CUSTOMS Vs. JUARAH & ANR

JUDGEMENT

(1.) The present leave to Appeal has been filed against the impugned judgment dated 28.02.2017 passed in Sessions Case No.440805/2016 (Old No. 02/2013) by Sh. Sanjay Garg, Learned Special Judge (NDPS), Dwarka Courts (in short "the Trial Court") whereby the Respondents Juarah and M. Walai were acquitted of the charges for the commission of offences punishable under Section 21/23/29 of the The Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") on the grounds that the alleged recovery of narcotic drug from the Respondents cannot be used against the Respondents as the investigating agency failed to comply with the provision of Section 50 of the NDPS Act and with the provision of Section 103 of the Customs Act, 1962 and the statements of the Respondents under Section 67 of the NDPS Act recorded by the investigating agency do not meet the legal requirements and as such the investigating agency defaulted on all the above aspects.

(2.) The case of the prosecution is that on 01.04.2010 at 12:45 pm, an information was received by Sh. D.C. Misra (PW8), Joint Commissioner, Air Customs, IGI Airport, New Delhi, that a person namely Jura (an Afghan national) and his accomplice (name not known) would arrive on the same day from Kabul by Ariana Afghan Airlines, Flight no. FG311, who were suspected to carry Heroin concealed in their baggage and in their bodies. Sh. D.C. Misra reduced the information into writing and forwarded the same to Sh. J.S. Kandhari (PW17), Assistant Commissioner, Air Customs, IGI Airport, who constituted a team consisting of Sh. S.C. Rawat (PW5) (Air Customs Superintendent), Sh. Prashant Prakhar (PW1) (Air Customs Officer), Sh. Amrik Lal (PW23) (Air Customs officer) and Sh. S.S. Hundal (PW22) (Air Customs Officer). On the basis of the above information, the said Jura (respondent No.1) was identified by the Customs officers after immigration clearance with the help of his passport, wherein his name was reflected as Juarah. After about ten minutes, respondents M.Walai joined respondents Juarah after immigration clearance and both of them started going towards the exit gate of the arrival hall. They were carrying only one hand baggage. Both the respondents were intercepted near the exit gate by the Customs officers. Since both the respondents were not conversant with English and Hindi, the Customs officers took help of two personnel from Ariana Afghan Airlines namely Khalid A. Noori (PW13) and Noor Ali Khosti, who were acquainted with the verna-cular language of the respondents i.e. Farsi. On being asked as to whether they were carrying any narcotic drug, the respondents hesitatingly replied in the negative. Both the Respondents were served with separate notices under Section 50 of the NDPS Act which were read over to them by the said interpreters. By the said notices, it was explained to the Respondents that if they desired, the examination of their baggage and their personal search could be conducted before a Magistrate or a Gazetted Officer. However, both the Respondents declined to avail the same and stated that any Customs officer could take their search or they could be taken anywhere for medical check-up. Thereafter, the examination of the baggage of the Respondents and their personal search was conducted but nothing incriminatory was recovered. 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. Considering the same, the Respondents were produced before the learned Duty Magistrate, Patiala House Courts, New Delhi and an application seeking permission for their medical examination was filed which was allowed vide order dated 01.04.2010.

(3.) Accordingly, the Respondents were produced before the Senior Medical Officer, Safdarjang Hospital, New Delhi, who admitted both of them in hospital for their proper examination. On 02.04.2010, Dr. M.K. Mittal (PW2) conducted non-contrast CT scan of the abdomen of the Respondents and found multiple capsules shaped radio opacities surrounded by air lucency in the entire large bowel from caecum till rectum suggestive of foreign bodies. The 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.