Observing that liberty under Article 21 is also available to foreign citizens, the Bombay High Court today ordered compensation and granted bail to Nigerian national incarcerated in 2020 on the basis of an erroneous forensic report.
Justice Bharti Dangre said that the applicant cannot be kept in detention merely because he is a foreign citizen and has criminal antecedents if there was no recovery of drugs under the NDPS Act.
The court suo motu directed the Maharashtra Government to pay the accused Rs. 2 lakh compensation within six weeks for wrongful incarceration after the state submitted that it doesn't have a policy for compensation.
The bail applicant Novafor Samuel Inoamaobi was arrested on October 23, 2020 by the state Anti-Terrorism-Squad alleging that a blue coloured plastic bag weighing around 116.19 gms, a pouch with Saffron coloured heart shape pills weighing around 40.73 gms and some pink coloured tablets weighing around 4.41 gms were seized from him.
The seized material, was sent for analysis. After the report was received, the Nigerian was prosecuted u/s 8C, 20, 22 of the NDPS Act. According to the report from February 2021, the white power was Lidocaine and Tapentadol and pink colour tablets were found to be Caffeine.
The Directorate of Forensic Science Laboratory, State of Maharashtra, Home Department, Kalina opined that these were banned drugs under the NDPS Act.
However, after over a year, the Assistant Director wrote to the ATS in August, admitting his mistake in his earlier report. It was a typing mistake he said and expressed his apology.
Earlier Justice Dangre lambasted the state for this mistake. "The State Authorities, though supreme and in-charge of the law and order situation, which includes implementation of various statutes intended to achieve specific purpose and particularly a special statute like NDPS are expected to behave in a responsible manner," the court observed while directing the State to propose compensation.
However, during the hearing on Friday the undersecretary of the State Home department appeared before the court and informed the bench that there was no policy for compensation in case of an erroneous report. However, there will be a departmental enquiry against the concerned person.
Dissatisfied with the State's response Justice Dangre direct the state to pay compensation. While the judge had already opined that the Nigerian was entitled to bail, his release was ordered on execution of surety of Rs 25,000.
Advocates Taraq Sayed, Advait Tamhankar and Ashwini Achari represented the applicant and APP A. A. Takalkar appeared for the State.
Citation : 2022 LiveLaw (Bom) 287