Calcutta High Court: The Division Bench comprising of Joymalya Bagchi and Ravi Krishan Kapur JJ., while setting aside the conviction and sentence imposed upon the appellant, stated that the evidence placed are too flimsy and contradictory to inspire confidence.
The factual matrix of the case was that the appellant was detained by the Air Intelligence Unit (AIU) at the NSCBI Airport while he was proceeding towards immigration and subsequently on interrogation and suspicion of possession of contraband a complaint was filed under Sections 21(b) and 23(b) of the NDPS Act. An X-Ray was conducted of the abdomen of the appellant further on being detained under surveillance at the AIU office, 49 pieces of bullet shaped capsules were allegedly recovered from the appellant’s stool. The contents which were recovered consisted of ‘Hashish’.
The appellant had denied all the charges by stating that the procedure to recover contraband was in violation of Section 103 of the Customs Act, also no order of the Magistrate in terms of Section 103(6) of the mentioned Act was obtained.
Therefore, the Court denying the contentions of the respondents and giving due consideration to the circumstances and facts of the case, stated that the appellant was kept under surveillance at the AIU office until the time he defecated ejecting the contraband from his body. The said move by the authorities was said to be a violation of the statutory scheme but also an infringement of the fundamental right under Article 21 of the Constitution of India, especially on no permission been taken from the magistrate for the same.
“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 should be in strict compliance with statutory safeguards”. [Mursaleen Mohammad v. Union of India,2018 SCC OnLine Cal 4885, dated 19-06-2018]
