2018 (1) TMI 653 - HC - Customs

Court upholds acquittal, stresses legal safeguards in NDPS and Customs Acts.

Customs Versus Juarah & Another

The court dismissed the leave petition, upholding the trial court's acquittal of the respondents. The judgment emphasized the importance of strict ... Smuggling - Heroin - Section 50 of the NDPS Act - Baggage rules - Since the Respondents were feeling uneasy and had also refused to take any hot/cold drinks being offered to them, their body search was conducted and it was noticed that their bellies were unusually stiff - Respondents Juarah and M. Walai remained admitted in Safdarjang Hospital from 02.04.2010 to 09.04.2010 and during the said period, they had ejected a total number of 55 capsules weighing 382. 58 gm and 58 capsules weighing 586.67 gms respectively from their rectum. This recovery was made in the presence of doctors on duty, interpreter and two punch witnesses. The capsules recovered were sealed and deposited with the SDO (Arrival) of IGI Airport, New Delhi. whether the alleged recovery of the narcotic drug from the Respondents was in compliance of the provisions of Section 50 of NDPS Act? - whether the alleged recovery of the narcotic drug from the Respondents was in compliance of the provisions of Section 103 of the Customs Act? - Whether the statement of the Respondents under Section 67 of NDPS Act was as per the legal requirement or not? Held that: - The notices served upon the Respondents were not in conformity with the provisions of Section 50 of the NDPS Act and were merely an enquiry by the empowered officer to the Respondents. By these notices the respondents were not informed of their legal rights to be searched before the Magistrate or Gazetted officer. Further it is note worthy that PW13 Sh. Khalid A. Noori in his cross examination admitted that he did not know the meaning of words “Gazetted officer” and “Magistrate” in Persian. Since both the respondents were not conversant with English, the meaning of these two words was not conveyed to them in vernacular language by PW13. Looked from any angle the very purpose of notice under section 50 was defeated what to speak of compliance. Section 103 of the Customs Act provides for the power to screen through x-ray, bodies of suspected persons for detecting hidden goods. Section 103 of the Customs Act will apply when the body of the suspected person is required to be x-rayed. In the present case, the customs officers have opted to go for x-ray examination of the body of the Respondents, and, therefore, they had to follow the procedure laid down in Section 103 of the said Act. It is evident from the record that the alleged recovery of narcotic drug from the respondents was in violation of the safeguards provided in Section 50 of the NDPS Act as well as Section 103 of the Customs Act and thus, the same cannot be used as evidence of proof of unlawful possession of the contraband against the respondents. It is a settled law that while weighing the evidentiary value of a statement under Section 67 of the NDPS Act, the Court should not lose sight of the ground realities and should take into consideration whether the confession was made under duress or was voluntary in nature - the respondents were apprehended on 01.04.2010 and their alleged statements under Section 67 of the NDPS Act were recorded on 09.04.2010 while they were in custody of the Customs officers. In his cross-examination PW1 Sh. Prashant Prakhar admitted that he had interrogated the respondents through the interpreter and the answers given by them were recorded in the form of their statements under Section 67 of the NDPS Act. PW1 Sh. Prashant Prakhar also admitted that he had told the respondents that they were required to tender their statements under Section 67 of the NDPS Act and did not inform them about their right to remain silent. Considering the same, the statements of the respondents under Section 67 of the NDPS Act cannot be said to be voluntary and no reliance can be placed on them. Petition dismissed. Issues Involved:1. Compliance with Section 50 of the NDPS Act.2. Compliance with Section 103 of the Customs Act.3. Voluntariness and legality of statements under Section 67 of the NDPS Act.Issue-wise Detailed Analysis:1. Compliance with Section 50 of the NDPS Act:The court examined whether the recovery of narcotic drugs from the respondents complied with Section 50 of the NDPS Act, which prescribes safeguards for personal searches. The prosecution claimed that notices under Section 50 were served on the respondents, informing them of their right to be searched before a Magistrate or Gazetted Officer. However, the court found that the notices merely provided an option rather than informing the respondents of their legal right. The court cited the Supreme Court's ruling in *Vijaysinh Chandubha Jadeja v. State of Gujarat* (2011) 1 SCC 609, which mandates strict compliance with Section 50. The court concluded that the notices did not meet the legal requirements, rendering the recovery suspect and vitiating any conviction based solely on it.2. Compliance with Section 103 of the Customs Act:Section 103 of the Customs Act outlines the procedure for screening or X-raying the bodies of suspects. The court noted that the Customs officers produced the respondents before a Magistrate and sought permission for medical examination. Although the CT scans revealed capsules in the respondents' abdomens, the court found that the necessary permissions for their prolonged hospital stay and recovery of capsules were not obtained as required under subsections (6) and (7) of Section 103. The court concluded that the recovery was not in accordance with the prescribed procedure, making it inadmissible as evidence.3. Voluntariness and Legality of Statements under Section 67 of the NDPS Act:The court scrutinized the voluntariness of the respondents' statements under Section 67 of the NDPS Act, recorded while they were in custody. The court highlighted that the respondents were not informed of their right to remain silent, as mandated by the Supreme Court in *D.K. Basu v. State of West Bengal* (1997) 1 SCC 416 and *U.O.I vs Bal Mukund & Ors.* JT 2009 (5) SC 45. The court found that the statements were not voluntary and lacked independent corroboration, making them unreliable for conviction.Conclusion:The court dismissed the leave petition, upholding the trial court's acquittal of the respondents. The judgment emphasized the importance of strict compliance with legal safeguards under Sections 50 and 103 of the NDPS and Customs Acts, respectively, and the necessity of voluntariness in statements under Section 67 of the NDPS Act.