1997 (9) TMI 125 - HC - Customs

Summary

Issues Involved:
1. Violation of Section 50 of the N.D.P.S. Act.
2. Relevance and validity of the Certificate of Analysis (Exh. 24).
3. Non-examination of the Chemical Analyst.
4. Non-compliance with Sections 52, 55, and 57 of the N.D.P.S. Act.
5. Reliance on the confessional statement under Section 108 of the Customs Act.

Detailed Analysis:

1. Violation of Section 50 of the N.D.P.S. Act:
The appellant's counsel argued that the mandatory requirement under Section 50 of the N.D.P.S. Act was not complied with, as the appellant was not informed about her right to be searched in the presence of a Gazetted Officer or Magistrate. The prosecution countered that the recovery was a chance recovery, thus Section 50 was not applicable. However, the court, referencing the Supreme Court's decision in Mohinder Kumar v. The State of Goa, held that once the authorities had reason to believe the appellant was in possession of narcotic drugs, the procedures under Section 50 had to be followed. The court concluded that the search was not a chance recovery and that the appellant was under the command of the officers, thus making it a personal search requiring compliance with Section 50.

2. Relevance and Validity of the Certificate of Analysis (Exh. 24):
The appellant's counsel questioned the relevance of the Certificate of Analysis (Exh. 24), asserting it did not relate to the contraband articles. The court did not find substantial merit in this argument, as the certificate was deemed to be properly connected to the contraband recovered from the appellant.

3. Non-examination of the Chemical Analyst:
The appellant's counsel argued that the Chemical Analyst was not examined, thereby questioning the reliability of the chemical analysis report. The court dismissed this argument, stating that the report itself was sufficient evidence and there was no necessity for the Chemical Analyst to be examined in this case.

4. Non-compliance with Sections 52, 55, and 57 of the N.D.P.S. Act:
The appellant's counsel claimed non-compliance with Sections 52, 55, and 57 of the N.D.P.S. Act. The court found no substantial evidence of non-compliance with these provisions and ruled against the appellant on this point.

5. Reliance on the Confessional Statement under Section 108 of the Customs Act:
The prosecution argued that even if the search was deemed illegal, the confessional statement under Section 108 of the Customs Act was sufficient to sustain the conviction. The court, however, noted that the appellant had retracted her confession, claiming it was made under duress. The court emphasized that a retracted confession requires corroboration by other material evidence, which was absent in this case. Therefore, the court held that the confessional statement alone was insufficient to convict the appellant.

Conclusion:
The court concluded that the prosecution failed to comply with the mandatory requirements under Section 50 of the N.D.P.S. Act, rendering the search and seizure illegal. Additionally, the retracted confessional statement could not be solely relied upon to sustain the conviction. Consequently, the court set aside the trial court's judgment and acquitted the appellant, ordering her release forthwith if not required in any other case.