The Calcutta High Court recently asserted that the procedure for recovery of narcotics from inside the body of the suspect should not be cruel and invasive as to fall foul of Article 21 of the Constitution of India.
The Bench comprising Justice Joymalya Bagchi and Justice Ravi Krishan Kapur explained, “Procedure entailing recovery of Narcotics/ contraband from the body of the suspect requires invasion into the physical body of the suspect and an encroachment into his privacy.
Such exercise being invasive in nature must not only be in strict compliance of statutory safeguards as contemplated in Section 103 of the Customs Act but also must be in consonance to the dignity of the suspect and ought not involve any cruel, degrading or inhuman treatment lest such procedure runs fowl of Article 21 of the Constitution.”
The Court was hearing an appeal filed by one Mursaleen Mohammad, challenging an order passed in April last year by the Additional Sessions Judge, convicting him under the NDPS Act for possessing Hashish in his stomach.
The Appellant was apprehended at the Netaji Subhas Chandra Bose International Airport, by the Air Intelligence Unit (AIU) when he was about to leave for Hong Kong via Dhaka. During interrogation, the AAI suspected that he was in possession of contraband, and hence, approached the Chief Judicial magistrate, Barasat seeking permission to conduct an X-ray of his abdomen.
The X-ray revealed a white shadow in the Appellant’s abdomen. He was therefore detained under surveillance at the AIU office. The next morning, 49 pieces of bullet shaped capsules were allegedly recovered from the Appellant’s stool. Contents of the capsules were tested with the detection kit and the material tested positive for Hashish.
The Appellant had now denied all charges, essentially alleging violation of the procedure contemplated under Section 103 of the Customs Act to recover contraband articles secreted inside the body from a suspect. He had pointed out that no order had been obtained from the Magistrate to recover the contraband from his body in terms of Section 103 (6) of the Act.
He had further submitted that the alleged recovery of the contraband was to be done in the presence of a registered medical practitioner. Besides, he had submitted that his permission was not obtained for bringing out the goods from his body, and that he had been made to sign on blank papers during his detention at the airport.
The authorities, on the other hand, had contended that the Appellant had agreed to undergo an X-ray and due permission was also obtained from the Magistrate for the same. They had asserted that even before the authorities could obtain permission from the Magistrate for recovery of the contraband, the Appellant had passed stool resulting in recovery of the capsules. In such circumstances, they contended that the question of obtaining permission under Section 103 (6) of the Customs Act did not arise.
The Court, however, did not agree with the authorities, opining that the initial permission for conducting X-ray of the suspect cannot substitute the subsequent magisterial sanction for undertaking suitable action to bring out the contraband in the presence of a registered medical practitioner upon receipt of the X-ray report. Accordingly, it ruled that the suspect’s consent for having an X-ray conducted on his body cannot be treated as valid consent for the subsequent procedure to be conducted in the absence of a medical practitioner.
As regards the necessity of adhering to the procedure under Section 103 (6) of the Act, the Court noted that the authorities had failed to produce the Appellant or submit his X-ray reports to the Magistrate the same day. It further noted that the Appellant was not provided medical supervision while being detained at the AIU office. This, the Court opined, amounted to a violation of his rights under Article 21 of the Constitution of India.
It observed, “Hence the procedure followed by the A.I.U officials in keeping the appellant under surveillance in their office without producing him before the Magistrate immediately upon screening on the selfsame day and/or failing to extend medical supervision to him during his detention and alleged recovery while in their custody is not only violative of the statutory scheme but also an infringement of his fundamental right to just, fair and humane procedure contemplated under Article 21 of the Constitution.”
The Court then ruled that the prosecution had failed to prove its case beyond reasonable doubt, opining that the evidence before it is “too flimsy and contradictory to inspire confidence”. The Appeal was therefore allowed, setting aside the Appellant’s conviction.
Read the Judgment Here