Holding that airport is a ‘public place’ under Section 43 of the NDPS Act and that airport-to-hospital body-packer seizures attract Section 43 NDPS Act, the Bombay High Court has ruled that defective Section 50 notice does not automatically entitle accused to bail where independent evidence of possession exists.
At the same time, the Court clarified that Section 42 NDPS Act is inapplicable where the search and seizure action is initiated at an airport and completed at a government hospital, both being ‘public places’ within the meaning of Section 43 of the NDPS Act, and therefore the requirement of recording information and forwarding it to the superior officer within 72 hours under Section 42(2) is not mandatory in such cases.
The Court pointed out that a notice under Section 50 of the NDPS Act must affirmatively communicate to the person about to be searched his right to be searched before an independent Gazetted Officer or Magistrate. Merely asking whether he ‘so requires’ such search amounts to seeking his opinion and is non-compliant with the mandate of Section 50.
Where an accused admits to having secreted contraband inside his body and voluntarily submits himself for suitable medical action, the procedure under Section 103(8) of the Customs Act, read with Section 79 of the NDPS Act, is attracted, and no fresh notice under Section 50 is required before the medical examination and purging of capsules, added the Court.
Further, the High Court explained that in ‘body packer syndrome’ cases, where the capsules are homogeneous in size, shape and content, the mixing of the contraband substance from all capsules before drawing samples is substantially in compliance with Standing Instruction 1/88, Standing Order 1/89, and Rules 3 and 10 of the NDPS-SSSD Rules, and the use of the words ‘normally’ and ‘advisable’ in those instructions renders them directory rather than mandatory.
Prolonged incarceration of over four years without sufficient advancement of trial can entitle an accused to bail even where the rigours of Section 37 of the NDPS Act are attracted, particularly where the detention has turned punitive and runs counter to the presumption of innocence and the right to speedy trial guaranteed under Article 21 of the Constitution, added the Court.
A Single Judge Bench of Justice Shyam C. Chandak observed that non-compliance of Section 50 NDPS does not automatically entitle the accused to bail where independent evidence in the form of medical examination, X-ray, and natural purging of capsules proves possession of the contraband. Under Section 103(8) of the Customs Act read with Section 79 of the NDPS Act, where an accused voluntarily admits to body-packing and submits to medical action, no fresh Section 50 notice is required. The sampling procedure in body-packer cases involving homogeneous capsules substantially complies with the Standing Instructions and Rules.
Applying the rigours of Section 37 NDPS, the Court rejected bail in two cases but allowed bail in four cases where the applicants had undergone incarceration of over four years without sufficient trial advancement, subject to stringent conditions including a Personal Recognizance Bond of Rs. 2.50 lakhs, periodic attendance before the DRI, surrender of travel documents, and registration with the FRRO.
Briefly, all six bail applicants are foreign nationals who were intercepted at Chhatrapati Shivaji Maharaj International Airport, Mumbai, on the suspicion of having ingested capsules containing narcotic substances. The applicants include Ronald Barisigara (Uganda), Abdulai Francis Bundu (Sierra Leone), Raymond Anane Kyeremateng (Ghana), Brandon Sulpisious Migadde (Uganda), Avaligbe Norbert Michel Semevo (Benin), and Halima Naiga (Uganda). Each applicant was intercepted either by the Air Intelligence Unit (AIU) of Customs or by the Directorate of Revenue Intelligence (DRI) based on profiling or specific intelligence.
After being served with notices under Section 50 of the NDPS Act, the applicants were produced before the Magistrate, who granted permission under Section 103 of the Customs Act for medical examination, X-ray and detention. The applicants were admitted to J.J. Hospital, Mumbai, where they ejected capsules containing heroin or cocaine through natural purging. The contraband recovered ranged from 504 grams to 1302 grams, all of which were commercial quantities. Statements under Section 67 of the NDPS Act were recorded, and the applicants were arrested. The Special Judge declined bail, prompting the present applications before the High Court.
