TaxTMI 
TaxTMI 
2025 (6) TMI 280
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....rt, New Delhi, and was intercepted by Customs Officer on suspicion/profiling. The applicant was taken at Green Channel for the X-ray of his baggage. ii) Thereafter, he was served with notice under Section 102 of the Customs Act, 1962, and Section 50 of the NDPS Act. Personal and baggage search of the applicant was conducted but nothing was found. However, it was suspected that he was concealing narcotic substance inside his body and on further enquiry, the applicant accepted that he has concealed some capsules in his body, so in order to do screening/x-ray of his body, notice under Section 103 of the Customs Act was served to him whereby he was informed that x-ray/screening of his body is required, to which he consented and he admitted that he had ingested some pellets/capsules containing some narcotic substances and further voluntarily submitted his willingness for undergoing procedure for removal of the said secreted capsules/pellets from his stomach. The same was duly recorded in Panchnama-1 dated 21.05.2023 drawn at T-3, IGI Airport, New Delhi. iii) The applicant was then taken to Safdarjung Hospital, New Delhi for x-ray/CT scan/Medical Examination. During the....
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....ction 67 of the NDPS Act was recorded on 26.05.2023 wherein he admitted the search, recovery and seizure of recovered drugs as mentioned in the aforesaid panchnamas. He further stated that he is doing business of bakery in Addis Ababa and was contacted by Mr. Mohammad through his old friend, Amanul Girma and said Mohammad arranged his return air tickets to and from India to Addis Ababa for tourist purpose. His main purpose was to come to India for delivering the narcotics substance to a person in Delhi. As per the direction of Mr. Mohammad he had swallowed 75 capsules As per instructions, of said Mohammad, the said person in Delhi would have contacted him on his mobile number as soon as he reached India. He further stated that since he was in dire need of money, he agreed to the said proposal and swallowed those capsules with water on instructions of Mr. Mohammad and the said person was known to Mr. Mohammad only and he did not know the person in Delhi to whom the said capsules were to be handed over. viii) The applicant was arrested vide arrest memo dated 26.05.2023, by the Customs Officer and produced in the Court, where he was remanded to judicial custody. It is their c....
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....ection 103 of the Customs Act was served to him for screening/X-ray of his body for the detection of narcotic substances ingested by the applicant. It is further argued that the respondent had not even informed the local police regarding the applicant being taken to hospital. It is further submitted that the respondent had not informed any relative or any other person regarding the detention of the applicant prior to his formal date of arrest, i.e., between 21.05.2023 to 26.05.2023, and also, the fact that he has been taken to hospital for ejecting out of the aforesaid alleged capsules. It is further submitted that there has been non-compliance of Section 50 of the NDPS Act inasmuch as the applicant was not served with the notice each time prior to the ejection of the alleged capsules from his body and simply panchnamas' were drawn showing the recovery of alleged contraband from the applicant. 5. It is further the case of the applicant that there has been non-compliance of Section 52A of the NDPS Act as the alleged recovery was affected from the applicant on 18.07.2023, however, the sample of the contraband was sent for examination to CRCL on 17.08.2023 and further that, the wei....
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.... beds of patients. 8. He has further submitted that recovery of the contraband was duly noted in the panchnamas drawn each time there was recovery of the capsules, same was noted in the said panchnama. It is the case of the customs that the samples of the contraband were drawn in accordance with Section 52A of the NDPS Act. 9. It is further submitted that there has been recovery of commercial quantity (954 grams) of 'Cocaine Hydrochloride' from the present applicant and thus, rigors of Section 37 of the NDPS Act are applicable to the present case. The case is presently at the stage of prosecution evidence. Therefore, the present application is to be dismissed at this stage. 10. Heard learned counsel for the parties and perused the record. 11. Admittedly, in the present case, the applicant was intercepted by the Customs on 21.05.2023. As per first Panchnama-1 dated 21.05.2023 drawn on T-3, IGI Airport, New Delhi, it is recorded that after search conducted in pursuance of a notice issued under Section 102 of the Customs Act and as well as under Section 50 of the NDPS Act, no recovery had taken place. Thereafter, another notice under Section 103 of the Customs Act dated 21....
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....anded Over by" Mr. Vineet, ACO, Shift-B and "Taken Over by" Mr. C.R. Ranjan, ACO, Shift-D, and there is same "Handed Over by" and "Taken Over by" endorsement towards the end. Thereafter, it is noted that "You are requested to take the necessary action as per Customs Act 1962, NDPS Act 1985 and other allied Acts." 15. Similarly, there are other handing over and taking over memos prepared by the Customs on 22.05.2023, 23.05.2023, 24.05.2023 and 25.05.2023 and in all these memos towards the end, there is a noting for necessary action, as per Customs Act 1962 or NDPS Act, 1985 and other allied Acts, as deemed fit to be taken. 16. As per the case of the respondent, the applicant was discharged from the said hospital on 25.05.2023 and a Panchnama-5 dated 26.05.2023 was prepared at 09:00 Hours and concluded at 12:30 hours on the said date and was prepared at Customs Arrival Hall of Terminal-3, IGI Airport, New Delhi. In the said panchnama, in the first para itself, it is recorded as under: - "The Custom Officer informed us that he had received specific information about one passenger, Mr. Habib Bedru Omer (D.O.B. 12-09-1991), S/o Shri Budiru Omer, R/o H.No. 441, Ayate Road,....
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....03:30 PM. In the arrest memo, it is mentioned that the applicant had informed his brother on his phone number in respect of his arrest at IGI Airport, New Delhi. The applicant was, thereafter, produced before the learned Special Court and was committed to judicial custody. 19. During the course of hearing, on a pointed query to Mr. Ravi Arya, Superintendent, Customs, it was stated that the local police were not informed with regard to the applicant being taken to Safdarjung Hospital, nor was there any information given to his family members or the Ethiopian Embassy. It was further submitted that the personal liberty of the applicant was not curtailed as he was allowed to keep his mobile, however, it was admitted that the applicant did not call anyone from his phone. It was further admitted that the Custom's Officers were present outside the Hospital room for 24 hours on rotational duty. It was also admitted that each time, the aforesaid panchnama was prepared with regard to capsules being eased out by the applicant, the intimation of the same was not given to Superior Officers. Thus, according to the respondent, the applicant was not in custody from 21.05.2023 to 26.05.2023, whe....
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....ant therein, the Hon'ble Supreme Court has observed and held as under: - "6. This argument cannot be accepted. Admittedly, the LOC was issued at the instance of the appellant - Directorate of Enforcement. By executing the LOC, the Bureau of Immigration detained the respondent at IGI Airport from 4th March 2022 on behalf of the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 1.15 hours on 6th March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6th March, 2024. The perusal of the arrest order(Annexure p-1) shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5th March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. Thus, the continuation of ....
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....le 21, has been violated. 23. In the similar circumstances, learned Division Bench of Hon'ble High Court of Andhra Pradesh at Hyderabad in Mrs. Iqbal Kaur Kwatra v. The Dist. General of Police, Rajasthan State, Jaipur 1996 SCC OnLine AP 206, had observed and held as under: - "18. It is well settled that "police custody" does not necessarily mean custody after formal arrests. It also includes "some form of police surveillance and restriction on the movements of the person concerned by the police". The word "custody" does not necessarily mean detention or confinement. A person is in custody as soon as he comes into the hands of a police officer. 19. Section 57 of the Code of Criminal Procedure, 1973 reads: "57. Person arrested not to be detained more than twenty-four hours:- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court." ....
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.... of the present applicant with the allegedly recovered contraband. 25. The Constitutional Bench of the Hon'ble Supreme Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 has observed and held as under: - "10. It is thus clear that by a combined reading of Sections 41, 42, 43 and 51 of the NDPS Act and Section 4 CrPC regarding arrest and search under Sections 41, 42 and 43, the provisions of CrPC namely Sections 100 and 165 would be applicable to such arrest and search. Consequently the principles laid down by various courts as discussed above regarding the irregularities and illegalities in respect of arrest and search would equally be applicable to the arrest and search under the NDPS Act also depending upon the facts and circumstances of each case." 26. Relevant provisions of the NDPS Act relating to entry, search, seizure and arrest without warrant or authorization are under: - 42. Power of entry, search, seizure and arrest without warrant or authorisation.-(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of t....
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....concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. *** *** *** 52. Disposal of persons arrested and articles seized.-(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to- (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under sectio....
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....me the applicant was intercepted at the IGI Airport. In any case, when the first set of capsules were seized by panchnama dated 21.05.2023, the respondent was bound to act in accordance with the provisions of the NDPS Act. It is pertinent to note that the report under Section 57 of the NDPS Act was sent only on 26.05.2023. 28. The applicant was in the continuous custody of the respondent from 21.05.2023 till 26.05.2023 without any authorisation. "Handing Over" and "Taking Over" memos annexed with the complaint leaves no manner of doubt that the custody of the applicant was being transferred from one Officer to the other on the basis of the rotational duties. Thus, in the opinion of this Court, such custody without any authority and without producing him before the concerned Magistrate or Special Court within 24 hours in accordance with law is completely illegal. Even if the applicant was under medication for the procedure being carried out, the same cannot be a ground to keep him in custody. Magistrates exercising power of remand or otherwise in respect of persons in hospital is not unheard of and well recognised procedure in law. 29. Thus, the respondent without producing th....