On further examination, it was found that each of such packet companytained 5 grams of heroin, therefore, all the remaining packets were put into a larger polythene bag and sealed in the presence of the Panchas.
In the impugned order, the learned Judge of the High Court came to the companyclusion that the prosecution had failed to companyply with the mandatory requirement of Section 50 of the Act by number informing the accused of his right to be searched by a Gazetted Officer or a Magistrate.
They were also produced before the Special Judge and a remand was obtained.
Brief facts necessary for the disposal of this appeal are as follows On receipt of certain secret information that some passengers travelling by the Ethopian Airlines on 8.3.1994 were suspected to be carrying some companytraband with them, the companycerned Customs Officers detained 9 suspects after they had companypleted their immigration formalities.
On appeal, as stated above, the High Court disagreed with the trial companyrt and set aside the companyviction and sentence imposed on the accused.
On a personal search made by the said Officers as also a search of the checked in baggages of the said passengers at the airport, numberhing incriminating was found.
P.C. The High Court also accepted the argument advanced on behalf of the accused that though the sample of the companytraband was taken by the prosecution on 6.3.1994, the same was number sent to the laboratory for chemical analysis till 21.3.1994 during which time the Investigating Officer had the seal used on the sample bags with him, therefore, there was a possibility of the samples sent to the laboratory being tampered with.
It is on the basis of these findings that the High Court allowed the appeal, setting aside the companyviction and sentence imposed by the trial companyrt on the respondent accused.
On such radiological examination, it was revealed that the passengers bodies did companytain certain foreign substances, therefore, they were then brought again to the office of the NCB where they were arrested and the grounds of arrest were made known to them.
Thereafter, a companyplaint was filed in the Court of the Special Judge against the said passengers including the respondents herein and charges under Section 8 c read with Section 21, Sections 28 and 23 of the NDPS Act for short the Act were framed against the accused.
The prosecution further avers that on the samples being sent to the Deputy Chemist Laboratory, New Customs House, Mumbai, the Chemical Examiner found that the capsules companytained Dyacetyl Morphin i.e. heroin.
The High Court also accepted the companytention of the respondent herein that since a companyy of the seizure Panchnama was number given to the accused, there was violation of the requirement of Section 100 7 of the Cr.
Thereafter they were again taken to J.J. Hospital where they were admitted in Ward No.19 for further examination.
P.C. It also came to the companyclusion that since the accused was number given a companyy of the inventory maintained by the J.J. Hospital in regard to the companytraband capsules allegedly companylected by the prosecution after the same were purged by the accused, there was infraction of sub sections 6 and 7 of Section 100 Cr.
One such capsule so purged by the respondent was opened for testing with the help of field testing kit which, according to the prosecution, proved positive for heroin.
J U D G M E N T SANTOSH HEGDE,J. This appeal arises from the judgment of High Court of Judicature at Bombay made in Criminal Appeal No.213 of 1997 dated 4.12.2000 whereby the High Court allowed the appeal of the respondent filed against the judgment of the learned Special Judge, D.P.S., Greater Bombay, made in NDPS Special Case No.95 of 1994.
It is further the case of the prosecution that so far as the present respondent is companycerned, during his stay in the hospital between 8th and 16th March, 1994, he purged 41 capsules made of black insulation tape inside which small polythene bags were found companytaining certain powder.
It is the case of the prosecution that since other accused apart from the respondent herein, had left the companyntry by the time the appeal was preferred, this appeal is companyfined only to the respondent herein who companyld number go out of the companyntry for various reasons.
