LexKALEM TUMBA versus STATE OF MAHARASHTRA AND ANR.
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KALEM TUMBA
v.
STATE OF MAHARASHTRA AND ANR.
SEPTEMBER 16, 1999
[G.T. NANAVATI AND S.N. PHUKAN, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 8
(c), 21, 23, 28 and 50.
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Search and seizure-Requirement of information to accused-That he
has a right to be searched in the presence of a gazetted officer or a
Magistrate-Held, applicable to search of a person and not to search of a
baggage.
Foreigner arriving in India-Search of his baggage by Officers of
D Narcotic Department-Recovery of heroif!-'-Admission by accused that seized
packet contained heroin-Corroboration of evidence-Held, conviction was
valid
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Customs Act, 1962 : Sections 108 and 135.
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Accused-Statement recorded under section JOB-Admissibility of
The appellant, a Zaire National, arrived at the Sahar Airport, Bombay -
on 22.11.1990. The officers of the Narcotics Department, PWs 1, 2 and 5,
searched his baggage and recovered 2 Kgs. heroin from his bag. All the
formalities were completed in the presence of two panch witnesses. In his
F statement under Section 108 of the Customs Act, 1962 the appellant admitted
that packets seized from his bag contained heroin. After obtaining the report
of t1'e Chemical Analyser the appellant was prosecuted and convicted for
offences under Section 21 read with Section 8(c) and Section 23 read with
Section 28 and 8(c) of the Narcotic Drugs and Psychotropic Substances Act,
G 1985. He was also convicted under Section 135(i)(a) read with Section
135(i)(ii) of the Customs Act, 1962. On appeal, the High Court confirmed
his conviction but the sentence awarded in default of payment of fine was
reduced.
In appeal to this Court it was contended on behalf of the appellant that
H (i) the mandatory requirement of Section 50 of the Narcotic Drugs and
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KALEMTUMBA v. STATE OF MAHARASHTRA
671
Psychotropic Substances, Act, 1985 was not complied with because before A
the search by the officers of the Narcotic Control Bureau the appellant was
not told that he had a right to be searched in the presence of a gazetted
officer or a Magistrate; (ii) no reliance could be placed on the report of
Chemical Analyser because it was cryptic.
Dismissing the appeal, the Court
HELD: 1. Only when a person of an accused is to be searched then he
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is required to be informed about his right to be examined in presence of a
Gazetted Officer or a Magistrate. If a person is carrying a bag or some other
article with him and narcotic drug or the psychotropic substance is found C
from it, it cannot be said that it was found from his 'person'. {673-B-DJ
2. The High Court was right in relying upon the evidence of witnesses
a_nd the statement recorded under section 108 of the Customs Act and in
confirming the conviction of the appellant. The contention that the report of
the Chemical Analyser had no evidentiary value is untenable. [673-F-G]
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3. Apart from the evidence of the officers of the Narcotics Department
there is evidence of an employee of the Hotel where the appellant had stayed
who has proved some of the entries made in English by the appellant himself
in the register maintained by the hotel. The panchnama, also contains words
'received copy' written by the appellant. Therefore, the contention that no E
reliance should have been placed upon the statement signed by the appellant
which was recorded under Section 108 of the Customs Act as it was not made
by the appellant voluntarily for he did not know what was written in it in
English, while he knows only French," cannot be accepted.
[674-A-C] F
State of Punjab V. Baldev Singh, [1999] 4 sec 595, relied on.
State of Punjab v. Jasbir Singh & Ors., JT, (1995) 9 SC 308, overruled.
CRIMINAL APPEL LA TE JURISDICTION: Criminal Appeal No. 817 G
of 1998.
From the Judgment and Order dated 16.1.98 of the Bombay High Court ·
in Crl. A:No. 401of1994.
Mrs. M. Qamaruddin for th~ Appellant.
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SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
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S.S. Shinde and G.B. Sathe for the Respondents.
The Judgment of the Court was delivered by
NANA V ATI, J. The appellant, a Zaire National, arrived at the Sahar
Airport (Bombay) by Ethiopian Airlines flight on 22.11.90. Mr. Anil Menon,
B Intelligence Officer in Narcotic Control Bureau had received information that
one Zaire National, Kalema Tumba (the appellant), was to arrive by that flight
and was likely to carry sizeable quantity of heroin. That information was
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