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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 21.09.2017

Judgment Pronounced on: 08.01.2018

+ CRL.LP. 238/2017

CUSTOMS ..... APPELLANT

Through: Mr. P.C. Aggarwal, Advocate

Versus

JUARAH & ANR. ..... RESPONDENTS

Through: Mr. Yogesh Kr. Saxena,
Advocate with Mr. Sikander,
Advocate

CORAM:
HON'BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J.
1. The present leave to Appeal has been filed against the
impugned judgment dated 28.02.2017 passed in Sessions Case
No.440805/2016 (Old No. 02/2013) by Sh. Sanjay Garg,
Learned Special Judge (NDPS), Dwarka Courts (in short „the
Trial Court‟) whereby the Respondents Juarah and M. Walai
were acquitted of the charges for the commission of offences
punishable under Section 21/23/29 of the The Narcotic Drugs
and Psychotropic Substances Act, 1985 (in short “the NDPS

CRL.LP. 238/2017 Page 1 of 22

 Act”) on the grounds that the alleged recovery of narcotic drug
from the Respondents cannot be used against the Respondents
as the investigating agency failed to comply with the provision
of Section 50 of the NDPS Act and with the provision of
Section 103 of the Customs Act, 1962 and the statements of the
Respondents under Section 67 of the NDPS Act recorded by the
investigating agency do not meet the legal requirements and as
such the investigating agency defaulted on all the above aspects.
2. The case of the prosecution is that on 01.04.2010 at 12:45 pm,
an information was received by Sh. D.C. Misra (PW8), Joint
Commissioner, Air Customs, IGI Airport, New Delhi, that a
person namely Jura (an Afghan national) and his accomplice
(name not known) would arrive on the same day from Kabul by
Ariana Afghan Airlines, Flight no. FG311, who were suspected
to carry Heroin concealed in their baggage and in their bodies.
Sh. D.C. Misra reduced the information into writing and
forwarded the same to Sh. J.S. Kandhari (PW17), Assistant
Commissioner, Air Customs, IGI Airport, who constituted a
team consisting of Sh. S.C. Rawat (PW5) (Air Customs
Superintendent), Sh. Prashant Prakhar (PW1) (Air Customs
Officer), Sh. Amrik Lal (PW23) (Air Customs officer) and Sh.
S.S. Hundal (PW22) (Air Customs Officer). On the basis of the
above information, the said Jura (respondent No.1) was
identified by the Customs officers after immigration clearance
with the help of his passport, wherein his name was reflected as

CRL.LP. 238/2017 Page 2 of 22

 Juarah. After about ten minutes, respondents M.Walai joined
respondents Juarah after immigration clearance and both of
them started going towards the exit gate of the arrival hall. They
were carrying only one hand baggage. Both the respondents
were intercepted near the exit gate by the Customs officers.
Since both the respondents were not conversant with English
and Hindi, the Customs officers took help of two personnel
from Ariana Afghan Airlines namely Khalid A. Noori (PW13)
and Noor Ali Khosti, who were acquainted with the vernacular
language of the respondents i.e. Farsi. On being asked as to
whether they were carrying any narcotic drug, the respondents
hesitatingly replied in the negative. Both the Respondents were
served with separate notices under Section 50 of the NDPS Act
which were read over to them by the said interpreters. By the
said notices, it was explained to the Respondents that if they
desired, the examination of their baggage and their personal
search could be conducted before a Magistrate or a Gazetted
Officer. However, both the Respondents declined to avail the
same and stated that any Customs officer could take their search
or they could be taken anywhere for medical check-up.
Thereafter, the examination of the baggage of the Respondents
and their personal search was conducted but nothing
incriminatory was recovered. Since the Respondents were
feeling uneasy and had also refused to take any hot/cold drinks
being offered to them, their body search was conducted and it

CRL.LP. 238/2017 Page 3 of 22

 was noticed that their bellies were unusually stiff. Considering
the same, the Respondents were produced before the learned
Duty Magistrate, Patiala House Courts, New Delhi and an
application seeking permission for their medical examination
was filed which was allowed vide order dated 01.04.2010.
3. Accordingly, the Respondents were produced before the Senior
Medical Officer, Safdarjang Hospital, New Delhi, who admitted
both of them in hospital for their proper examination. On
02.04.2010, Dr. M.K. Mittal (PW2) conducted non-contrast CT
scan of the abdomen of the Respondents and found multiple
capsules shaped radio opacities surrounded by air lucency in the
entire large bowel from caecum till rectum suggestive of foreign
bodies. The Respondents Juarah and M. Walai remained
admitted in Safdarjang Hospital from 02.04.2010 to 09.04.2010
and during the said period, they had ejected a total number of 55
capsules weighing 382. 58 gm and 58 capsules weighing 586.67
gms respectively from their rectum. This recovery was made in
the presence of doctors on duty, interpreter and two punch
witnesses. The capsules recovered were sealed and deposited
with the SDO (Arrival) of IGI Airport, New Delhi.
4. After the discharge of the Respondents from the hospital on
09.04.2010, they were taken to Customs office at IGI Airport,
New Delhi for further enquiries. The recovered capsules were
summoned from the SDO (Arrival) and the same were found in
sealed condition. Thereafter, the examination of the aforesaid

CRL.LP. 238/2017 Page 4 of 22

 capsules was conducted and the same were found containing
off-white coloured powdery substance. The net weight of the
substance recovered from the capsules ejected by the
Respondents Juarah and M. Walai was found to be 382. 58 gm
and 586.67 gms respectively. On being tested, the substance
was found positive for Heroin. Three samples each were drawn
from the substance recovered from the capsules ejected by the
respondents and the remaining substance of both respondents
were kept separately. The entire proceedings were recorded in a
panchnama. After completion of the panchnama proceedings,
the respondents were summoned by Sh. Prashant Prakhar
(PW1) for further enquiries and they tendered their voluntary
statements under Section 67 of the NDPS Act with the help of
interpreter Sh. Shams Sherwani. In the said statements, the
respondents admitted about their apprehension and seizure
effected from them. Both the respondents were arrested by Sh.
Prashant Prakhar, who submitted the report under Section 57 of
the NDPS Act regarding the seizure of contraband from the
respondents and their arrest before Sh. S.C. Rawat,
Superintendent Customs. One sample each of the substance
recovered from the respondents were sent to Central Revenues
Control Laboratory (CRCL) for chemical examination, which
were found positive for Heroin.
5. After the completion of investigation, the prosecution filed the
complaint under Sections 21, 23, 28 and 29 of the NDPS Act.

CRL.LP. 238/2017 Page 5 of 22

 On 16.11.2010, the charges for the commission of offences
under sections 21/23/29 of the NDPS Act were framed against
both the Respondents to which they pleaded not guilty and
claimed trial.
6. On behalf of the prosecution 30 witnesses were examined. On
21.08.2016 the statements of the respondents under section 313
Cr.P.C were recorded separately. The respondents in their
respective statements denied that they were carrying the drugs
concealed in their bodies. They pleaded that they were falsely
implicated. After considering the entire evidence on record, the
learned Special Judge by his impugned judgment acquitted the
Respondents. It is this order of acquittal against which leave is
sought to challenge in the appeal.
7. Mr. P.C. Aggarwal, Ld. Counsel for the leave petitioner
contended that the Trial Court had erred in holding that
requirements of section 50 of the NDPS Act has not been
complied with. He argued that notices under section 50 of the
NDPS Act, were duly served upon the respondents separately
through the interpreters PW13 Sh. Khalid A. Noori and PW20
Sh. Sham Sherwani and in their testimony they have proved the
same.
8. He urged that the compliance of Section 50 of the NDPS Act
was automatically completed when the Respondents were
produced before the learned Duty Magistrate, Patiala House
Courts, New Delhi and an application seeking permission for

CRL.LP. 238/2017 Page 6 of 22

 their medical examination was filed by the investigating agency
under Section 103 of the Customs Act which was allowed vide
order dated 01.04.2010. He argued by that the application under
section 103 of the Customs Act was moved because the mode of
concealment was not an ordinary one but it was a special mode
of concealment i.e. concealment inside the body and a medical
examination of the Respondents was required to recover the
concealed articles.
9. He emphasized that the Trial Court failed to appreciate that due
permission was obtained by the investigating agency from the
Ld. Metropolitan Magistrate for the detection of the substance
as concealed by the Respondents in their stomach. It was
submitted that the Trial Court ought to have appreciated the
special circumstances under which the recovery of the
substance i.e. Heroine was made before the doctors of the
Safdarjung Hospital as the process is life threatening in case of
any burst of any capsule inside the stomach.
10. He urged that the medical examination of the Respondents and
the recovery of the substance were made before the concerned
doctors of Safdarjung Hospital and PW13 Khalid A. Noori. He
emphasised that the concerned doctors have been duly
examined by the prosecution as PW2 Dr. M.K. Mittal,
Radioligist, PW3 Dr. Shishir Chandan, PW6 Dr. Yashwant
Kumar, PW10 Dr. Deepak Rajput and PW29 Dr. Mukul Sinha.
He argued that from the testimony of the doctors and PW13

CRL.LP. 238/2017 Page 7 of 22

 Khalid A. Noori, it has been proved that the Respondents were
admitted in the hospital and they had concealed the recovered
substances in their stomach in the shape of capsules and since
all the doctors and PW13 are independent witnesses, and thus
the Trial Court should have believed the recovery from the
bodies of both the Respondents.
11. The Ld. Counsel for the leave petitioner lastly contended that
the statement of the Respondents under Section 67 of the NDPS
Act was made voluntarily because the information and facts
narrated by the Respondents in their respective statements are in
their personal knowledge and same have been corroborated.
12. Per contra, it is submitted by the Ld. Counsel for the
respondents that the Trial Court has rightly acquitted the
respondents after finding non-compliance of mandatory
requirements under section 50 & 67 of the NDPS Act and
Section 103 of the Customs Act. He prayed that the leave
petition to appeal may be declined.
13. I have heard the learned counsel for the leave petitioner and the
learned counsel for the respondents.
14. The important points for consideration to adjudicate in the
present leave petition are:
A. whether the alleged recovery of the narcotic
drug from the Respondents was in compliance of
the provisions of Section 50 of NDPS Act

CRL.LP. 238/2017 Page 8 of 22

 B. whether the alleged recovery of the narcotic
drug from the Respondents was in compliance of
the provisions of Section 103 of the Customs Act
and;
C. Whether the statement of the Respondents
under Section 67 of NDPS Act was as per the
legal requirement or not.
15. In order to appreciate the rival contentions raised by the parties,
it would be profitable to refer to Section 50 of the NDPS Act
which reads as follows:
“50. Conditions under which search
of persons shall be conducted.—
(1) When any officer duly authorised
under section 42 is about to search any
person under the provisions of section
41, section 42 or section 43, he shall, if
such person so requires, take such
person without unnecessary delay to the
nearest Gazetted Officer of any of the
departments mentioned in section 42 or
to the nearest Magistrate.
(2) If such requisition is made, the
officer may detain the person until he
can bring him before the Gazetted
Officer or the Magistrate referred to in
sub-section (1).
(3) The Gazetted Officer or the
Magistrate before whom any such
person is brought shall, if he sees no
reasonable ground for search, forthwith
discharge the person but otherwise shall
direct that search be made.

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 (4) No female shall be searched by
anyone excepting a female.
(5) When an officer duly authorised
under section 42 has reason to believe
that it is not possible to take the person
to be searched to the nearest Gazetted
Officer or Magistrate without the
possibility of the person to be searched
parting with possession of any narcotic
drug or psychotropic substance, or
controlled substance or article or
document, he may, instead of taking
such person to the nearest Gazetted
Officer or Magistrate, proceed to search
the person as provided under section
100 of the Code of Criminal Procedure,
1973 (2 of 1974).
(6) After a search is conducted under
sub-section (5), the officer shall record
the reasons for such belief which
necessitated such search and within
seventy-two hours send a copy thereof
to his immediate official superior.”
16. Section 50 of the NDPC Act prescribes the safeguards to be
followed before conducting personal search of a suspect. It
confers an extremely valuable right upon a suspect to get his
person searched in the presence of a gazetted officer or a
Magistrate. The compliance with the procedural safeguard
contained in the above provision is intended to protect a person
against false accusation and also to lend credibility to the search
and seizure conducted by the empowered officer.

CRL.LP. 238/2017 Page 10 of 22

17. It is the case of the prosecution that the Respondents Juarah and
M. Walai, who were intercepted at IGI Airport on 01.04.2010 at
about 2/2.30 p.m after their arrival from Kabul by Ariana
Afghan Airlines on the basis of prior information against them
of carrying drug in their baggage‟s and bodies, were served with
separate notices under Section 50 of the NDPS Act. PW1 Sh.
Prashant Prakhar, Air Customs Officer, has proved the said
notices as Ex.PW1/A and Ex.PW1/D respectively. He has
deposed that since both the Respondents were not conversant
with English or Hindi, the Customs officers took the help of two
personnel from Ariana Afghan Airlines namely PW13 Sh.
Khalid A. Noori and Sh. Noor Ali Khosti, who explained the
contents of the notices under Section 50 of the NDPS Act to the
Respondents in their vernacular language. By way of the said
notices, the following information was conveyed to the
Respondents:

“The examination of your baggage and your

personal search is to be conducted. If you so
desire, the same could be conducted before a
Magistrate or a Gazetted Officer of Customs.”

18. PW13 Sh. Khalid A. Noori in his cross-examination, clearly and

categorically deposed that he had translated the notice under
section 50 of the NDPS Act verbatim to the Respondents
without any addition or deletion of any word. He also explicitly

CRL.LP. 238/2017 Page 11 of 22

 admitted that since the expression 'legal right' did not find
mention in the aforesaid notice, the Respondents were not
apprised about the same by PW1. From the contents of the
notices served upon the Respondents and the above deposition
of PW13 Sh. Khalid A. Noori, it is apparent that the
Respondents were merely given an option and only an enquiry
was made by the empowered officer to get their search
conducted in the presence of a Gazetted Officer or a Magistrate
and were not apprised of their legal right to be taken to a
Gazetted Officer or nearest Magistrate for the purpose of
their search, if they so required.
19. The Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja
v. State of Gujarat, (2011) 1 SCC 609 while dealing with the
effect of non-compliance and the requirement of strict
compliance of the provisions of Section 50 of the NDPS Act,
1985 by the empowered officer held as under:

„29. In view of the foregoing discussion, we are of

the firm opinion that the object with which right
under Section 50(1) of the NDPS Act, by way of a
safeguard, has been conferred on the suspect, viz.
to check the misuse of power, to avoid harm to
innocent persons and to minimise the allegations
of planting or foisting of false cases by the law
enforcement agencies, it would be imperative on
the part of the empowered officer to apprise the
person intended to be searched of his right to be
searched before a gazetted officer or a
Magistrate. We have no hesitation in holding that

CRL.LP. 238/2017 Page 12 of 22

 in so far as the obligation of the authorised
officer under sub-section (1) of Section 50 of the
NDPS Act is concerned, it is mandatory and
requires a strict compliance. Failure to comply
with the provision would render the recovery of
the illicit article suspect and vitiate the
conviction if the same is recorded only on the
basis of the recovery of the illicit article from
the person of the respondents during such
search. Thereafter, the suspect may or may not
choose to exercise the right provided to him under
the said provision.
30. As observed in Presidential Poll, In re (SCC p.
49, para 13)
“13. …It is the duty of the courts to get at the real
intention of the Legislature by carefully attending
to the whole scope of the provision to be
construed. ‘The key to the opening of every law is
the reason and spirit of the law, it is the animus
imponentis, the intention of the law maker
expressed in the law itself, taken as a whole.’"
31. We are of the opinion that the concept of
"substantial compliance" with the requirement of
Section 50 of the NDPS Act introduced and read
into the mandate of the said Section in Joseph
Fernandez (supra) and Prabha Shankar Dubey
(supra) is neither borne out from the language of
sub-section (1) of Section 50 nor it is in
consonance with the dictum laid down in Baldev
Singh's case (supra). Needless to add that the
question whether or not the procedure prescribed
has been followed and the requirement of Section
50 had been met, is a matter of trial. It would
neither be possible nor feasible to lay down any
absolute formula in that behalf.‟

CRL.LP. 238/2017 Page 13 of 22

20. In view of dictum laid down by the Hon‟ble Supreme Court in
the above judgment, it is apparent that the notices served upon
the Respondents were not in conformity with the provisions of
Section 50 of the NDPS Act and were merely an enquiry by the
empowered officer to the Respondents. By these notices the
respondents were not informed of their legal rights to be
searched before the Magistrate or Gazetted officer. Further it is
note worthy that PW13 Sh. Khalid A. Noori in his cross
examination admitted that he did not know the meaning of
words “Gazetted officer” and “Magistrate” in Persian. Since
both the respondents were not conversant with English, the
meaning of these two words was not conveyed to them in
vernacular language by PW13. Looked from any angle the very
purpose of notice under section 50 was defeated what to speak
of compliance.
21. It is also relevant to advert to Section 103 of the Customs Act
which reads as under:
“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 in sub-
section (2) of section 100 has any goods liable
to confiscation secreted inside his body, he
may detain such person and produce him
without unnecessary delay before the nearest
magistrate.

CRL.LP. 238/2017 Page 14 of 22

 (2) A 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.
(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.
(4) Where a 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 a
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) A 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 a report from a
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 a
registered medical practitioner and such
person shall be bound to comply with such
direction: Provided that in the case of a

CRL.LP. 238/2017 Page 15 of 22

 female no such action shall be taken except on
the advice and under the supervision of a
female registered medical practitioner.
(7) Where any person is brought before a
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 purpose of this section,
the expression “registered medical
practitioner” means any person who holds a
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).”

22. Section 103 of the Customs Act provides for the power to
screen through x-ray, bodies of suspected persons for detecting
hidden goods. Section 103 of the Customs Act will apply when
the body of the suspected person is required to be x-rayed. In
the present case, the customs officers have opted to go for x-ray
examination of the body of the Respondents, and, therefore,
they had to follow the procedure laid down in Section 103 of
the said Act.

CRL.LP. 238/2017 Page 16 of 22

23. Sub-section (1) of Section 103 of the Customs Act provides that
when the proper officer has reason to believe that a suspect has
any goods liable to confiscation secreted inside his body, he
shall produce him before the nearest Magistrate. Sub-section (3)
lays down that if the Magistrate has reasonable ground for
believing that the suspect produced before him by the proper
officer has any such goods secreted inside his body, he may
make an order for getting the body of the suspect screened or
xrayed for the purpose of discovering such goods. Sub-section
(5) casts a obligation upon the radiologist before whom such
suspect is produced, to forward his examination report
alongwith the Xray pictures to the Magistrate without
unnecessary delay. Sub-section (6) provides that upon receipt of
the report of the radiologist, if the Magistrate is satisfied that
such person has any goods liable to confiscation secreted inside
his body, he may pass suitable direction for bringing out such
goods. Sub-section (7) lays down that the Magistrate may order
such person to be kept in such custody and for such period as he
may direct.
24. It is not in dispute that the Customs officers had produced the
respondents before the learned Magistrate on 01.04.2010 and
sought permission for their medical examination. Vide order
dated 01.04.2010 (Ex.PX), the Court had allowed the Customs
officers to get the respondents medically examined and directed
them to file the medical reports on the next day. The said

CRL.LP. 238/2017 Page 17 of 22

 direction was in terms of the provisions of sub-section (3) of
Section 103 of the Customs Act. PW1 Sh. Prashant Prakhar has
deposed in his examination-in-chief that in pursuance to the
above order, the CT scan of the respondents was got conducted
on the intervening night of 01/02.04.2010 at Safdarjang
Hospital and vide his reports (Ex.PW2/A and Ex.PW2/B), Dr.
M.K. Mittal, Radiologist, opined that there were multiple
capsule shaped foreign bodies in the abdomen of both the
respondents. He has further deposed that thereafter, the
respondents were got admitted in the Surgical Emergency Ward
of the Safdarjang Hospital and respondents Juarah and M.
Walai ejected 32 capsules and 9 capsules respectively through
their rectum on 02.04.2010. He has also deposed that since
more capsules were secreted by the respondents in their bodies,
an application was filed before the learned Magistrate on
02.04.2010 and the Court directed both the respondents to
remain admitted in the hospital till the final recovery of
capsules. He has exhibited the said application as Ex.PW1/H.
The Trial Court has rightly not placed reliance upon the said
application as it is not a certified copy and the prosecution has
failed to summon the relevant record from the concerned court
to prove the same. The alleged order dated 02.04.2010 passed
on the said application has also not seen the light of the day.
Infact, in his cross examination PW1 Sh. Prashant Prakhar
admitted that the only permission granted to them by the

CRL.LP. 238/2017 Page 18 of 22

 learned Magistrate was to take the respondents to a hospital
for their medical examination. The above deposition of the
witness clearly falsifies the case of the prosecution that the
admission of the respondents in the hospital from 02.04.2010
to 09.04.2010 and recovery of the suspected contraband
from their bodies during the said period was with the
permission of the Court under sub-sections (6) and (7) of
Section 103 of the Customs Act. Since the investigating
agency had failed to obtain the necessary permission of the
Court in terms of sub-sections (6) and (7) of Section 103 of the
Customs Act, it cannot be said that the alleged recovery of
capsules from the respondents during their admission in the
hospital was in accordance with the procedure prescribed.
25. Consequently, it is evident from the record that the alleged
recovery of narcotic drug from the respondents was in violation
of the safeguards provided in Section 50 of the NDPS Act as
well as Section 103 of the Customs Act and thus, the same
cannot be used as evidence of proof of unlawful possession of
the contraband against the respondents.
26. The Appellant has lastly contended that the statements of the
Respondents under Section 67 of the NDPS Act admitting their
guilt are voluntary and they narrated the facts from their
personal knowledge. The Respondents were detained on
01.04.2010 and their alleged statements under Section 67 of the
NDPS Act were recorded on 09.04.2010 while they were in

CRL.LP. 238/2017 Page 19 of 22

 custody of the Customs officers. The custody of the
Respondents herein till 09.04.2010 was without any order from
the Trial Court and was against the provisions of law. It is a
settled law that while weighing the evidentiary value of a
statement under Section 67 of the NDPS Act, the Court should
not lose sight of the ground realities and should take into
consideration whether the confession was made under duress or
was voluntary in nature. The alleged recovery from the
Respondents was made from 02.04.2010 to 09.04.2010 and the
purported confession was made by the respondents on
09.04.2010 after the recovery of the substance in custody. PW1
in his cross-examination admitted that he had interrogated the
Respondents through the interpreter PW20 and the answers
given by them were recorded in the form of their statements
under Section 67 of the NDPS Act. PW1 Sh. Prashant Prakhar
also admitted that he had told the respondents that they were
required to tender their statements under Section 67 of the
NDPS Act and did not inform them about their right to remain
silent which again is a violation of the law. The Hon’ble
Supreme Court in D.K. Basu v. State of West Bengal 1997
(1) SCC 416 laid down the law that if a person in custody is
subjected to interrogation, he must be informed in clear and
unequivocal terms as to his right to silence. This judgment has
been followed by the Hon’ble Supreme Court in various
cases. In U.O.I vs Bal Mukund & Ors. JT 2009 (5) SC 45

CRL.LP. 238/2017 Page 20 of 22

 while relying upon D.K. Basu case, the Hon’ble Supreme
Court stressed that conviction should not be based merely on
the basis of statement under Section 67 of the NDPS Act,
without independent corroboration. In Bal Mukund‟s case
(supra), the Apex Court observed that if the maker of such a
statement was interrogated while in the custody, it cannot be
said that the statement was voluntary. It was further stressed
that if a person in custody is subjected to interrogation, he must
be informed in clear and unequivocal terms as to his right to
silence. It was also held that a conviction should not be based
merely on the basis of a statement under Section 67 of the
NDPS Act without any independent corroboration. In the case
on hand, the respondents were apprehended on 01.04.2010 and
their alleged statements under Section 67 of the NDPS Act were
recorded on 09.04.2010 while they were in custody of the
Customs officers. In his cross-examination PW1 Sh. Prashant
Prakhar admitted that he had interrogated the respondents
through the interpreter and the answers given by them were
recorded in the form of their statements under Section 67 of the
NDPS Act. PW1 Sh. Prashant Prakhar also admitted that he had
told the respondents that they were required to tender their
statements under Section 67 of the NDPS Act and did not
inform them about their right to remain silent. Considering the
same, the statements of the respondents under Section 67 of the
NDPS Act cannot be said to be voluntary in view of the law laid

CRL.LP. 238/2017 Page 21 of 22

 down in D.K. Basu’s case (supra) and Bal Mukund's case
(supra) and thus no reliance can be placed on the same.
27. In view of above discussion I do not find any merit in the leave
petition and same is dismissed.

(VINOD GOEL)
JUDGE
JANUARY 08, 2018
//

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