The Bombay High Court has acquitted a Zambian national of the charges of carrying drugs on the ground that she was not informed by officers of her right to be searched before a gazetted officer or a magistrate under section 50 of Narcotic Drugs and Psychotropic Substances Act.
Justices V K Tahilramani and V L Achilya, in a recent order, also quashed and set aside the 15-year sentence imposed on 25-year-old Nancy Tembo, now lodged in Yerwada prison in Pune, by a Mumbai special court.
"We are of the opinion that the appellant deserves to be acquitted. This appeal is being disposed of only on one point i.E. Non-compliance of section 50 of the NDPS Act and we are not touching any other point in the present case", said the judges.
The judges ordered that the convict may be released forthwith from jail if not required in any other case. Her bail petition was also disposed of as it did not survive after her acquittal in the case.
On December 21, 2008, Nancy was intercepted by Customs at Sahar airport while she was checking in to fly to her country. She was found to be carrying 760 gms of heroin concealed in four bundles which she herself disclosed.
Counsel for the appellant Ayaz Khan submitted that before the contraband was seized from the appellant, she was not informed of her right to be searched before a gazetted officer or a magistrate. On account of this non-compliance of section 50 of the NDPS Act, the conviction would be vitiated.
Khan argued that before the drugs were recovered from Nancy, the officer posted at the airport at the relevant time, Laxmi Shekhar, had a reason to believe that the appellant was carrying drugs.
He pointed out that the seizure panchnama showed that prior to the seizure of drugs, the appellant was interrogated whether she was carrying any contraband, narcotic or prohibited goods, to which, she replied in the affirmative.
The court agreed with Khan's submission that once the officers of Air Intelligence unit of Customs had reason to believe that the appellant was carrying contraband drugs on her person, they were duty bound to comply with the mandatory provisions of NDPS Act.
