (3) lays down that if the Magistrate has reasonable ground for believing that the suspect produced before him by the proper officer has any such goods secreted inside his body, he may make an order for getting the body of the suspect screened or xrayed for the purpose of discovering such goods. Sub-section (5) casts a obligation upon the radiologist before whom such suspect is produced, to forward his examination report alongwith the Xray pictures to the Magistrate without unnecessary delay. Sub-section (6) provides that upon receipt of the report of the radiologist, if the Magistrate is satisfied that such person has any goods liable to confiscation secreted inside his body, he may pass suitable direction for bringing out such goods. Sub-section (7) lays down that the Magistrate may order such person to be kept in such custody and for such period as he may direct. 24. It is not in dispute that the Customs officers had produced the respondents before the learned Magistrate on 01.04.2010 and sought permission for their medical examination. Vide order dated 01.04.2010 (Ex.PX), the Court had allowed the Customs officers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly, it is evident from the record that the alleged recovery of narcotic drug from the respondents was in violation of the safeguards provided in Section 50 of the NDPS Act as well as Section 103 of the Customs Act and thus, the same cannot be used as evidence of proof of unlawful possession of the contraband against the respondents. 26. The Appellant has lastly contended that the statements of the Respondents under Section 67 of the NDPS Act admitting their guilt are voluntary and they narrated the facts from their personal knowledge. The Respondents were detained on 01.04.2010 and their alleged statements under Section 67 of the NDPS Act were recorded on 09.04.2010 while they were in custody of the Customs officers. The custody of the Respondents herein till 09.04.2010 was without any order from the Trial Court and was against the provisions of law. It is a settled law that while weighing the evidentiary value of a statement under Section 67 of the NDPS Act, the Court should not lose sight of the ground realities and should take into consideration whether the confession was made under duress or was voluntary in nature. The alleged recovery from the Respondents was made from 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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