2019 (2) TMI 1315 - HC - Customs

Conviction overturned, appellant released on bond. Upheld legal procedures and rights in criminal investigations.

MURSALEEN MOHAMMAD Versus UNION OF INDIA

MURSALEEN MOHAMMAD Versus UNION OF INDIA - 2018 (363) E.L.T. 99 (Cal.) Issues Involved:1. Compliance with Section 103 of the Customs Act.2. Validity of consent for X-ray and subsequent actions.3. Proof of X-ray report and Radiologist’s testimony.4. Legality and procedure of recovery of contraband.5. Voluntariness and proof of the appellant’s statements.6. Violation of fundamental rights under Article 21 of the Constitution.Issue-wise Detailed Analysis:1. Compliance with Section 103 of the Customs Act:The appellant argued that the procedure under Section 103 of the Customs Act was not followed. Specifically, no order was obtained from the Magistrate to recover the contraband inside the appellant's body, and no registered medical practitioner was present during the recovery. The court found that the prosecution failed to follow the statutory safeguards, including obtaining the necessary magisterial permission for conducting X-rays and subsequent actions to recover the contraband.2. Validity of Consent for X-ray and Subsequent Actions:The appellant’s consent to the X-ray, recorded in Ext.11, was argued by the prosecution to waive the need for further magisterial permission. The court held that consent for X-ray does not absolve the authorities from following the procedure under Section 103(6) for recovering contraband. The initial consent for X-ray cannot replace the requirement of magisterial permission for subsequent actions.3. Proof of X-ray Report and Radiologist’s Testimony:The court noted that the Radiologist who conducted the X-ray was not examined, and the X-ray report was not forwarded to the Magistrate. The X-ray plates and report were produced by P.W.1 without proper proof. The court emphasized that mere production of a document is not proof of its contents, and the failure to prove the X-ray report and plates snapped the chain of evidence necessary to establish the presence of contraband inside the appellant's body.4. Legality and Procedure of Recovery of Contraband:The recovery of 49 capsules from the appellant's stool was not conducted under medical supervision or in the presence of independent witnesses. The court found that the entire process was shrouded in secrecy and lacked transparency. The appellant was kept under surveillance without medical supervision, violating the statutory scheme and his fundamental rights to just, fair, and humane treatment under Article 21 of the Constitution.5. Voluntariness and Proof of the Appellant’s Statements:The appellant retracted his statements, claiming they were made under duress and he was made to sign blank papers. The court found that the prosecution failed to prove the voluntariness of the statements beyond reasonable doubt. Discrepancies in the testimonies of the witnesses and the lack of corroboration led the court to conclude that the statements were not reliable.6. Violation of Fundamental Rights Under Article 21 of the Constitution:The court held that the procedure followed by the A.I.U. officials violated the appellant’s fundamental rights under Article 21. The invasive recovery process without proper magisterial oversight and medical supervision amounted to cruel, inhuman, and degrading treatment. The court emphasized the need for strict compliance with statutory safeguards to protect the dignity and privacy of individuals.Conclusion:The court set aside the conviction and sentence imposed on the appellant, allowing the appeal. The appellant was ordered to be released from custody upon execution of a bond to the satisfaction of the trial court, continuing for six months under Section 437A of the Code of Criminal Procedure. The judgment highlighted the importance of adhering to legal procedures and safeguarding fundamental rights in criminal investigations.