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TMI Blog2000 (12) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... r-ticket and boarding card. Their search was taken separately in the presence of two panchas at the air-port. The panchas were one Mr. Mohini and another Mr. Kotian who were Ethiopian Airlines personnel. The search of the appellant was also taken in respect of his checked-in baggage which he himself opened so also in respect of his hand bag which he was carrying. Nothing incriminating was found either from the checked-in baggage or from the hand bag of the appellant. Accordingly panchnama was drawn. When asked whether he was carrying any narcotic drugs by swallowing inside the body or concealed in cavity or anywhere, it was denied by this appellant as well as other accused. The appellant and others were thereafter asked whether they were prepared to be examined by a doctor. As all the nine accused agreed, they were all brought to the office of NCB at their Bombay Zonal Unit in Exchange building at Ballard Pier by about 7 a.m. The travel documents including the passports, air tickets, boarding card, flight coupon and the copy of the manifest were attached under a common panchnama. 3.In the office again two panchas were called and the personal search of the appellant was taken and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures of the panchas were obtained after the particulars about the case were written on the samples. The remaining bulk was separately packed, sealed and put in a carton. The panchas label was affixed on it with particulars of the case and signed by the Intelligence Officer. The three sample packets and the carton were sealed with Seal No. 03. The sealing material used by the accused for capsules for wrapping and covering were separately collected in polythene bag sealed and put in a carton. The said carton also was sealed and labelled and the signatures of the panchas were obtained. This was recorded in a separate panchnama. Thereafter the staff returned to the office of the NCB along with the panchnama and muddemal in a sealed condition. 6.Out of the three samples, sample No. R-III was sent to the Deputy Chemist Laboratory, New Customs House along with the triplicate test memo signed by PW 1 and deposited in the said laboratory for which he obtained the acknowledgement from the concerned clerk on the third copy. The sample packet was handed over in sealed condition. Sample packet bearing No. R-IV was sent to FSL Kalina through another officer and the third sample bearing No. R- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted position that according to the prosecution the raiding party was acting pursuant to the prior information received by Assistant Director Rohatgi that the accused allegedly was carrying capsules containing "heroin" in his body cavity which were purged by him when he was admitted in the J.J. hospital in Ward No. 19 from 8th March to 16th March 1994. PW 1 Vilas Dosi, the complainant and the Investigation Officer in para 5 of his deposition states that the Assistant Director Rohatgi, not examined, made the accused aware of his right to be searched before a Gazetted Officer or a Magistrate. When he was informed of his right, according to the deposition of this witness, "The accused also agreed for his search before the Gazetted Officer saying that he had no contraband with him. When the accused was apprised (of) his right to be searched before Gazetted Officer or Magistrate, prior to his search, Asstt. Director Rohatgi also told him that he himself and Vijay Shahasane were the Gazetted Officers and such offer was accepted by the accused for his search before Mr. Rohatgi and Mr. Shahasane, both the gazetted officers." In my view the aforesaid offer is not in compliance with the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been examined, were the gazetted officers. Non compliance with the mandatory provisions of Section 50 of the Act renders the search illegal because the suspect was not able to avail of the in-built protection given to him and consequently conviction and sentence based solely on such recovery is liable to be set aside as held by the constitution Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh reported in (1999) 6 SCC 172. 12.Mr. Thakur appearing for Respondent No. 1 contended that Section 50 would not be applicable as the contraband was not found on the person or on the body of the accused but inside his body. According to him Section 50 is applicable only in case the contraband is found on the body i.e. when he is carrying contraband on his person outside the body and not inside his body. In my view the said argument is devoid of substance. The wording used in Section 50 of the NDPS Act is "When any officer duly authorised under Section 42 is about to search any person". Thus the search of any person or personal search contemplated by Section 50 cannot be confined to the search on the person or outside body of the person. In my view the search of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchnama, the same was sent to the Laboratories for Chemical analysis on 21st March, 1994 after a gap of five days. During this period not only the samples were kept with the Investigating officer but even the seal used on the sample packets had remained with the Investigating officer. The said officer had sent the samples for analysis to the Laboratories under his forwarding letter dated 21st March, 1994 which is produced at Exhibit 15. So far as the Forensic Science Laboratory at Kalina is concerned, column 7 of the said forwarding letter shows that the copy of the seal used for sealing the sample was sent on 21st March, 1994. Thus the Investigating officer was having possession of the seal of NCB for a period of five days giving him chance of tampering with the seal on the sample which admittedly did not bear the signature of the accused but only of the officer writing the panchnama and the panchas. In this respect reliance is placed on the decision of the Division Bench of this Court in the case of Wessel Van Beelan v. State of Goa reported in 1999 (5) Bom. C.R. 575. That was a case where charas was seized from the possession of the accused. After the seized samples were sealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution has relied on the inventory allegedly maintained by the J.J. hospital showing the number of capsules containing "heroin" purged by this accused. The said inventory is produced at Exh. 30. That inventory is not initialed or signed by anybody nor the writer of the said inventory has been examined. While the first column gives the date and the second column the timing, the third column is under the heading of "Tab" giving some figures totalling to 40. Even the name of the person who had prepared that inventory is not given by PW 4 Dr. Algotar in his deposition. Copy of the said inventory was not furnished to the accused nor there is mention about the same in the seizure panchnama. This inventory also is not proved by the prosecution. 17.The seizure panchnama Exhibit 12 cannot be said to be a contemporaneous document which can be relied on in support of the prosecution evidence. The Investigating Officer Dosi PW 1 has admitted in his evidence in para 18 of his deposition that it was in cyclostyled form and was filed before the panchas. Although the format of the said panchnama was prepared in advance and the blanks were filled in the said format at the time of seizure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r safe custody. It is not the case of the prosecution that the toilet pan was provided to the accused on the bed but on the contrary the accused was allowed to go to the toilet for passing stool and the only care that seems to have been taken in the hospital was to provide him with a toilet pan. That action would not ensure that the capsules shown against the name of this accused were purged by him. Dr. Algotar is the only person examined from hospital in this behalf who did not have personal knowledge nor the officers of NCB did anything other than collecting information from the hospital authorities. Even the statement of Dr. Algotar was recorded on 19th April, 1994 i.e. more than one month after the alleged seizure of capsules containing heroin from the hospital authorities. The NCB officers were not party to keep the record of the capsules allegedly purged by the accused nor the capsules were collected or seized under panchnama after every purging by this accused as per the inventory. Moreover, Inventory (Exh. 30) shows that on 9th March, 1994 at 14.10 hrs. for the first time this accused had purged 19 capsules. He had purged seven capsules at 9.45 hrs. on 10th March, 1994 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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