Mandatory provisions of the NDPS Act must be followed rigorously; any violation affects the validity of the conviction.

JUDGMENT

This Criminal Appeal has been filed to set aside the impugned order in C.C.No.66 of 2017 dated 17.02.2020 on the file of the learned Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai.

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2.The appellant/accused in C.C.No.66 of 2017 was convicted by the Trial Court by judgment dated 17.02.2020 and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in default, to undergo one year rigorous imprisonment for the offence under Section 8 (c) r/w. 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act] and to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in default, to undergo one year rigorous imprisonment for the offence under (c) r/w. 23(c) of the NDPS Act. Aggrieved against the same, the present appeal is filed. The appeal is prosecuted by a legal aid counsel.

3.The gist of the case is that the respondent received information on 20.01.2017 at 17.00 hours that a South African National, holding Passport No.A04932362 is trafficking 800 grams of Cocaine from Brazil to Chennai via Abu Dhabi in Ethiad Flight No.EY268 P.W.1/Intelligence Officer recorded the information and informed his Superior, obtained permission, thereafter P.W.1 along with his team reached Anna International Airport, Chennai at about 02.00 hours on 21.01.2017, informed the Ethiad Airlines Officials and requested them to be a witness. At about 4.10 hours, P.W.1 identified the appellant while she was crossing the arrival hall of Customs examination area. P.W.1/Intelligence Officer introduced himself to the appellant by showing his identity card and enquired her whether she is carrying any narcotic drugs. The appellant admitted that she swallowed around 81 capsules of narcotic drugs and she was carrying it all the way from Brazil to Chennai and she was informed about Section 50 of NDPS Act, that she has the right to be searched before the Gazetted Officer or a Magistrate, the appellant declined to exercise her right and informed NCB Officer present there can search. In the meanwhile, the appellant informed that she is feeling uncomfortable since she swallowed Cocaine capsules and requested medical treatment. P.W.1 along with a lady Officer took the appellant to Government Hospital, Royapettah. A mahazar was prepared in the Airport at 5.10 hours in the presence of two independent witness of Ethiad Airlines. Thereafter, P.W.1 submitted a request to the Duty Doctor for medical examination, the appellant was admitted, xray of chest and abdomen taken, it confirmed some foreign body present in her body. P.W.4/Senior Surgeon along with a team of Doctors treated the appellant. On 21.01.2017, the appellant ejected around 58 capsules and produced one big capsule pervaginally. Thereafter, the appellant ejected 20 capsules on 24.01.2017, 2 capsules on 25.01.2017 and 1 capsule on 26.01.2017, in total 81 capsules ejected and one big capsule produced by the appellant.

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4.P.W.1/Intelligence Officer called P.W.3/Banumathy, Head Constable and one Bharathidasan, Head Constable attached to Outpost Police Station of Government Hospital, Royapettah to be witnesses along with Divyalakshmi, Surveillance Assistant, in their presence, 82 capsules opened one by one, on opening the capsules white powder found, using the test kit the powder was tested and found it to be Cocaine. Thereafter, all the powders were put together, homogenized, which weighed 1.075 Kgs, two samples of 5 grams each taken separately and marked as S1 and S2. The balance of 1.065 kgs packed in M.O.I and the packing materials used to conceal 82 capsules were put in a green cloth lined