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IN THE HIGH COURT OF BOMBAY
N.D. Vyas Mrs. R.P. Desai, JJ.
Veneela Tilak .... Appellant.
Versus
Shahasane, Assistant Collector of Customs
and another .... Respondents.
Criminal Appeal No. 586 of 1983, decided on 6/7-8-1996.
Advocates appeared :
Anand Sachwani, for appellant.
S.R. Borulkar, A.P.P., for State.
Section 50(4)-Criminal Procedure Code (2 of 1974). Section 100(3)-Personal search of a woman-accused-Presence of female panchas necessary-Search of woman accused must be at a scheduled place-Modesty of lady accused must be protected while-Search in presence of male person-Purpose of sub-section 4 of Section 50 be frustrated.-In the Instant case, admittedly personal search of the accused was earned out. The search was carried out by a lady. However, it was not carried out in the presence of lady panchas. The question win be whether when a lady is to be searched is it necessary for the investigating agency to secure the presence of lady panchas. Section 50 of the NDPS Act, 1985, makes provision for search of a female accused. Sub-section (4) of Section 50 says that no female shall be searched by anyone excepting a female.
A search of a woman also would have to be conducted in the presence of panchas to lend credibility to it.
If a woman accused has to be searched, merely calling a female officer to search her will not fulfil the legislative intent. The legislative intent appears to be to protect the lady accuseds modesty while conducting her search. The search has to be conducted by having strict regard for decency. Therefore, the officers will necessarily have to secure the presence of lady panchas. If the search is carried out in the presence of male panchas, the very purpose of sub-section (4) of Section 50 of the NDPS Act and such similar provisions contained in other statutes would be frustrated. What is sought to be achieved by sub-section (4) of Section 50 of the NDPS Act, the relevant provisions of Criminal Procedure Code quoted hereinabove and similar provisions of the Customs Act and the EFRA would be lost if the investigating agency does not carry out the search by a female in the presence of female panchas.
A search of a lady accused would also mean in the light of the Full Bench decision the search of articles on her person or body or search of articles in her immediate possession such as bag or other luggage earned by her or in her physical possession. Court hope and trust that in future the investigating agencies will be very careful and see to it that while carrying out search of a lady accused, the presence of lady panchas is secured and the search is conducted by a female in a secluded place. This would, in the words of the Apex Court, be in consonance with the spirit and the letter of relevant provisions of the Criminal Procedure Code and the NDPS Act.
2. According to the prosecution, secret information was received by the Complainant Mr. Shahasane on 5-8-1990 that the accused along with one South African, one Mr. Zain (since acquitted), was leaving Bombay for Lusacan by Zambia Airways flight No. 02081 which was flying on 6-8-1990 at about 3.15 a.m. from Sahar Airport, Bombay, Module-II. The accused and the other person, both South African nationals were to smuggle large quantity of Mandrex tablets, a psychotropic substance. Mr. Shahasane reduced the said information into writing, sealed the same and handed over the same to his higher authority. He discussed it with them. On the night between 5th and 6th of August, 1990, at about 12.15 hours Mr. Shahasane contacted his Deputy Director Mr. R. N. Kakkar and Mr. Sawant, Superintendent of N.C.B. and called them to the Departure Module-II at Sahar Airport, Bombay at about 1.15 a.m. Thereafter Mr. Shahasane, Deputy Director Mr. Kakkar and Mr. Sawant, Superintendent of N.C.B. met at the Airport and they went to the Departure Module-II at baggage X-ray machine. One Victor Peter, Asstt. Security Officer and Miss Varsha Parkar, Asst. Security Officer were on duty on that night. Two witnesses were called at about 1.30 a.m. on 6-8-1990. They were informed about the information received. After a few minutes a lady i.e. the present accused came there with three suit-cases. The suitcases were brown, green and black in colour. She put them on the X-ray machine. PW-3 Victor Peter noticed some concealment in the two suitcases out of the 3 suitcases which was viewed on the screen. Upon seeing this fact, Mr. Shahasane asked the accused her name and she gave her name as Veneela Tilak. He asked the accused to sit on a chair nearby the Customs Counter along with her baggage.
3. At about 2 a.m. the other person by name Mr. Zain came with black colour suitcase and a shoulder bag. He put the same on X-ray machine and PW-3 Victor Peter found a similar concealment in his suitcase. Mr. Shahasane asked his name to which he replied as Mr. Zain. Both the suspected passengers, two Air-India Officers on duty by name Victor Peter and Varsha Parkar along with two panchas Mr. S. Aigal and Mr. A. Kadam went to the nearby Conference Hall. The search of the baggage of the accused was taken. The brown suitcase was found to contain certain garments and 35 polythene packets containing white tablets suspected to be mandrex a psychotropic substance. The said packets were concealed in the folds of garments. In the other suitcase of green colour 32 similar polythene packets containing white tablets were found. The said polythene packets were concealed in the similar manner.
4. The Officers of the N.C.B. tested one tablet from each act with the help of field testing kit and the same gave positive results for presence of Methaqualone, a psychotropic substance. The officers seized 33.5 kgs of mandrex tablets valued at Rs. 3,35,000/- und
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