CARMEL SANCHEZ GRACIA Vs. CUSTOMS NEW DELHI

JUDGEMENT

(1.) This is an appeal against the order of the Additional Sessions Judge convicting the appellant under Sections 132 and 135(a) of Customs Act, 1962 Sections 20, 23 r/w Sections 28 of NDPS Act, 1985 whereby the appellant was sentenced to undergo rigorous imprisonment for 6 months with regard to violations of Sections 135 of Customs Act and 10 years rigorous imprisonment and a fine of Rs. 1 lakh or in default thereof a further R.I. of six months for offence U/S 20(ii) NDPS Act to undergo a similar sentence for the offence U/Section 23 r/w Section 28 of NDPS Act. The facts in brief leading to the impugned judgment are as under:

(2.) The appellant on the night between 4/5 June, 1993 was to leave Delhi for Bangkok by Thai International Flight No. TG-316 and was apprehended at the Delhi Airport. At that time, the appellant was carrying one small bag which was tied with the wheel of the trolley in her hand apart from two other bags which had been checked in. On being asked by the officers as to whether she was carrying any narcotics substance, she replied in the negative. On the customs officers' suspicion being arisen on account of look of the trolley wheels which looked heavy, he proceeded to take search thereof and also sent for the checked in baggage for search. The appellant has challenged the order of conviction and the sentence on various grounds. It will not be necessary to advert to all those in view of the discussion appearing hereinafter.

(3.) The search could be split into two parts, one relating to the checked in baggage and the other of the person and the trolley and bag which was carried by the appellant. In view of the recent judgment of the Hon'ble Supreme Court rendered in Special Leave Petition(Criminal) No. 3688/95 entitled N.F. Nawazar Vs. Union of India the search of the checked in baggage would not attract the provisions of Section 50 of NDPS Act. However, that judgment in terms says that if a person is carrying a hand bag or like and the incriminating article is found therefrom it would still be a search of the person and their lordships had clarified as under:-