Even though state officials are considered supreme and in charge of law and order they are expected to act responsibly, the Bombay High Court said while granting bail to a Nigerian national, who spent almost two years in prison because of a chemical analyser's mistake.
The chemical analyser wrote to the Anti-Terrorism Squad earlier this year and clarified that no contraband was found in the items seized from the Nigerian in the year 2020, only pain killers and caffeine. He was from the forensic sciences laboratory in Kalina.
"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," Justice Dangre observed.
The judge directed the Additional Chief Secretary of the State Home Department to submit a proposal for compensation, observing that even a foreign national was entitled to 'liberty' and procedures should have been followed.
"Liberty of an individual is of paramount importance and it is the fulcrum of the Indian democracy. Recognized as a fundamental right, enshrined in Article 2, it is available to every person, citizens and foreigners alike."
The incarceration of the applicant, with the above clarification, has therefore, become unlawful, as, but for this report, no offence could have been made out against him, the court said.
Justice Dangre observed that even though the prosecutor may have still tried to oppose bail citing the man's nationality and criminal antecedents, "merely because of the same, he cannot be incarcerated as the State is expected to follow due procedure while depriving even a foreign national of his liberty."
The bail applicant Novafor Samuel Inoamaobi was arrested on October 23, 2020 by the ATS after 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 Ecstasy tablets weighing around 4.41 gms were seized from him.
The seized material was sent for analysis and the Nigerian was prosecuted u/s 8C, 20, 22 of the NDPS Act, based on the report.
However, after over a year, the Assistant Director realized his mistake and wrote to the ATS admitting his mistake in his earlier report which claimed that the seized material were banned drugs under the NDPS Act. This was a typing mistake he said and expressed his apology.
"The error, which is sought to be explained and projected as a typing error, is a blatant mistake, which is admitted by the Assistant Director after more than a year, of incarceration of the applicant. It deserves to be looked at seriously, but for the said report, the applicant could not have been detained," the court said and adjourned the matter for August 12, 2022 for the State's response.
Case Title: Novafor Samuel Inoamaobi Versus The State of Maharashtra
Citation : 2022 LiveLaw (Bom) 284