The Bombay High Court has held that an airport qualifies as a ‘public place’ within Explanation to Section 43 of the NDPS Act, and therefore Section 43, not Section 42, governs search and seizure of body-packers intercepted at airports, rendering the 72-hour information-recording requirement under Section 42(1) and (2) inapplicable. The Court said that a Section 50 NDPS notice must affirmatively communicate the accused’s right to be searched before an independent Gazetted Officer or Magistrate.
Where, after a Section 50 search yields nothing, the accused voluntarily admits to having concealed contraband inside his body and submits himself for medical action, sub-section (8) of Section 103 of the Customs Act (read with Section 79 of the NDPS Act) applies and no fresh Section 50 notice is required, added the Court.
The Court explained that in body-packer cases where capsules are homogeneous, identical in size, shape and content, and form a single batch for a single act of smuggling, mixing of contents and drawing of composite samples substantially complies with Standing Instruction 1/88, Standing Order 1/89 and Rules 3 and 10 of the NDPS-SSSD Rules, 2022, and any irregularity is a procedural matter to be tested at trial and not at the bail stage.
Accordingly, prolonged incarceration of more than four years without meaningful advancement of trial violates the right to speedy trial under Article 21 of the Constitution and may warrant bail even where the rigours of Section 37 of the NDPS Act are otherwise attracted, added the Court.
A Single Judge Bench of Justice Shyam C. Chandak observed that the airport is a ‘public place’ within the Explanation to Section 43 of the NDPS Act, and therefore Section 43 and not Section 42, governs the search and seizure action in all six cases, making the contention of non-compliance with Section 42(1) and (2) (relating to recording and forwarding of information to the superior officer within 72 hours) wholly irrelevant.
The Court further noted that the Section 50 notices merely asked the accused ‘if you so require, such search will be conducted in presence of the nearest Gazetted Officer or Magistrate’, which failed to affirmatively communicate the statutory right to be searched before an independent Gazetted Officer or Magistrate, rendering them non-compliant with Section 50 NDPS Act.
The Court observed that the search was conducted by Shri Deshmukh himself, who was part of the raiding team and therefore not an ‘independent’ Gazetted Officer, vitiating that part of the search action. The Court found the Section 50 notice misleading because it gave the accused a ‘third option’ of being searched before a specifically named Gazetted Officer (Shri Manish Kumar), thereby suggesting and curtailing the free exercise of choice.
The Court noted that after the Section 50 search yielded nothing and the Gazetted Officer left, the accused voluntarily admitted to having ingested capsules and submitted themselves for medical action, attracting sub-section (8) of Section 103 of the Customs Act, which expressly dispenses with the requirement of a fresh Section 50 notice. The Court observed a medical emergency (stomach-ache and uneasiness) which made it impossible to take the accused to the nearest Gazetted Officer or Magistrate without risk of the capsules being parted with, thereby invoking sub-section (5) of Section 50 NDPS and the word ‘otherwise’ in sub-section (6) of Section 103 of the Customs Act.
On the sampling procedure, the Court observed that in body-packer cases where capsules are homogeneous, identical in size, shape and content, and form a single batch for a single act of smuggling, the mixing of contents and drawing of composite samples substantially complies with Standing Instruction 1/88, Standing Order 1/89 and Rules 3 and 10 of the NDPS-SSSD Rules, 2022, and any irregularity is a procedural matter to be tested at trial and not at the bail stage. The Court also noted that non-compliance with Section 100(7) CrPC (now Section 103 BNSS) regarding supply of panchanama copies does not per se vitiate the prosecution unless prejudice is shown, and that signatures of panchas on the Section 50 notice are not a statutory requirement.
Briefly, six foreign nationals, 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), were arrested at Chhatrapati Shivaji Maharaj International Airport, Mumbai, between April 2022 and June 2023, on charges of smuggling narcotics into India by swallowing capsules (commonly called ‘body-packing’).
In each case, the accused arrived on flights from African destinations via Middle Eastern transit hubs, were intercepted by the Air Intelligence Unit (AIU) of Customs or the Directorate of Revenue Intelligence (DRI) on the basis of profiling or specific intelligence, and were served notices under Section 50 of the NDPS Act before being taken to Sir J.J. Hospital, Mumbai, where they ejected between 43 and 95 capsules containing heroin or cocaine weighing between 504 grams and 1,302 grams.
The capsules were tested with drug field testing kits, seized under panchanama, and samples were later sent for chemical analysis which confirmed the presence of heroin or cocaine in commercial quantities. Statements under Section 67 of the NDPS Act were recorded, in which each accused admitted to having been recruited by foreign handlers for a promised payment ranging from USD 1,500 to USD 2,000. The Special Judge (NDPS) declined bail to all six applicants, prompting them to approach the Bombay High Court.
