Narcotics Control Bureau, Mumbai vs Abdullah Hussain Juma & Anr

dated 4.12.2000 whereby the High Court allowed the appeal of the

respondent filed against the judgment of the learned Special Judge,

N.D.P.S., Greater Bombay, made in NDPS Special Case No.95 of

1994.

Brief facts necessary for the disposal of this appeal are as

follows :

On receipt of certain secret information that some passengers

travelling by the Ethopian Airlines on 8.3.1994 were suspected to be

carrying some contraband with them, the concerned Customs

Officers detained 9 suspects after they had completed their

immigration formalities. On a personal search made by the said

Officers as also a search of the checked-in baggages of the said

passengers at the airport, nothing incriminating was found. Since the

Officers suspected that narcotic drugs may have been concealed in

the body cavities of the said passengers, they were asked by the

Officers whether they were willing to be examined by a doctor and

on their agreeing to the said proposal, the said passengers were

brought to the office of the Narcotics Control Bureau (NCB) at

Ballard Pier, and thereafter were taken to J.J. Hospital where the

doctors were told that the said passengers were brought to the

hospital for radiological examination as the Officers suspected the

said passengers to be carrying narcotics concealed in their body

cavities. On such radiological examination, it was revealed that the

passengers' bodies did contain certain foreign substances, therefore,

they were then brought again to the office of the NCB where they

were arrested and the grounds of arrest were made known to them.

They were also produced before the Special Judge and a remand was

obtained. Thereafter they were again taken to J.J. Hospital where

they were admitted in Ward No.19 for further examination.

It is further the case of the prosecution that so far as the

present respondent is concerned, during his stay in the hospital

between 8th and 16th March, 1994, he purged 41 capsules made of

black insulation tape inside which small polythene bags were found

containing certain powder. One such capsule so purged by the

respondent was opened for testing with the help of field testing kit

which, according to the prosecution, proved positive for heroin. On

further examination, it was found that each of such packet contained

5 grams of heroin, therefore, all the remaining packets were put into

a larger polythene bag and sealed in the presence of the Panchas.

The prosecution further avers that on the samples being sent to the

Deputy Chemist Laboratory, New Customs House, Mumbai, the

Chemical Examiner found that the capsules contained Dyacetyl

Morphin i.e. heroin. Thereafter, a complaint was filed in the Court of

the Special Judge against the said passengers including the

respondents herein and charges under Section 8 (c) read with

Section 21, Sections 28 and 23 of the NDPS Act (for short 'the Act')

were framed against the accused. The trial court, as stated above,

came to the conclusion that the prosecution had established its case

against the accused and sentenced them including the respondents

herein to undergo RI for a term of 3 years and also to pay a fine of

Rs.1 lakh; in default of which to further undergo 6 months' simple

imprisonment. On appeal, as stated above, the High Court disagreed

with the trial court and set aside the conviction and sentence

imposed on the accused.

It is the case of the prosecution that since other accused apart

from the respondent herein, had left the country by the time the

appeal was preferred, this appeal is confined only to the respondent

herein who could not go out of the country for various reasons. In

the impugned order, the learned Judge of the High Court came to the

conclusion that the prosecution had failed to comply with the

mandatory requirement of Section 50 of the Act by not informing

the accused of his right to be searched by a Gazetted Officer or a

Magistrate. The High Court also accepted the contention of the

respondent herein that since a copy of the seizure Panchnama was

not given to the accused, there was violation of the requirement of

Section 100(7) of the Cr.P.C. It also came to the conclusion that

since the accused was not given a copy of the inventory maintained

by the J.J. Hospital in regard to the contraband capsules allegedly

collected by the prosecution after the same were purged by the

accused, there was infraction of sub-sections (6) and (7) of Section

100 Cr.P.C. The High Court also accepted the argument advanced

on behalf of the accused that though the sample of the contraband

was taken by the prosecution on 6.3.1994, the same was not sent to

the laboratory for chemical analysis till 21.3.1994 during which time

the Investigating Officer had the seal used on the sample bags with

him, therefore, there was a possibility of the samples sent to the

laboratory being tampered with. Further, the High Court came to the

conclusion that the prosecution has failed to establish that the 41

capsules containing contraband were actually seized from the

respondent-accused herein because nobody who was involved in the

process of collecting such capsules after the same were purged by

the respondent-herein and responsible for handing over the same to

the Investigating Officer was examined. Thus the prosecution has

failed to establish beyond reasonable doubt that the capsules

containing the contraband sent to the chemical examiner were in fact

purged by the respondent herein so as to establish the fact that this

respondent-accused actually had concealed the said 41 capsules in

his body cavity. It is on the basis of these findings that the High

Court allowed the appeal, setting aside the conviction and sentence

imposed by the trial court on the respondent-accused.

Mr. P.P. Malhotra, learned senior counsel for the appellant,

strenuously contended that the finding of the High Court that there

has been a violation of Section 50 of the Act is wholly erroneous

since the said Section did not apply to the facts of the case. He

contended that the need to inform an accused of his right of being

searched by a Gazetted Officer or by a Magistrate arises only when a

personal search of the accused is made by such concerned Officer.

He contended that Section 50 did not apply to cases where a doctor

who is not one of the persons mentioned either in Section 42 or

Section 50 of the Act is undertaking a physical examination of the

person of the accused. He also contended that the other findings of

the High Court in regard to non-supply of seizure Panchnama, delay

in sending the sample for chemical examination are the irregularities

of such nature which would not vitiate the seizure actually made by

the prosecution. He submitted that the prosecution having examined

the doctor of the J.J. Hospital who in his evidence having clearly

stated that an inventory was maintained in regard to recovery made

pursuant to the the daily purging by the respondent-accused and the

capsules so collected having been kept separately which were later

put in a sealed bag in the presence of Panchas would clearly show

that the contraband in question was in fact purged by the respondent-

accused and the same was subsequently collected and seized in

accordance with law. Therefore, the High Court was in error in

finding fault with the seizure of the contraband from the respondent-

accused.

Mr. Bimal Roy Jad, learned counsel appearing for the

respondent, while supporting the judgment of the High Court,

contended that whether the search is made by a doctor or a Police

Officer, the mandatory requirement of Section 50 has to be complied

with which not having been done in the instant case, the seizure

made by the accused becomes illegal, hence, no conviction could be

based thereon. He also supported the judgment of the High Court on

other grounds on which the learned Judge had found that the

prosecution had failed to establish the charges levelled against the

respondent.

As seen above, though the High Court has given a number of

reasons for allowing the appeal filed by the respondent-accused

before it, on the facts and circumstances of this case, we find it not

necessary to go into all the points urged before us because we are in

agreement with the finding of the learned Judge of the High Court

on the question that the prosecution has failed to establish that the 41

satchets recovered by it are really the ones which were allegedly

purged by this respondent-accused. While discussing this fact, we

have to bear in mind that there were 9 accused persons who were

intercepted at the airport by the NCB Officers on 8.3.1994. All these

9 persons were brought to the hospital and subjected to radiological

test and were suspected of having concealed certain foreign

substance in their body cavity. Evidence of Dr. Algotar, PW-3,

shows that all these accused persons were kept in the hospital

because it was thought that they would in due course of time, purge

foreign substance from their bodies. He also states in his evidence

that arrangements were made by the hospital authorities in regard to

each of these accused persons to facilitate them to purge the foreign

substance from their body cavities and these persons were kept

under observation. He also stated that each of these accused persons

was provided with a toilet pan and every time the accused persons

purged the sachets, they were collected, cleaned by the sweeper of

the hospital and handed over to the Resident Doctor. It is thereafter

according to this witness the sachets purged by each of these

accused persons were collected, sealed and sent for chemical

examination. But we notice from the evidence of PW-3 that he was

not personally present when these sachets were recovered after they

were purged by the concerned accused nor when the sachets after

collection and cleaning, were handed-over to the Resident Doctor,

therefore, this witness is not competent to say that the 41 sachets

collected from the respondents-accused are the very same sachets

which he had purged and not those which the other accused might

have purged. The appropriate person who could have spoken about

this fact of purging by the respondent-accused, was the sweeper who

collected the said sachets. He has not been examined nor the

Resident Doctor to whom these sachets were given after cleaning

every time the same were purged was also not examined by the

prosecution nor is there any material to show that as and when these

sachets were purged, they were kept separately from the other

sachets which were also similarly purged by other accused persons.

Therefore, there is a serious doubt as to the identity of the sachets

actually purged by the respondent-accused. Learned counsel for the

appellant, however, contended that it is seen from the evidence of

PW-3 that a proper inventory was maintained by the hospital as and

when sachets were recovered from the respondent-accused but, as

noticed by the High Court, it is seen that the so-called inventory

maintained by the hospital is not signed or attested by any of the

officials of the hospital nor any person who really maintained the

said inventory, has been examined in this regard. Even the Panch

witness PW-4, who had signed the Panchnama for the recovery of

the alleged sachets from the respondent accused, has not fully

supported the prosecution case. In this background, we agree with

the High Court that the prosecution has not established beyond

reasonable doubt that the sachets which were collected on various

dates between 16th and 20th March, 1994, as a matter of fact, were

purged by the respondent-accused and not by anybody else. In such

factual background, we feel that the High Court was justified in

coming to the conclusion that the prosecution has failed to establish

the recovery of these sachets from the respondent-accused beyond

all reasonable doubt. In our opinion, this ground alone is sufficient

to sustain the judgment of the High Court, hence, it is not necessary

for us to consider the correctness of the legal argument as to the

applicability of Section 50 of the Act in regard to a search made by a

doctor. We leave this question open and in view of the fact that we

are in agreement with the finding of the High Court on a question of

fact namely the prosecution has failed to establish beyond all

reasonable doubt that the sachets sent to the Chemical Examiner are

the very same sachets recovered from the respondent. We think this

appeal has to fail and the same is dismissed. The bailbonds of the

respondent stand discharged.