Procedure for recovery of Narcotics from inside the body of suspect should not be cruel: Calcutta HC

The Calcutta High Court has held that the procedure for intrusive search for recovery of Narcotics/ contraband from the body of the suspect should be in strict compliance with Section 103 of the Customs Act and should not fall foul of Article 21. It should be in consonance with dignity of the suspect and should not involve any cruel, degrading or inhuman treatment..In the process, the Court turned down the case of the prosecution that Hashish was recovered from the excreta of the accused, on the ground that there was neither magisterial permission as contemplated in Section 103 of the Customs Act nor was it supported by independent witnesses..The judgment was delivered by a Bench of Justices Joymalya Bagchi and Ravi Krishan Kapur in an appeal against conviction by trial court for offences under the Narcotic and Psychotropic Substances Act..As per the prosecution case, the appellant was intercepted at the airport by the Air Intelligence Unit (AIU) officials and was taken to AIU room for interrogation. On interrogation, the appellant denied he was carrying any contraband. As the AIU officials were suspicious due to the movements and behaviour of the appellant, they did not rely on his version and made prayer before the learned Chief Judicial Magistrate, Barasat to permit them to conduct X-ray of his abdomen..After obtaining permission, the X-Ray was taken and a suspicious white shadow was found in the abdomen of the appellant. The appellant was kept detained under surveillance at the AIU office..In the morning, when the appellant expressed desire to go to the toilet, he was taken to the toilet at the arrival area of the airport. From his stool allegedly 49 pieces of bullet shaped capsules were recovered. Contents of the capsules were tested with the detection kit and the material tested positive for Hashish..The case of the accused was that the procedure contemplated under Section 103 of the Customs Act to recover contraband articles secreted inside the body from a suspect, was not followed in the instant case..He submitted that no order was obtained from the Magistrate to recover the contraband secreted inside the body of the appellant in terms of Section 103 (6) of the Act. No consent had also been taken from the appellant for such action to bring out the goods..Alleged recovery of contraband from the body of the appellant was not done in the presence of a registered medical practitioner, it was submitted. Regarding the alleged voluntary statements made by the appellant, it was his contention that he had been made to sign on blank papers during his detention at the airport..The Union of India contended that the appellant had agreed to have X-ray of his abdomen and due permission was also obtained from the Magistrate in that regard. X-ray report showed that there was suspicious substance inside the stomach of the appellant and even before the authorities could obtain permission from the learned Magistrate, the appellant passed stool resulting in recovery of the capsules containing hashish. In such a factual matrix, it was submitted that the question of obtaining permission under Section 103 (6) of the Customs Act did not arise..The Court first proceeded to examine the applicability of various statutory provisions in the instant case..It observed that search of a person under the NDPS Act is governed by Section 50 of the said Act. However, the aforesaid provision relates to search of the physical body of a suspect and does not advert to the procedure which is to be adopted for an intrusive search inside the body of the suspect like X-ray etc. Provision in that regard is delineated in Section 103 of the Customs Act, the Court said before examining the scope of Section 103 of the Customs Act..It then summarised the procedure to be followed for detecting and/or recovering contrabands secreted inside the body..As per the procedure, magisterial intervention is needed not only for the purpose of holding X-ray of the body of the suspect but also for undertaking suitable action for recovery of the contraband secreted inside the body upon receipt of report of the radiologist..“Initial magisterial permission for conducting X-ray of the suspect is not a substitute of 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”, it held..The Court went on to note that the radiologist who purportedly conducted X-ray of the abdomen of the suspect was neither examined nor his report sent along with X-ray plates to the Magistrate for suitable action as contemplated under the law..On the other hand, X-ray plates along with report of the radiologist were produced by P.W.1. Radiologist was not examined in the instant case and hence, it cannot be said that the report of the radiologist along with X-ray plates was duly proved..“It is trite law that mere production of a document is not proof of its contents. The radiologist who conducted the X-ray and prepared the report ought to have been examined to prove the same, more particularly when such report had not been admitted in the course of trial by the defence.”.Coming to the crucial issue of magisterial permission for recovery of the Hashish, the court noted that though the X-Ray was taken, the appellant was produced before the Magistrate only the next day..The appellant was kept detained in the AIU office under surveillance till it was claimed that he defecated resulting in ejection of the contraband. It was, therefore, the contention of the prosecution that the ejection of the contraband was through normal metabolic process and compliance with Section 103 of the Customs Act was neither applicable nor feasible..The Court, however, held that no explanation was forthcoming why the appellant with the report of the Radiologist was not produced before the Magistrate on the first day itself..Further, it was also observed by the court the appellant was not under medical supervision when he was under surveillance at the AIU office in spite of direction by the Magistrate for providing medical aid. The procedure followed by the AIU, the court held, was violative of Article 21..“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.”.In this context, the court proceeded to rule on the significance of strict compliance with statutory safeguards while conducting intrusive search for recovery of Narcotics/ contraband from the body of the suspect..It noted that the 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..Placing reliance on the privacy judgment in Justice K.S Puttaswamy (Retd) and Anr. vs. Union Of India, [(2017) 10 SCC 1], it held that “suitable action” contemplated in sub section (6) of section 103 of the Customs Act for recovery of contraband inside the body of a suspect must not only be in accordance with the procedure established by law but must also be compatible to the dignity of the individual and ought not subject him to cruel, inhuman treatment..Such exercise being invasive in nature must not only be in strict compliance with the statutory safeguards as contemplated in Section 103 of the Customs Act but also must be in consonance with the dignity of the suspect and ought not involve any cruel, degrading or inhuman treatment lest such procedure runs foul of Article 21 of the Constitution..Holding that the same was not satisfied in the instant case, the Court allowed the appeal and set aside the conviction..Read the judgment below.