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TMI Blog2019 (2) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aband 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 (Amitav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of ₹ 75,000/- and in default to suffer further simple imprisonment for five months for commission of the offence punishable under Section 23(b) of the NDPS Act. Both the sentences shall run concurrently. 3. The prosecution case, as alleged, against the appellant is to the effect that on the basis of secret information the appellant was apprehended on 10th February, 2012 at NSCBI Airport departure area while he was about to leave for Hong Kong via Dhaka availing Flight No. BG-092. He was intercepted while he was proceeding towards the immigration counter after obtaining his boarding pass. As the movement of the appellant was suspicious he was detained by the Air Intelligence Unit (in short A.I.U.) officials and was taken to A.I.U. room for interrogation. He voluntarily cancelled his journey. On interrogation, the appellant denied he was carrying any contraband. As the A.I.U. officials were suspicious due to the movements and/or behaviour of the appellant they did not rely on his version and made prayer before the Learned Chief Judicial Magistrate, Barasat to permit them to conduct X-ray of his abdomen. After obtaining permission, he was taken to X-ray centre for conducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of contraband from the body of the appellant was not done in presence of a registered medical practitioner. It is further submitted that the mandatory provision of Section 50 of the N.D.P.S. Act had also not been followed. He further submitted that the statements of the appellant while in the custody of the A.I.U. officers were not voluntary and the appellant had been made to sign in blank papers during his detention at the airport. The appellant had retracted the statements during trial. He also submitted that the said statements had not been proved in the facts of the case. He relied on Customs v. Juarah Anr., 246 (2018) DLT 635. He accordingly prayed for acquittal. 6. Mr. Banerjee, Learned Counsel appearing for Union of India submitted that it would be evident from Ext. 11 (statement of the appellant recorded on 10-2-2012) that the appellant had agreed to have X-ray of his abdomen and due permission was also obtained from the Magistrate in that regard. X-ray report showed that there was suspicious substance inside the stomach of the appellant and even before the authorities could obtain permission from the Learned Magistrate, the appellant passed stool resulting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the N. D. P. S. Act as well as the Customs Act. The exact weight of the contraband capsules was 375 gms. A search list was prepared and a Panchnama was also prepared. On 12-2-2012 in the evening he was again taken to the same clinic for X-ray of his abdomen. From the X-ray report, they came to know that there was no more foreign body in his abdomen. On 13-2-2012 in presence of the independent witnesses two sets of samples containing four capsules each were prepared. Two sample packets and the packet containing the main bulk were sealed and labelled and was duly signed by the witnesses, the accused and the officers of Customs. The appellant was arrested under Section 43 of N. D. P. S. Act. On 13-2-2012, he was produced before the Court and remanded to custody. He proved the petition which was filed before the Court, Ext.1 and his signature thereon. He proved the copy of the order of the Magistrate permitting X-ray on the body of the appellant, Ext.2. X-ray was done on 10-2-2012 at the Airport X-ray Clinic. As per report of X-ray, there was a suspicious white shadow in his abdomen. The report and the X-ray plate were marked Ext.3 collectively (with objection). On 11-2-2012, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but was accustomed to Bengali and Hindi language. 14. P.W.6 Subhas Ch. Das was in-charge of the godown of Air Intelligence Unit at NSCBI Airport. Upon instruction of the seizing officer he prepared the test memo. He proved the signature in the said memo, marked Ext.13. He sent 49 capsules to the Chemical Laboratory at Customs House. 15. P.W.7 Mrityunjoy Mistry deposed that he was posted at Customs House Laboratory, Kolkata on 16-2-2012. On that day, he received sample for chemical examination for test memo. In the said sample packet there were 8 lac seals which were intact. The samples were tested by his junior Partha Sarathi Karmakar in his presence. Charas was detected in the samples. He proved the report, Ext.14. 16. P.W.8 Amit Kumar Mishra was posted at NSCBI Airport as Customs Officer. He lodged the complaint as per official records. The said complaint was marked as Ext.15. 17. P.W.9, Amitava Lahiri was posted at N.C.B.I. Airport at Air Intelligence Unit as Preventive Officer. He has corroborated the evidence of interception of the appellant, the permission of Learned Magistrate making X-ray of the abdomen of the appellant and the recovery of 49 capsules from his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction under Section 103(6) of the Customs Act to recover contraband secreted inside the body of the accused. Furthermore, recovery of the contraband was not before a registered medical practitioner. It has been strenuously argued by the Learned Counsel for the Department that the capsules were ejected while the appellant was passing stool in normal course on the next morning. There was no scope for obtaining permission of the Learned Magistrate under Section 103(6) of the Act. It has also been argued that the appellant had consented to holding X-ray of his abdomen in Ext.11. Not only that in the voluntary statements namely Exts. 6, 13 18 he clearly admitted his guilt before the A.I.U. officers. 20. Let me examine the aforesaid issues raised in the instant case in the factual matrix of the case. 21. 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 gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion : Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner. (7) Where any person is brought before a magistrate under this section, such magistrate may for the purpose of enforcing the provisions of this Section under such person to be kept in such custody and for such period as he may direct. (8) Nothing in this Section shall apply to any person referred to in sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods. 24. The aforesaid provision 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. Such procedure may be summarised as follows:- (a) Firstly, the customs officer must entertain reason to believe in the facts of the case that the suspect has secreted contraband in his body. (b) On the basis of such reasonable belief, he has to produce the suspect before a Magistrate and make a prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adiologist 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. 27. It is trite law that mere production of a document is not proof of its contents. The radiologist who conducted the X-ray and prepared the report ought to have been examined to prove the same, more particularly when such report had not been admitted in the course of trial by the defence. 28. The opinion of the radiologist and the X-ray plates are the live-links between the reasonable belief of the officers and the discovery of contraband inside the body of the appellant which was subsequently alleged to be recovered. Failure to prove the said link, that is, discovery of contraband inside the body of the suspect beyond reasonable doubt snaps the chain culminating in the recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (6) of Section 103 of the Customs Act for recovery of contraband inside the body of a suspect must not only be in accordance with the procedure established by law but also be compatible to the dignity of the individual and ought not subject him to cruel, inhuman treatment. 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. Perusal of the order dated 10-2-2012 of the Magistrate permitting X-ray of the abdomen of the appellant shows that the A.I.U. o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya). 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) I note that 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 also not recorded in the statement that the appellant had made such statement voluntarily. P.W.5, the recording officer, did not state in his deposition that he had read over and explained the statement to the accused, who did not know to read or write English (the language in which the statement was written). It is also important to note that an independent witness, who is claimed to have been present at the time of recording of the said statement and had allegedly read over and explained the same to the appellant, has not been examined in the instant case. 32. Finally, with regard to Ext.13, I find that the said statement has not been proved at all. Only the signature of one of the A.I.U. officials namely, P.W.3 (Debasis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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