NARCOTICS CONTROL BUREAU MUMBAI Vs. ABDULLAH HUSSAIN JUMMA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.