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2018 Supreme(Cal) 536
IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, Ravi Krishan Kapur, JJ.
Mursaleen Mohammad – Appellant
Vs.
Union of India – Respondent
C.R.A. 513 of 2017 and CRAN 5540 of 2017
Decided On : 19-06-2018
For the Appellant : Manjit Singh and Pawan Kumar Gupta, Advs.
For the Respondent: Somnath Ganguli, Bhaskar Prosad Banerjee and Sudipta Ghosh, Advs.
The main legal point established in the judgment is the requirement for strict procedural compliance, including magisterial permission and medical supervision, for conducting X-ray and recovering contraband from the body of a suspect under the Customs Act. The judgment also underscores the constitutional implications of invasive investigational techniques and the fundamental right to privacy under Article 21 of the Constitution.
Headnote:
NDPS Act - Conviction and Sentence Set Aside - Sections 21(b) & 23(b) of the NDPS Act - Summary of Acts and Sections: The court discussed the provisions of Section 103 of the Customs Act and Section 50 of the NDPS Act. It highlighted the procedural requirements for conducting X-ray of the body of a suspect and the recovery of contraband secreted inside the body. The court emphasized the need for magisterial permission and medical supervision for such actions, and the importance of proving the X-ray report and the involvement of a registered medical practitioner. The court also considered the constitutional implications of invasive investigational techniques and the fundamental right to privacy under Article 21 of the Constitution.
Fact of the Case:
The appellant was convicted for possession of contraband under the NDPS Act based on the recovery of 49 capsules containing hashish from his stool at the airport. The prosecution alleged that the recovery was made after the appellant was subjected to X-ray examination without following the procedural requirements of the Customs Act.
Finding of the Court:
The court found that the prosecution failed to prove the compliance with the procedural requirements for conducting X-ray and recovering contraband from the appellant's body. It also held that the purported statements of the appellant were not proved beyond reasonable doubt. As a result, the conviction and sentence imposed on the appellant were set aside, and the appeal was allowed.
Issues: The key issues revolved around the procedural compliance for conducting X-ray and recovering contraband from the appellant's body, as well as the proof of the appellant's alleged statements.
Ratio Decidendi: The court emphasized the importance of following the procedural requirements of the Customs Act for conducting X-ray and recovering contraband from the body of a suspect. It also highlighted the need for proving the X-ray report and the involvement of a registered medical practitioner. Additionally, the court considered the constitutional implications of invasive investigational techniques and the fundamental right to privacy under Article 21 of the Constitution.
Final Decision: The court set aside the conviction and sentence imposed on the appellant, and the appeal was allowed. The appellant was ordered to be released from custody upon execution of a bond to the satisfaction of the trial court.
Joymalya Bagchi, J.
1. With consent of the parties, this appeal is taken up for hearing, dispensing with preparation of paper books as the lower court records are produced before this Court.
2. The appeal is directed against the order dated 17th April, 2017 passed by the learned Additional Sessions Judge, 6th Court, Barasat, for commission of offences punishable under Sections 21(b) & 23(b) of the NDPS Act and North 24-Paraganas in N.D.P.S. Case No. N 28/2012 convicting the appellant under sections 21(b) & 23(b) of the NDPS Act and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 75,000/- in default to suffer simple imprisonment for five months for commission of offence punishable under section 21(b) of the NDPS Act and to suffer rigorous imprisonment for seven years life and to pay fine of Rs. 75,000/- and in default to suffer further simple imprisonment for five months for commission of the offence punishable under section 23 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 Hongkong 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 conducting X-ray of his abdomen. On receiving X-ray plate and report of the Radiologist, A.I.U. officials found a suspicious white shadow in the abdomen of the appellant. The appellant was kept detained under surveillance at the A.I.U. office. On 11.02.2012 in the morning when he expressed desire to go to the toilet he was taken to the toilet at the arrival area of the airport. From his stool allegedly 49 pieces of bullet shaped capsules were recovered. On examination of the said capsules some brown colour sticky substance was found. The substance was wrapped in insoluble plastic. Contents of the capsules were tested with the detection kit and the material tested positive for Hashish. On 12.02.2012 the appellant was again taken to X-ray centre and X-ray was done of his abdomen but nothing was found. Total weight of the capsules including the contraband was 400 gms. The said contraband articles were seized and samples were drawn from the bulk. After serving of notice under Section 67 of the NDPS Act, the statement of the appellant was recorded and on the basis of his statement he was arrested on 13.02.2012. Subsequently, complaint was filed against the appellant under sections 21(b) & 23(b) of the NDPS Act. Charges were framed under the aforesaid sections against the appellant. He pleaded not guilty and claimed to be tried.
4. In the course of trial, prosecution examined as many as nine witnesses and exhibited a number of documents including the purported voluntary statements of the appellant. The defence of the appellant was one of innocence and false implication in the course of trial. The appellant retracted his statements during trial claiming that he had been made to sign various blank papers during his detention at the airport. In conclusion of trial, the trial judge by order dated 17th April, 2017 convicted and sentenced the appellant, as aforesaid.
5. Mr. Singh, learned Counsel appearing for the appellant submitted that the procedure contem
