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CASE NO.: Appeal (crl.)  1042 of 2001

PETITIONER: Narcotics Control Bureau, Mumbai                               

RESPONDENT: Vs. Abdullah Hussain Juma & Anr.                                 

DATE OF JUDGMENT: 30/07/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT:

                               J U D G M E N T

SANTOSH HEGDE,J.

       This appeal arises from the judgment of High Court of  Judicature at Bombay made in Criminal Appeal No.213 of 1997  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

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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

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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

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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.