S V BHAT INTELLIGENCE OFFICER Vs. ANTHONY EBIE

JUDGEMENT

(1.) THE applicant NCB has filed this application for leave to file appeal against the judgment and order dated 17th July, 2006 passed by the learned Special Judge (under NDPS Act), City Sessions Court, Gr.Bombay in N.D.P.S. Special Case No.321 of 1999. By the said judgment and order, the learned Special Judge acquitted the respondent-orig. accused No.1 of the offences punishable under Section 29 r/w. 21, 28 and 23 as well as under Section 8(c) r/w. 21 of NDPS Act, 1985.

(2.) THE case of the prosecution is that intelligence was received by NCB Officers that one person by name Anthony Ebie (respondent-accused) is likely to conceal/carry heroin in his baggage or on his person. The accused was travelling by Ethiopian Airlines on 16.6.1999. When the accused was in the process of leaving Mumbai by flight No.641 of Ethiopian Airlines, at that time NCB officials stopped him. In the search of his person and baggage nothing incriminating was found. However, the officers suspected that he had swallowed some capsules and hence he was off-loaded and produced before the Court for getting necessary orders. The Court then passed an order to send the accused to J.J. Hospital and the Superintendent of J.J. Hospital was directed to conduct medical examination including X-ray of the accused and after detecting the foreign bodies the NCB officers to be informed. The recovered material was to be given to NCB and the account of which was to be maintained by them.

(3.) IT is the prosecution case that X-ray of the stomach of the accused was taken out, which showed that there were some capsules in his stomach. Those capsules were purged out and those were found to contain heroin. In the present case no X-ray plates have been produced by the prosecution. So also the radiologist has not been examined to show that X-ray of the accused was taken out. The evidence of I.O. shows that he suspected that the accused had swallowed the capsules as he found the abdomen of the accused was having odd shape. So also the ward boy as well as the doctors in whose presence the capsules were allegedly purged out of the accused have not been examined. Thus, no link has been established to show that capsules were found in the X-ray of the accused that the accused purged out some capsules and that the capsules purged which contained heroin were the same which were purged by the accused person. Looking to all these facts, the learned Special Judge had acquitted the respondent of the offence charged.