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Judgment
S. Thangaraj, J.—The Petitioner, who is an accused in C.C. No. 195/98 has filed this petition for his release on bail.
The Respondent/Assistant Commissioner of Customs, Prosecution Unit (Airport), Customs House, Chennai, has filed a complaint against the
Petitioner alleging that on 14.7.98 at 7.45 p.m. when the Petitioner came to Chennai Anna International Airport to board Flight No. UL 126, his
baggages were checked in and when questioned, the Petitioner admitted that he had swallowed 95 capsules containing brown sugar. After
formalities, the Petitioner told them that he has to go lavatory, and he was taken there in the presence of two witnesses and he has excreted four
capsules properly covered. The Petitioner washed and gave the capsules to the officials and when it was examined in the presence of witnesses, it
was found to contain brown sugar. On the next day, he was produced before the Magistrate for remand and thereafter he was taken to the
Government General Hospital, Chennai, where he had excreted some more capsules. When counted, there were totally 95 capsules weighing
about 249 gms of brown sugar heroin. After completion of investigation, charge sheet was laid and the case is pending before the Special Judge for
NDPS Cases, Chennai, and two witnesses have been examined on the side of prosecution. At this stage, the Petitioner has come forward with this
petition for his release on bail.
Learned Counsel for Petitioner has relied on two grounds.
(a) First of all, it was argued that he was intercepted and searched in a place which is not open to public and therefore the Officer concerned, if he
has reason to believe from personal knowledge or information given by any person and taken out in writing that any Narcot Drugs or Psychotropic
Substance was in possession, he should search the said person.
Learned Counsel for the Petitioner has relied on the words ""reason to believe from personal knowledge or information given by any person and
taken out in writing"". It was argued that the information was not taken out in writing, therefore the mandatory provision of Section 42 of NDPS Act
has not been complied with.
Learned Counsel for the Petitioner has relied on a decision of the Delhi High Court in Richard Thomas Wrigley v. Customs 1997 (3) Crimes 89,
wherein it was held that ""Person concerned was required to take down information in writing and forthwith send a copy thereof to his immediate
superior"". Learned Special Public Prosecutor for NDPS cases has argued that the search was conducted in a public place within the meaning of
Section 43 of NDPS Act and therefore such information need not be in writing and a copy need not be sent to the superior officer. In the decision
stated above at page 91 para-4 it was held-
The basic difference between Section 42 and Section 43 is that while the provisions of Section 42 of the Act would be attracted if it involves
search of vehicles, places, premises, Section 43 applies to search and seizure at a public place.
It was argued by the learned Counsel for the Petitioner that the search was made in the Airport in the prohibited place, therefore Section 42
NDPS Act is applicable to the said facts of the case and since the Officer concerned has not recorded his personal knowledge or information in
writing and it amounts to not following the mandatory provision of the Act.
Learned Special Public Prosecutor for NDPS cases has relied on a division bench decision of the Delhi High Court in Utpal Mishra Vs. Nicelai
Christensen, wherein it was held:
The definition of the expression ""public place"" is very wide. For deciding whether a particular area/place is or is not a ""public place"" the determining
factor is whether the same is accessible to or intended to be used by public or not. The accessibility of the public to such a place can be restricted
or unrestricted. A restricted accessibility could be where a fee may have to be paid for entry to such a place or a permission is required for entry
or alike. Even with these restrictions the place would remain a ""public place"". These restrictions by itself would not change the character of a
public place"" and will not result in a public place losing its character as such. That place would be a ""public place"" to which public have or
permitted to have access on payment or otherwise. The Airport or Customs area at the Airport or Customs counter or luggage hold area of
Immigration area or alike at the Airport would thus be a public area. These areas are accessible to the public may be with certain restriction or
requirement a permission for entry into these areas.
This decision gives a direct answer to the point in issue. The Airport is a public place there may be some restrictions to enter inside a particular
area of the Airport even then it will be a public and not a private place or a prohibited area. Therefore, since the occurrence had taken place in a
public place, Section 43 NDPS Act alone is applicable and not Section 42 as contended by the learned Counsel for the Petitioner.
A Division Bench of the Calcutta High Court also rendered a decision in Mona Das v. State of West Bengal 1995 (2) Crimes 427, wherein the
arrest and seizure were made in 243A, A.P.C. Road, Calcutta. The Calcutta High Court held that it was a public place and Section 43 does not
require any prior taking down in writing of any information on the basis of which search was made.
In State of Punjab Vs. Balbir Singh, Their Lordships of the Supreme Court have held:
The empowered Officer while acting u/s 43 need not record any reasons of his belief.
Furthermore, the facts of the case are unique in the sense that the Petitioner herein has swallowed 95 capsules containing brown sugar. Four of the
capsules were execrated by him in the lavatory in the Airport and the remaining capsules in the lavatory in the General Hospital, Chennai and the
Petitioner voluntarily has given a statement to that effect and he himself removed those capsules, washed and handed them over to the officers
concerned. Therefore Section 42(1) NDPC Act will not be applicable to the facts of the present case. For these reasons, the argument of the
learned Counsel for the Petitioner cannot be accepted.
(b) It was argued on the side of the Petitioner that the provisions of Section 50 of NDPS Act, which are mandatory have not been complied with
in this case. To strengthen this argument, the learned Counsel for Petitioner has pointed out that when the Officer concerned had informed the
rights of the Petitioner to be searched before a gazetted Officer nearby or a Magistrate, before the accused could give any reply, the said officer
himself introduced to the accused saying that he was also a gazetted Officer and thereby the accused was compelled to accept the search and
seizure by him. As already stated, we have to bear in mind the unique facts of this case and though there was a search and seizure, the facts very
much differ from other cases. In the instant case, the accused wanted to go to lavatory and when he was taken to the lavatory in the presence of
two witnesses, he had excreted capsules containing brown sugar and the same was recovered under a cover of mahazar in the presence of
witnesses and on the next day (15.7.98), after the remand before the Magistrate, he was taken to the General Hospital, there in the lavatory he had
excreted more capsules in the presence of witnesses and the accused himself had removed, washed those capsules and handed them over to the
officer concerned. The total number of capsules were 95 and the net weight of brown sugar was 249 gms. Before the seizure of more capsules on
the next day the accused was produced before the learned Magistrate for remand to whom the accused did not say anything. Therefore, when the
fact is dissimilar to other cases, we have to apply the provisions and to see whether the said mandatory provision was carried out or not. In these
circumstances of the case, on both the occasions, seizures were made in the presence of two independent witnesses. Before that the accused had
not stated to the Magistrate when he was produced for remand. On the contrary, the accused himself has stated that he had swallowed capsules
containing brown sugar and he felt uneasiness in the stomach thereafter at his request he was taken to toilet. The mandatory provision has been
followed by informing his right to be searched before a gazetted officer or a Magistrate and the accused had opted for the search in the presence
of the said Officer who happened to be a gazetted officer. Under the circumstances of the case, when we see the mandatory provision has been
followed, it is for the trial court to judge after recording the entire evidence in this case.
To strengthen this argument, the accused has relied on the decisions in Mohinder Kumar Vs. The State, Panaji, Goa, Ali Mustaffa Abdul Rahman
Moosa Vs. State of Kerala, and also a decision of this Court in Stanley v. State 1998 MLJ Reports (Criminal) 706.
Their Lordships of the Supreme Court in a recent decision State of Punjab v. Baldev Singh 1999 (6) Supreme 159 have held that
1) to inform the accused to be searched before a Gazetted Officer or a Magistrate is mandatory and however such information may not necessarily
be in writing.
2) failure to inform, would cause prejudice to an accused.
3) after informing such a right, the accused prefers to be taken before a gazetted officer or a Magistrate and thereafter failure to conduct the search
before the said officials would render the recovery of illicit article suspect and vitiate the conviction and sentence.
4) the use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
5) sufficient opportunity should be given to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the
safeguards provided therein were duly complied with.
(6) failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband
suspect and the conviction and sentence of an accused bad and unsustainable in law.
(7) search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof.
(8) An illegal search cannot entitle the prosecution to raise a presumption u/s 54 of the Act.
(9) that the judgment in Pooran Mal''s Case cannot be understood to have laid down that an illicit article seized during a search of a person, on
prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the
illicit article on the person from whom the contraband has been seized during the illegal search, and (1) that the judgment in Ali Mustaff''s case
correctly interprets and distinguishes the judgment in Pooran Mal''s Case and the broad observations made in Prithi Chand''s Case and Jasbir
Sing''s Case not in tune with the correct exposition of law as laid down in Pooran Mal''s Case.
Prima facie, there is evidence to show the Officer concerned has informed of the right of the Petitioner to be searched before a gazetted Officer or
a Magistrate. As held by Their Lordships in the decision in 1999(6) Supreme 159 (stated supra) after giving sufficient opportunity to the
prosecution, the said question has to be decided by the trial Court and the same cannot be decided in a bail application. As far as this petition is
concerned, there is prima facie evidence to show that the said provision has been complied with.
As both the grounds raised by the Petitioner are unacceptable, at this stage the accused cannot be released on bail.
However, it is open to the Petitioner to raise the same point before the trial court and the trial Judge will come to his own conclusion in accordance
with law.
For the foregoing reasons, this petition is liable to be dismissed.
In the result, Crl.O.P. No. 1468/99 is dismissed.