2019 (2) TMI 1315 - HC - Customs

Carrying of contraband item in abdomen of the accused - 49 pieces of bullet shaped capsules comprising of Hashish secreted in the body of accused - Sections 21(b) 23(b) of the NDPS Act - retraction of statements - procedure laid down under Section 103 of the Customs Act for recovery of contraband secreted inside the body of the appellant not carried on properly - Held that - Customs officers including the officers of the Air Intelligence Unit are empowered to investigate offences under the NDPS Act and are vested with all the powers of an officer-in-charge of a police station for the purpose of such investigation in terms of Section 53 of the NDPS Act. When a customs officer undertakes investigation of offences under the NDPS Act he is not only governed by the provisions of Customs Act but also by the provisions of the NDPS Act - Search of a person under the NDPS Act is governed by Section 50 of the said Act. Section 103 of the Customs Act lays down the procedure that a customs officer is required to follow to conduct X-ray of the body of the suspect for detecting and/or recovering contrabands secreted inside his body - The procedure described above calls for magisterial intervention not only for the purpose of holding X-ray of the body of the suspect but also requires magisterial permission for undertaking suitable action for recovery of the contraband secreted inside the body upon receipt of report of the radiologist. Initial magisterial permission for conducting X-ray of the suspect is not a substitute of the subsequent magisterial sanction for undertaking suitable action to bring out the contraband in the presence of a registered medical practitioner upon receipt of the X-ray report. Accordingly, consent of the suspect for conducting X-ray of his body cannot be treated to be a valid consent under sub-section (8) of Section 103 to waive the necessity of magisterial permission for undertaking suitable action for bringing out the contraband in presence of a doctor upon receipt of the X-ray report - Thus, consent of the appellant in Ext.11 to conduct X-ray in the instant case does not absolve the authorities to follow the procedure adumbrated in sub-sections (5) and (6) of the said section for bringing out the goods secreted inside the body of the suspect. In the facts of the instant case, I find that the radiologist who purportedly conducted X-ray of the abdomen of the suspect has neither been examined nor had he sent his report along with X-ray plates to the Magistrate for suitable action as contemplated under the said provision of law. On the other hand, X-ray plates along with report of the radiologist were produced by P.W.1. Radiologist was not examined in the instant case and in my considered opinion it cannot be said that the report of the radiologist along with X-ray plates was duly proved - the prosecution has failed to prove that it had followed the procedure laid down under Section 103 of the Customs Act for recovery of contraband secreted inside the body of the appellant. Finally, it has been argued that as the recovery of the narcotic substance secreted inside the body of the appellant was in ordinary course of passing stool and that too in the morning of the very next day after radiological examination was conducted, there was no scope for obtaining of order under Section 103(6) of the Customs Act. Procedure entailing recovery of narcotics/contraband from the body of the suspect requires invasion into the physical body of the suspect and an encroachment into his privacy. Such exercise being invasive in nature must not only be in strict compliance of statutory safeguards as contemplated in Section 103 of the Customs Act but also must be in consonance to the dignity of the suspect and ought not involve any cruel, degrading or inhuman treatment lest such procedure runs fowl of Article 21 of the Constitution. Admittedly in the instant case, radiologist s report was not forwarded to the magistrate nor the latter s permission obtained for undertaking suitable action for bringing out the contraband from the body of the appellant. On the other hand, appellant was kept detained in the A.I.U. office under surveillance till it is claimed that he defecated resulting in ejection of the contraband. It is contended as the ejection of the contraband was through normal metabolic process compliance of Section 103 of the Customs Act was neither applicable nor feasible. It appears from the evidence of the prosecution witnesses that on receipt of X-ray report, the appellant was kept under surveillance at the A.I.U. office till he defecated on the next morning allegedly ejecting the contraband from his body. The alleged recovery of contraband in the instant case appears to have been made shrouded in secrecy and is sought to be proved only on the basis of the uncorroborated version of the A.I.U. officials. Although P.W. 1 claimed that such recovery was made in the presence of two independent witnesses, no independent witness was examined to prove such fact. Entire process of alleged recovery took place within the closed confines of the A.I.U. office while the appellant was in the custody of the said officials. No medical aid or supervision was extended to him during his detention or at the time of alleged recovery. Hence, it is most unsafe to rely on the mere ipse dixit of the A.I.U. officials to come to a finding that narcotic substance was recovered from the excreta of the appellant particularly when such exercise was done without magisterial permission, bereft of medical supervision and was not supported by independent witnesses. Reliability on statements of the appellant - Held that - None of the said statements relied by the prosecution have been proved beyond reasonable doubt. Ext. 18 was purportedly recorded on 11-2-2012 in the presence of P.W.9 (Amitava Lahiri) and P.W.5 (S. Bhattacharya). Although P.W.9 claims that he recorded and read over the said statement to the appellant in Hindi, his version is not corroborated by P.W.5 (S. Bhattacharya). With regard to the purported statement recorded on 12-2-2012 (Ext. 6) there are number of discrepancies. P.W.2, who claimed to be present at the time of recording of the statement, stated that it is not mentioned in the statement in which language the appellant made such statement. It is the duty of the prosecution to prove the purported voluntary statements of the appellant beyond reasonable doubt in order to enable the court to come to a finding of guilt on the sole basis of such statements. The discussion of the evidence of the prosecution witnesses with regard to the said statements leaves no doubt in one s mind that the evidence in that regard is too flimsy and contradictory to inspire confidence - the statements claimed to be made by the appellant have not been proved beyond reasonable doubt and I do not consider it prudent to rely on such statements to come to a finding of guilt against the appellant. Conviction and sentence imposed on the appellant is, accordingly, set aside - appeal allowed.

Summary

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.