NARCOTICS CONTROL BUREAU MUMBAI Vs. ABDULLAH HUSSAIN JUMA

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 Ethiopian 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 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.