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TMI Blog1997 (9) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are directed to run concurrently. 2.The facts of the case according to the prosecution can be stated as under : On 19-4-1990 at about 6.00 a.m. the appellant was about to board the flight to Adis Ababa by Ethiopian Airlines Flight No. ET-641 from Sahar International Airport, Bombay. She was carrying a brief case bearing hand bag tag of Ethiopian Airlines and one shoulder cloth bag and one purse. While she was proceeding to the Boarding Gate, Customs' Sniffer dog `Pooja' barked after sniffing her shoes thereby giving indication that there was some narcotic substance hidden in the shoes. At that time PW. 2, Bimalchandra Mondal working as an I.O. at Air Intelligence Unit, (New International Passengers Travel), Sahar Airport along with Mr. Desai, Preventive Officer in charge Mr. Rajan, Mr. Kanade, Superintendent and Mr. Ramlathan intercepted the appellant and asked the Appellant whether she was carrying narcotics. But she denied. Since PW 2 and other officers were not satisfied with her answer, they called Panchas and again asked her whether she was carrying any narcotic substance. Again she replied in the negative. Then appellant was brought to the ground floor where the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paragraph of the Judgment. 3.We have heard learned Counsel for the appellant Mr. G.G. Lalla and Mr. P.S. Thakur for Respondent No. 1 and Mr. I.S. Thakur for Respondent No. 2. The learned Counsel Mr. G.G. Lalla, appearing for the appellant mainly based his argument on the following points : He submits that there is a complete violation of Section 50(i) of the N.D.P.S. Act and therefore entire trial is vitiated. The Exh. 24, the certificate of the C.A. is not relating to(ii) the contraband articles. The C.A. report has not been examined and(iii) Non-compliance of provisions of Sections 52, 55 and 57 of(iv) the N.D.P.S. Act. 4.On careful examination of the evidence adduced before the trial Court and also on hearing the parties, excepting the first point, all other points are to be decided against the appellant. Regarding first point, Mr. Lalla, learned Counsel for the appellant submits that before the search the mandatory requirement as envisaged under Section 50 of the N.D.P.S. Act has not been complied with by the prosecution. He submits that the mandatory requirement that before searching the person of the appellant she was not asked whether she wanted to be searched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onwards the procedure contemplated under the Act has to be followed. In paragraph 3 of the aforesaid Judgment the Apex Court states thus : "But when the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panchas and on their arrival drew up the panchanama. In the circumstances, from the stage, he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act." (emphasis supplied) The aforesaid decision of the Supreme Court in Mohinder Kumar's case has been followed by the Full Bench of this Court in decision of Ebanezer Adebaya @ Monday Obtor v. B.S. Rawat, Collector of Customs reported in 1996 (2) Mh.L.J. 280. The Full Bench of this Court in paragraph 5 of the aforesaid Judgment stated as follows : In"5. Mohinder Kumar's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the search effected in this case is not a personal search and, therefore, adherence to the procedure under Section 50 does not arise. This contention also has to be rejected in view of the Full Bench decision (supra) in para 11 of the judgment, reads thus : Considering the aforesaid provisions, the inference which"11. can be drawn is that " to search any person" would mean only search of the body or wearing apparel of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50, in contrast, if search of any building, conveyance or place, including a public place, is to be carried out, then there is no question of following the procedure prescribed under Section 50. But when a suspected or arrested person is to be searched, then the procedure prescribed under Section 50 comes into operation and the procedure thereunder is required to be followed. This can be seen by referring to Section 100(3) of the 1973 Code which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found and on search incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case it is difficult to hold that Section 50 stood attracted and non- compliance with that provision was fatal to the prosecution case." (emphasis supplied) 11.In view of the above authority on the subject, we have no hesitation to hold that the search in question is a search of the person of the appellant. The first se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decisions quoted above have been strongly relied upon by the Counsel of the respondent. Therefore the question that arises is whether confessional statement made by the appellant which was retracted after two months could be safely relied upon to sustain the appellant's conviction PW. 3 in his evidence stated that immediately after search was over on 19-4-1990, he had served appellant, a summons purported to be under Section 108 of the Customs Act. Mrs. Kapoor, a Lady Officer, has written the preamble of the confessional statement made by the appellant. In that statement, she admitted committing the offence but later on 19-6-1990, when she was produced before the Magistrate, retracted the said confessional statement saying the confession statement was extracted from her without her will and using force and duress. She stated before the Magistrate that she was beaten before she gave the confessional statement. Question, therefore, arises in this case as to how far such a retracted confession can be used as a foundation for establishing the culpability of the appellant. 15.The learned Counsel for the Respondent also relied upon the decision of this Court in Criminal Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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