*{ft $-01 & 05 * IN THE HIGH COURT OF DELHI AT NEW DELHI + % CUSTOMS CRL.L.P. No.284l20lL Judgment delivered on:25th November. 2011 * Through: Mr.Yogesh Saxena, Adv. WITH + CRL.L.P.No.275|20I[ versus MOHAMMAD BAGOUR CUSTOMS VETSTIS FIAJI N4OHN4AD CORAM: HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter clr not? 3. -Whether the judgrnent should be reported in the Digest? SURESH KAIL J. (Oral) Crl.L.P.Not.275 & 284 of 201 I ..... Petitioner Through:Mr.P.C.Aggarwal & Mr.Sunder Lal, Advs. Respondent ..... Petitioner Through:Mr.P.C.Aggarwal &. Mr.Sunder Lal, Advs. Through : Mr.Yogern ru*.n1"fr?lot"' { rJ:- Yes Yes Yes Page I of2l Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 1. Since the facts and the larv involved in both the cases are similar, therefore both the petitions are being taken to deliver common judgment. The case of Mohammad Bagour is being taken as a lead case. 2. Vide the instant petition, the petitioner has challenged the impugned order dated 26.03.2011, whereby Ld. Special Judge, NDPS, Dwarka Court, New Delhi has acquitted the respondent / accused from the charges. 3. The case in brief is that on 18.10.2007, accused arrived at IGI Airport by KAM Air-flight No. RQ-0013 holding Passport No. oR686259 dated 13.05.2006. He was carrying only handbag and was not having any checked in baggage. Surveillance lvas kept on him in the arrival Hall at IGI Airport on the suspicion that he may'be carrying some contraband substance. He was stopped near exit Gate of Arrival Hall after crossing the green channel and was asked by the Custom Officeis as to whet'her he was carrying any goods, to be declared to customs, but he replied that he was cariying only personal effects. Thereafter, he was specifically asked whether he was carrying any contraband goods, but he denied. Mr. Ganpat Singh, (ACO) was not satisfied with his reply and he called two independent witnesses to join and in their presence, respondent / accused was again asked whether he \ ras carrying any goods or contraband goods to be declared to customs, but he clairned to be carrying only personal effects. Thereafter notice under Section 50 of NDPS as well as Section 120 of Customs Act was served upon the respondent / accused that he had an option to get the examination of his baggage and personal 'search conducted before a Gazeffed Officer of Customs or a i\4agistrate. Since the respondent / accused did not knolv either Hindi or English Language, as such one Burham Ahmedi, an otficial s,t I,,J' Crl.L.P.Nos.275 & 284 of 2011 Poge2 of21 & from ICAM Airlines, who knew language of the respondent, was asked to make him understand the contents of the notice. The said Burham Ahmedi explained to him the contents of the notice. He expressed that he had no objection if any Custom Officer searched him or his Baggage. The respondent produced his travel documents i.e. the Boarding Card and Afghan Passport. He was taken to Customs Preventive Room in the Arrival Hall for fuither examination. The handbag carried by the respondent / accused was checked in the presence of Panch Witness, which was found containing cloths and personal effects. The bag was emptied of its content and the bottom portion of the bag was then cut opened and a white colour stitched cotton cloth belt with velcro having four partitions was detected, which was pricked with the help of a needle and white pou'der oozed out of the same, suspected to be some Narcotics substance. Respondent / accused was asked about the substance and he affirmed that it lvas Narcotic Substance 4. It is further alleged that after removing the stitches of cotton belt, 4 packets rvrapped with yellow adhesive tape were recoverecl, which were given Mark E,Ir,G and H respectively and were found containing off- white powder which was tested with the fielC test kit and found positive for 'Heroin'. 5. The contents of each bag were weighed and were found to be 60C grams, 1263 grims, 1279 grams and i159 grams' respectively, the total weight being 4301 grams. 6. Thereafter, the said substance was seized as per procedure. Three representatives sample o1' 5 grams eaclt r.r,ere di'arvn fi'om the contents of .I Crl.L.P.Nos.275 & 284 of 2011 Page 3 af2l A. each of the pocket and were given Mark E-I,E 2,E:3,F-|,F-2'F-3'G-1,G- 2,G-3 and H-1,H-2 and H-3 and were kept in 12 poly packs and further placed in t2 brown envelops sealed with custom seal no. 6' over label bearing the details of the contents, th; signatures of Panch Witness, respondent / accused and the complainant. 7. The remaining substance was kept in four separate plastic bags of flamingo duty free and then kept in plastic containers which were wrapped with off White cloth separately and were given Mark-E,F,G and H and were sealed with customs seal no.6 over label bearing the details of the contents, the signatures of the Panch Witness, respondent / accused and the complainant. 8. The statement of the respondent was recorded under Section 67 NDPS Act on 09.10.2007 wherein he admitted the recovery of contraband from his possession. The respondent / accused was alrested under the Provisions of . NDPS Act. Thereafter, report under Section 57 NDPS Act rvas sent by the complainant to Sh. Sanjeev Jain, ACS on 09.10.2007. 9. After sending the information to various authorities by the Assistant Commissioner Preventive on 09.07.2007 regarding the Heroin and arrest of the accused on 10.10.2007, the representative samples Mark E-1, F-1, G-1 a1d H-1 along with test memo in triplicate were deposited in CRCL by the Complainant along u'ith forwarding letter duly signed by the ACS. Vide test report F.No.1A{D/R/2007|CLD - 493 to 496 (N) dated 2t.11.2007 of CRCL, it rn'as opined that on analysis the sample Mark E-1, F-1, G-l and H-l ansrvered positive as 'Diacetyhnorphine'. The remaining samples were again sent to CRCI- an 75.02.2008 through Sh. Ashok Kumar (ACO) for ) Crl.L.P.Nos.275 & 284 of 2011 Page 4 of 2l g determining the purlty percentage. Fresh report dated 05.03.2008 was received in this regard from CRCL and from the same, the purity in sample Mark E-1, F-1,G-1 and H-l was found to be as follows:- -)l Mark E1 FI G1 H1 10. After cornpletion, the casd against the respondent / accused as filed under Section 21, 23 and 28 NDPS Act. On the basis of the material available on record charge was also framed under the aforementioned provisions, to which he plead not guilty and claimed trial. 1 1. The prosecution in support of its case has examined 7 rvitnesses. 12. ' After hearing both the parties, ld. Trial Judge passed his judgement on the basis of evidence on record that admittedly accused was intercepted at IGI Airport on his arrival from Afghanistan. However, it is denied by him that any incriminating subsiance was recovered from his possession. To prove the recovery of the contraband from the possession of the accused tlie prosecution has examined only PW-5, who is the complainant/ seizing / arresting officer in the present case. In his testimony he deposed about interception of respondent / accused at IGI Airport u'hich is admitted by the respondent / accused. The said witness testit-red about sen ice of notice U/s 50 NDPS Act upon the respondent / accused. He testified that thereafter the hand bag of the accused was checked and was found containing at its bottom portion, *'hite colour cotton cloth stitched velcro beit u'hich vvas found containing one small and three big packets containing substance suspected to Percentage DAM (Heroin) 37.6 40.7 39.7 39.2 Cit.t.P.Nos.z7s & 284 of 2011 Page 5 of 2l Y @ be Heroin, However, his aforesaid testimony has not been corroborated by any independent evidence as both the panch witnesses and even Burhan Ahmadi who could.have supported his testimony in this regard being the interpretor in whose presence all the proceedings were conducted, have not been examined by the prosecution and these witnesses were dropped on the request of Ld. SPP for Customs. 13. It is further recorded that though non-examination of independent witnesses by itself does not become fatal to the prosecution. However, it has to be appreciated differently in the facts and circumstances of each case. So far the present case is concerned, prosecution itself has clairned that the accused was not aware of Hindi or English language and as such Burhan Ahmadi who was acquainted with Afghani language i.e. Dari and Farsi was joined in the proceedings to explain notice U/s 50 NDPS Act and notice U/s 102 Customs Act upon the accused, to explain panchnama proceedings to the accused and to record his statement U/s 67 NDPS Act. The non- exdminatiol of Burhan Ahmadi effects the prosecution case adversely as it was only this r.vitness rvho could have explained to the court the manner in which both the notices U/s 50 NDPS Act and U/s 102 Customs Act were served upon the respondent / accused. 14. Ld. Triai Judge has also recorded that the offence under NDPS A<;t is a grave one. Procedural safeguards provided to the accused under a statute require strict compliance. Section 50 NDPS Act provides an extremely valuable right to the concerned person/ suspect to get his person searched in presence of a Gazettecl Officer or a Magistrate. The compliance with the procedural safeguards contained in Sec. 50 of NDPS Act, is intended to J Crl.L.P.Nos.275 & 284 of 201 I Page 6 of 21 \ protect a person against false accusation and frivolous charges, as also to lend creditability to the search and seizure conducted by the empowered officer. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the search and seizure procee<ling and it woultl also strengthen the prosecution case. It is the duty of the empowered officer to inform the concerned person/ suspect of the existence of his right to have his search conducted before a Gazetted Officer or by a Magistrate, so as to enable him to avail of that right. The prosecution must at the trial establish that the empowered officer'had conveyed the information to the concerned person of his/ her right of being searched before the Magistrate or a Gazelted Officer at the time of intended search. 15. Learned Trial Judge has reliecl upon on the judgment of Hon'ble Supreme Court in State of Puniob v. Buldev Singh JT 1999(4) SC 595 that courts have to be satisfied at the trial cf the case about due compliance with the requiretnents provided in Sec. 50 NDPS Act, that no presumption U/s 54 NDpS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court that the requirements of Sec. 50 were duly complied with. It is held that the safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Sec. 50 of NDPS Act to ensure that persons. are Lrnly searched r,vith a view to maintain veracity of evidence derived from such search. The severe punishments have been provided under the Act for mere possession of illicit drugs and narcotics substances. Personal search, more particularly for off'ences under the NDPS Act are crucial means of obtaining evidence of possession and it is, therefore, necessary that the sa'feguards -_) Crl.L.P.Nos.275 & 284 o120II Page 7 of2l Y provided in Sec. 50 of the Act are observed scrupulously. It was further held that provisions of sub section (1) of Section 50 of NDPS Act, make it imperative for the empowered officer to inform the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. 16. The Apex Court also noted that in case of Baldev Singh (Supra) it was not necessary that the infbrmation requirecl to be given under Section 50 of NDPS Act, should be in a prescribed form or in rvriting but it was mandatory that the suspect was made aware of the existence of his right to be searched befbre a Gazetted officer or a Magistrate, if so required by him. 17. The Trial Judge has also refered the case of Viiaysinh Clmndublttt Jaeleja v. Stste of Gujarot 2010(4) LRC 225 (SC) wherein it was held that: "The object with which right under Section 50(I) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocenl persons ancl tc minintise the all.egations of planting or loisting of fatse cases by the lavt enforcenrcnt agencies, it tvould be imperative on the part of the empov,ered fficer to apprise the pe)rson intended to be searched of his right to be searchecl before a gazetted officer or (r Magistrate. The obligation of tle atfthorised officer wtder sztbsection (.1) of Sectiott 50 of the i ", Crl.L.P.Nos.275 & 284 of 201I Page 8 oJ'21 ,Y NDPS Act is concerned, it is mandatory and requires a strict compliance. " _ .,. 18. So far as the present case is concerned, as per the prosecution, notice U/s 50 NDPS Act rvas served upon the respondent/ accused with the help of interpretor Borhan Ahrnadi as the accused had language problem and was unable to understand the Hindi and English language. PW 5 testified in his chief examination that in the presence of panch witnesses he had disclosed to the accused that he had the option that the search of his baggage and himself could be conducted befote a Magistrate or a Gazelted officer of a Custom officer to vihich he told that he did not know Hindi and English language. However, he understood the Farsi and Dari languages. He stated that by the expression of respondent/accused he came to know that he did not know Hindi or English language and knew only Dari and,Farsi languages and one persotl namely Borhan Ahmadi was called from KAM Airline who was acqueinted rvith Dari and Farsi languages, to translate the proceedings to the accused in his own language. On his request Borhan Ahmadi explained the contents of both the notices to the accused and informed him that he had option to get search of his baggage or his person in the presence of a Magistrate or a Gazetted Officer of customs and accused told Borhan ^Ahmadi that he had no objection if any custom officer took the search of his person or his baggage. Thereafter the signatures of both the panch.r,vitnesses, accused and Borhan Ahmadi were taken orr both thc notices Ex. PW 5/A and Ex. PW 5/B respectively. The respondent / accused had also'put his thunrb impression on the notices at point F and G. That I.h Crl.L.P.Nos.275 & 284 of 2011 Page 9 of 2'l -\r Borhan Ahmadi had made an endorsement at point X to X on both the notices to the effect, "Read over and explained in vernaculars to Mr Mohd. Bagour who consented for search by any custom fficer and signed in token of acc,eptance." D. So far as Borhan Ahmadi is concerned, he has not been examined in the present case on the ground that he is not residing at the given address. The panch witnesses namely Mohd. Shafiq and Bhupeuder Singh have also not been examined, despite last opportunity they were not produced by the prosecution and were dropped from the array of the witnesses by the court vide order dated: 11.01 .20II and01.2.2011 respectively. PW 5 admitted in answer to court queries that the consent of the accused for his search by the custom officer was not taken in writing in his own language and that no reason has been given for not obtaining his consent in his own handwriting lvhich could have been later on translated to the co.urt by the interpreter. In the absence of examination of Borhan Ahmadi, particularly, when PW 5 himself is not aware of the Afghani language, as such it has not been proved on record in any manner that the accused was explained the contents of the notices U/s 50 NDPS Act and even U/s 102 Customs Act properly. The endorsement of Borhan Ahmadi made on the notice Ex. PW 5/B from point X to X that "Read over and explained in vernaculars to Mr Mohd- Bagour vtho consented for search by any custom fficer and signed in token of acceptance, " itself shorvs that the accused had not been explained in any manner. It rvas his legal right to get his person or baggage searched in the presence of a Gazetted officer or a Magistrate, as in the notice U/s 50 NDPS Act it is not mentioned at all that it u'as the legal right of the accused. ,t.L Crl.L.P.Nos.275 & 284 of 2011 Page l0 of2l 20. Ld. Trial Judge has also recorded that even the statement of Borhan Ahmadi rJls 67 NDPS Act Ex. PW 5/Q does not find mention the manner in which the notice U/s 50 NDPS Act was served upon the accused nor it finds mention that the accused was explained that it was his legal right to get his search conducted in the presence of a Magistrate or aGazetted officer. 21. Further ld. Trial Judge has also observed that if the notice was served upon the accused by Borhan Ahmadi at the instance of PW5, then the reply of the notice should have been taken from the respondent / accused in his own handrvritirig which could have cleared all the doubts about the manner in which it was served and whether the respondent / accused had understood the contents and the purpose of Sec. 50 of the Act and rvhether he had consented for his search to be conducted by the officer of customs or befcire 'a Magistrate or any other the Gazetted Officer 22. Learned SPP for Customs argucd before the Trial Court and iearned counsel for the appellant has also argued before this Court that the notice under Section 50 NDPS Act was not required to b6 served upon the respondent/accused in the present case as recovery was effected from his handbag and nor li'om his person. In support of his arguments he has relied upon the case of Ajmer Singh v. Stute of Horysllo 201A( 1) LRC 278 (SC) and has referreci to para 13 wherein the contention of the appellant was recorded that the provision of Section 50 of the Act would also apply, while searching the bug, briefcase etc., carried by the person and its llon cornpliance lvould be fatal to the proceedings initiated under the Act. Their lordships find no merit in the contention of the learned counsel. It requires to be noticecl that question of compliance cr non-compliance of Section 50 of Crl.L.P.Nas.275 & 284 of 2011 Page I I of2l f the NDPS Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc., does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by a Gazetted Officer or Magistrate for the purpose of search. Thirdly, this issue was considered in Madan Lul v. State of Himachsl Pradesh (2003) Crl.L.J. 3868 wherein the Court has observed, "A bare reading of Section 50 of the NDPS Act, shows that it only applies in a case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises." 23. This issue has already decided in the case of (Jnion of India vs. Sltcth Alom emd Anrs. reported in 2009 (3) RCR (Criminal) and held that before the recovery v/as effected from his bag, baggage and at the time rvhen notice was seryed upon the respondents /accused, it rvas not knorvn to PW5 that recovery would not be eff'ected from his person but fionr his bag or baggage. 24. The Trial Judge has recorded that notice Ex PW5IB served upon the respondents/accused was not in compliance of provisions of Section 50 of NDPS Act, as it was partial notice and as the respondents/accused had offered to be searched in the presence of a Gazetted Officer of a custom besides a Magistrate. The purpose behind Section 50(1) NDPS Act, is to avoid criticisrn of arbitrary and high handed action against authorised officer. It has to be borne in mind ttrat a Gazetted officer belonging to the clepartment which is effecting a seizure may have bias in favour of the department, u,hereas ncl such bias can be attributed to a Magistrate or a Crl.L.P.Nos.275 & 284 of 20II Page I2 of 2l x Gazetted Officer belonging to the other department. Thus, associating a Gazetted Officer with the raiding party makes such officer impliedly interested in the success of the raid. 25. Aclmittedly, in the present case the notice under Section'50 of NDPS A.ct, served to respondent/accused and option was given to the accused thar ifhe so desires his baggage and personal search could be conducted before tlre Magistrate or a Gazetted Officer of a Customs. 26. The Trial Judge has also relied upon a case of Kuldeep Singh v. NCB 2000(1) JCC Detlti 74 in which it has been held by this Couri that the Gazetted Officer belonging to the department which is effecting a seizure may harre bias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus in the present case the offer given to the accused to be searchecl by a Magistrate ol by a Gazetted Officer of the custom lvas partial offer as the accused was not given an option for her baggage and personal search to be conducted in the prosence of aGazetted Ottcer belonging to the other department. 27. Learned Trial Judge has opined that neither notice Ex.PW5lB rvas proper notice nor it was served upen the accused and the accused was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate lvhich is mandatorY. 28. The Trial Judge iras also recorded that non-examination of Borhan Ahmadi is fatal to the prosecution, as he was the best witness to prove as to what u,as explained by him on behalf of the complainant, to the accuserl Crl.L.P.Nos.275 & 284 of 20II Pageljof2l _{ while serving notice under Section 50 NDPS Act. Mere examination of pW5 and his testimony to the effect that notice was served through BorhZrn Ahmadi upon the accused by itself is not sufficient. 29. The Trial Judge has referred to the case of Supreme Court in Vijaysingh Chondubltu Jacleio v. Stste of Guiarot 2010(4) LRC 225 (SC); wherein it is recorded that the provision of Section 50 of NDPS Act, are mandatory and non-compliance renders the recovery of illicit article suspect. Thus the non-compliance of these provisions is viern'ed seriously and adverse inference is dralvn.