BAIL APPLN./2602/2024 of DAWOOD RASAULI Vs NARCOTICS CONTROL BUREAU

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ BAIL APPLN. 2602/2024

DAWOOD RASAULI .....Petitioner

Through: Naveen Malhotra, Mr. Tausif Alam, Mr S. S. Aggarwal and Ms. Meghna Bali, Advocates.

versus

NARCOTICS CONTROL BUREAU .....Respondent

Through: Mr. Utsav Singh Bains and Mr. Rana Debnath, Advocates. (thru VC)

CORAM:HON'BLE MR. JUSTICE ANISH DAYAL

O R R25.10.2024

1.As per the status report filed by the respondent/ NCB, pursuant to an information received on 18[th] November, 2020 that two Afghan Nationals including the petitioner and Baser Ahmed Tajik were arriving at IGI Airport,

New Delhi from Dubai by Emirates Flight No. EK-512 on 19[th] November, 2020, both suspected to have swallowed/ ingested contraband for transportation within their own body.

2.On 19[th]November 2020 both accused were apprehended at the arrival area, post immigration, and were admitted to Safdarjung Hospital for medical management where they remained till 25[th] November 2020.

3.The petitioner expelled 51 capsules containing 342 grams of Heroin and accused Baser Ahmed Tajik expelled 77 capsules containing 448 grams of Heroin through passage of stool. Property was seized in the presence of

independent witnesses and samples were drawn at the spot. Being commercial quantities the bar of Section 37 of the NDPS Act is attracted, as per the prosecution, as well as the statutory presumption under Sections 35 and 54 of the NDPS Act.

4.Petitioner has been in custody for about almost four weeks and 13 witnesses had to be examined, out of which, four have been examined and three have been partly examined.

5.Counsel for the petitioner contends that the recovery itself was suspicious considering that the apprehension was done from the arrival area, without the photograph or identification, in the absence of any secret information, as nothing is stated on record. Moreover no Section 50 NDPS notice was given, which as per the decision in Ranjan Kumar Chadha v. State

of Himachal Pradesh, 2023:INSC:878 of the Supreme Court, is mandatory, for any search concerning the human body. Further he contended that no X-ray report has been presented and that the petitioner was illegally detained for six days in the custody of the NCB officers in the hospital without any information to the family.

6.Reliance has also been placed on Section 103 of the Customs Act 1962, which provides for power to screen or x-ray bodies of suspected persons for detecting goods secreted inside their body, which can only be done after detention and production before the nearest Magistrate

7.Mr. Utsav Singh Bains, counsel for the NCB states that principles of Ranjan Kumar Chadha (supra) do apply to this case, since the search was of person who had ingested the capsules. Further, he states that 103 Customs Act must be read in its plain language.

8.It is noted from the status report that two accused were apprehended on suspicion that they had swallowed/ ingested contraband drugs and without taking them to magistrate, were admitted to Safdarjung Hospital for medical management where they remained till 25[th] November 2020. Post expelling the capsules, case property was seized and samples were drawn at the spot. 9.Notwithstanding any other circumstance, the Supreme Court in Ranjan Kumar Chadha (supra) has categorically stated that process of search relates to human body, then Section 50 NDPS provisions are mandatory. In this regard, relevant para is reproduced hereunder, for ready reference:

“89. The larger Bench also considered the dictionary meanings of the word “person” and held that any article like bag, briefcase or container cannot under any circumstance be considered as person or part thereof. This Court stated that one of the tests couldbe, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out thesearch. If that be so, then it will be search of person. However, this Court was quick to clarify that bag or briefcase or any such article cannot be interpreted to mean person. It was held as under:—

“10. We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to thescheme of the Act and the context in which it has been usedin the Section it naturally means human being or livingindividual unit and not an artificial person. The word hasto be understood in broad common sense manner and, therefore, not naked or nude body of human being but the manner in which normal human being will move about in civilized society. Therefore, the most

“”appropriate meaning of the word person appears to be“-the body of human being as presented to public viewusually with its appropriate coverings and clothings”. Ina civilized society appropriate coverings and clothingsare considered absolutely essential and no sane humanbeing comes in the gaze of others without appropriatecoverings and clothings. The appropriate coverings willinclude footwear also as normally it is considered an'essential article to be worn while moving outside oneshome. Such appropriate coverings or clothings orfootwear, after being worn, move along with the humanbody without any appreciable or extra effort. Once worn,they would not normally get detached from the body of thehuman being unless some specific effort in that directionis made. For interpreting the provision, rare cases ofsome religious monks and sages, who, according to thetenets of their religious belief do not cover their body withclothings, are not to be taken notice of. Therefore, theword “person” would mean human being withappropriate coverings and clothings and also footwear.

11. bag, briefcase or any such article or container, etc.can, under no circumstances, be treated as body of ahuman being. They are given separate name and areidentifiable as such. They cannot even remotely be treated to be part of the body of human being. Depending upon the physical capacity of person, he may carry any number of items like bag, briefcase, suitcase, tin box, thaila, jhola, gathri, holdall, carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be saidthat person is carrying particular article, specifying

the manner in which it was carried like hand, shoulder,back or head, etc. Therefore, it is not possible to includethese articles within the ambit of the word “person” occurring in Section 50 of the Act.

12. An incriminating article can be kept concealed in thebody or clothings or coverings in different manner or inthe footwear. While making search of such type of

articles, which have been kept so concealed, it will

certainly come within the ambit of the word “search of”person. One of the tests, which can be applied is, wherein the process of search the human body comes into

contact or shall have to be touched by the person carrying

out the search, it will be search of person. Some

-indication of this is provided by Subsection (4) of Section

50 of the Act, which provides that no female shall be

searched by anyone excepting female. The legislature

has consciously made this provision as while conducting

search of female, her body may come in contact or may

need to be touched and, therefore, it should be done only

by female. In the case of bag, briefcase or any such

article or container, etc., they would not normally move

along with the body of the human being unless some extra

or special effort is made. Either they have to be carried in

hand or hung on the shoulder or back or placed on the

head. They can be easily and in no time placed away from

the body of the carrier. In order to make search of such

type of objects, the body of the carrier will not come in

contact of the person conducting the search. Such objects

cannot be said to be inextricably connected with the

person, namely, the body of the human being. Inextricable

means incapable of being disentangled or untied orforming maze or tangle from which it is impossible toget free.”

(Emphasis supplied)

10.Section 103 of Customs Act, 1962 is also extracted hereunder, for ease of reference:

“103. Power to screen or X-ray bodies of suspected persons for detecting secreted goods.— [(1) Where the proper officer has reason to believe that any person referred to insub-section (2) of Section 100 has any goods liable toconfiscation secreted inside his body, he may detain suchperson and shall,—

(a) with the prior approval of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as soon as practicable, screen or scan such person using suchequipment as may be available at the customs station, butwithout prejudice to any of the rights available to suchperson under any other law for the time being in force,including his consent for such screening or scanning, andforward report of such screening or scanning to thenearest magistrate if such goods appear to be secreted inside his body; or Customs or Assistant Commissioner of Customs, as soon as practicable, screen or scan such person using suchequipment as may be available at the customs station, butwithout prejudice to any of the rights available to suchperson under any other law for the time being in force,including his consent for such screening or scanning, andforward report of such screening or scanning to thenearest magistrate if such goods appear to be secreted inside his body; or

(b) produce him without unnecessary delay before the nearest magistrate.] nearest magistrate.]

(2) magistrate before whom any person is brought under sub-section (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person. sub-section (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person.

(3) Where any such magistrate has reasonable ground for believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed, he may make an order to that effect. believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed, he may make an order to that effect.

(4) Where magistrate has made any order under sub-section (3), in relation to any person, the proper officer shall, as soon as practicable, take such person before radiologist possessing qualifications recognized by the Central Government for the purpose of this section, and such person shall allow the radiologist to screen or X-ray his body.

(5) radiologist before whom any person is brought under sub-section (4) shall, after screening or X-raying the body of such person, forward his report, together with any X-ray pictures taken by him, to the magistrate without unnecessary delay.

(6) Where on receipt of report [from the proper officer under clause (a) of sub-section (1) or] from radiologist under sub-section (5) or otherwise, the magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advice and under the supervision of registered medical practitioner and such person shall be bound to comply with such direction:

Provided that in the case of female no such action shall be taken except on the advice and under the supervision of female registered medical practitioner.

(7) Where any person is brought before magistrate under

this section, such magistrate may for the purpose of enforcing the provisions of this section order such person to be kept in such custody and for such period as he may direct.

(8) Nothing in this section shall apply to any person referred to in sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods.

Explanation.—For the purposes of this section, the expression “registered medical practitioner” means any person who holds qualification granted by an authority specified in the Schedule to the Indian Medical Degrees Act, 1916 (7 of 1916), or notified under Section 3 of that Act, or by an authority specified in any of the Schedules to the Indian Medical Council Act, 1956 (102 of 1956).”

11.It is quite evident that as per Section 103 (1) Customs Act, if there is reason to believe that person has any goods which are liable to confiscation,

“secreted inside his body”, he may be detained and produced without unnecessary delay before the nearest Magistrate. If the Magistrate sees no reasonable ground for believing that such person has any good secretive inside his body, he shall discharge the person. However, if the Magistrate does have reasonable ground to believe otherwise, he may make an order that body of such person be screened or X-rayed.

12.In these circumstances, considering that mandatory statutory procedures, both under Section 50 NDPS and Section 103 Customs Act have not been followed, the Court is inclined to grant bail to petitioner herein, considering that these aspects may dent the case of prosecution, may generate reasonable doubt in favour of the accused, though it will be subject to the rigours of trial.

13.As per section 37 NDPS Act, the Court, on the basis of irregular procedure carried out, believes that petitioner is not prima facie guilty of the offence charged with and there is no allegation that he shall repeat the offence; no case is made out that petitioner is likely to commit any offence while out on bail.

14.In light of the above, and that the trial in the matter is likely to take some time, and it would not be prudent to keep the petitioner behind bars for an indefinite period, this Court finds it to be fit case for grant of bail to the petitioner. Consequently, the petitioner is directed to be released on bail on furnishing personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount subject to the satisfaction of the Trial Court, further subject to the following conditions:

i.Petitioner will not leave the country without prior permission of the Court. the Court.

ii.Petitioner shall provide permanent address to the Trial Court. The petitioner shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. The petitioner shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address.

iii.Petitioner shall appear before the Court as and when the matter is taken up for hearing. is taken up for hearing.

iv.Petitioner shall join investigation as and when called by the IO concerned. concerned.

v.Petitioner shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned.

vi.Petitioner will mark presence physically before the concerned I.O. every Monday at 4 p.m., and will be not kept waiting for more than an hour. I.O. every Monday at 4 p.m., and will be not kept waiting for more than an hour.

vii. Petitioner shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case. communicate with or come in contact with any of the prosecution witnesses, the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case.

15.Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter.

16.Copy of the order be sent to the Jail Superintendent for information and necessary compliance.

17.Accordingly, the petition is disposed of. Pending applications (if any) are disposed of as infructuous.

18.Assistance of Mr. Utsav Singh Bains, counsel for NCB in this matter, is well appreciated.

19.Order be uploaded on the website of this Court.

OCTOBER 25, 2024/sm

ANISH DAYAL, J