Bangalore District Court
Customs Intillegence Unit (Ciu) vs Baah Ampadu Kwadwo on 1 December, 2025
KABC010051632023
THE COURT OF THE XXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
: P R E S E N T:
SMT.LATHA,
XXXIII ACC & SJ & SPL. JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 1st DAY OF DECEMBER 2025
SPL.C.C. NO.499/2023
COMPLAINANT : The Inspector of Customs,
Customs Intelligence Unit (CIU),
Airport & Air Cargo Complex,
Bangalore 560 300.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : Baah Ampadu Kwadwo,
S/o. Sri Joseph Ampadu,
Aged about 53 years,
Passport No.G3257471,
Taifa Junction, Abaete Road,
Greater Accra, Ghana.
(Rep. by Sri PRB., Adv.)
2
1. Date of Commission of offence: 19.9.2022
2. Date of report of offence: 19.9.2022
3. Arrest of the accused : 19.9.2022
4. Date of release of accused on In judicial custody
bail:
5. Period undergone in custody: In judicial custody
6. Date of commencing of 17.12.2024
recording Evidence :
7. Date of closing of Evidence : 15.2.2025
8. Name of the complainant: Inspector of Customs,
Airport and Air Cargo
9. Offence complained of : U/s.8(c) R/w.Sec.21(C),
23© & 28 of NDPS Act
10. Opinion of the Judge :
Charges not proved
11. Order of sentence : Accused is Acquitted
::JUDGMENT::
The Inspector of Customs, Bengaluru filed complaint filed complaint against the accused in R.No.10/2022-23 for the offences punishable U/Sec.8(c) R/w. Sec.21(C), 23© & 28 of NDPS Act.
CCH-33 3 Spl.C.C.499/2023
2. The case of the prosecution in nutshell is as under:-
On 19.9.2022 the Inspector of Customs/complainant has developed intelligence with regard to one Ghana National by name Baah Ampadu Kwadwo who would be attempting to smuggle narcotic substance into India in Ethiopian Airlines Flight No. ET 690 from Accra (Ghanna) via Addis Ababa to Bengaluru. He along with panchas and his team arrived at KIA, Bengaluru around 7.00 hours and informed the panch witnesses to co-operate for raid. At 8.10 hours the said Ethiopian Airlines landed at Bangalore International Airport. At around 8.50 hours the said passenger entered the customers arrival area. He intercepted him and verified the passport and luggage baggages. On questioning about the contraband he replied in the negative. During search of baggage no incriminatory article was found. Further on persistently enquiring the accused about the contraband at last he admitted that he 4 had ingested some drug capsules. The accused was taken to Aster hospital and was admitted at 12.15 hours on 19.9.2022 for medical examination for retrieval of foreign bodies that were concealed inside his body. During scan it is revealed that numerous sausage shaped foreign bodies oval shaped capsules were present inside the body. The doctors through medical process egested the tablets till 16.20 hours on 21.9.2022 in all there were 104 capsules. It was cut opened and in that there was a powder like substance, when it was tested it responded positive for cocaine. The total weight of cocaine was 1234 847 grams.
The contraband, packing material and other articles were seized under a mahazar. The statement of accused was recorded by issuing notice U/s.67 of NDPS Act, Thereafter, he was arrested produced before the court and remanded to judicial custody. The seized sample was sent to CFSL and report from CFSL was received. On conclusion of investigation, complaint is filed against the accused for the offences punishable U/s.8(c) R/w. Sec.21(c), 23(c) & 28 of CCH-33 5 Spl.C.C.499/2023 NDPS Act. He is in Judicial Custody since the date of arrest.
3. On presentation of complaint, accused was secured from judicial custody. The learned Predecessor-in-office of this Court, on perusing the contents of the complaint and the annexed documents, took cognizance of the offences punishable under sections 8(c) R/w. Sec.21(c), 23(c) & 28 of NDPS Act, 1985. The copy of the complaint and annexed documents were furnished to the learned counsel appearing for the accused as provided under Sec. 207 of the Criminal Procedure Code, 1973. Since the offences levelled against the accused are cognizable in nature, the predecessor-in-
office of this Court heard the learned counsel for the accused and Special Prosecutor before charge and framed Charges against the accused for the offences punishable under sections 21(c), 23(c) & 28 of the NDPS Act, 1985 on 4.10.202, read-over and explained to the accused in the language known to him. He pleaded not guilty and claimed 6 to be tried. Therefore, posted the case for recording the evidence for the prosecution.
4. The prosecution to prove the Charges levelled against the accused examined seven witnesses as P.W.1 to P.W.7 and got 14 documents marked as Exs.P1 to P.14 and got two material objects marked as M.Os.1 & 2. After conclusion of prosecution evidence, the accused was examined U/Sec.313 of Cr.P.C. However, he denied the incriminating statements made against him and did not offer defence evidence.
5. Heard the arguments of Spl.P.P., and learned counsel for the accused.
6. Having heard the learned Special Public Prosecutor, the learned Counsel for the accused and on perusal of the record as well as the written arguments filed by the learned Spl.P.P., the following points that arise for consideration is as follows :-
Point No. 1 : Whether the prosecution CCH-33
7 Spl.C.C.499/2023 proves beyond reasonable doubt that on 19.9.2022 at about 8.50 hours at Kempegowda International Airport, Devanahalli, Bangalore accused herein who is an Ghana National traveled in Ethiopian Airways from Accra (Ghanna) via Addis Ababa to Bangalore and when the inspector of Customs intercepted him he was found in illegal possession of 1234 grams of Cocaine in your body without holding any licence or permission and thereby accused has committed the offence punishable U/s.21(c) of NDPS Act?
Point No. 2 : Whether the prosecution proves that the accused on the above said date, time and place being a National of Ghana traveled from Accra (Ghanna) via Addis Ababa to Bangalore in Ethiopian Airways has imported 1234 grams of Cocaine without holding any licence or permission and indulged in illicit drug trafficking, thereby accused has committed the offences punishable U/s.23(c) & 28 of NDPS Act?
8Point No.3: What Order ?
7. My findings on the above points are as under:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per the final order for the following:
::REASONS::
8. POINT No.1 & 2 :- These two points are taken up together for discussion to avoid repetition and for brevity.
9. The prosecution in order to substantiate its case got the CW.3 Sri. Abhishek the then Superintendent of Customs has been examined as PW.3. PW.3 has deposed that on 19.9.2022 in the early mornings, he received an information from Dy. Commissioner, CIU, AP&ACC that one Gana Nationalist Sri. Bahh-Ampadu-Kwadwo would arrive to Bengaluru by flight No. ET690 from Adi Sababa, that they formed a team and reached Airport at about 7.00 am., that the flight landed at 8.30 am., that when they were waiting CCH-33 9 Spl.C.C.499/2023 near the Customs Arrival Hall, the suspected person came from the departure area, that the Customs officers got themselves introduced to him by showing their ID card and on enquiry he showed his Passport and he was carrying a hand bag.
9b. PW.3 further deposed that they informed about the credible information received by them to the said passenger and on enquiry they came to know that he was carrying prohibited goods, that they apprised his legal right available u/Sec. 50 of NDPS Act to him to have his personal search before a Gazetted Officer or before any Magistrate, that he consented to have personal search in the presence of Gazetted Officer, that they issued notice to him and during the course of personal search no incriminatory article was found in his possession.
9c. PW.3 has further deposed that on further enquiry he disclosed that he consumed contraband, that they took him to the Court and sought permission to subject him for 10 medical examination, that taken him to Aster Hospital, Hebbal on 19.9.2022, that in the presence of two independent witnesses they got egested the capsules from the body of the accused and had drawn a mahazar as per Ex.P2, that on testing the said contraband it gave positive result for cocaine.
10. CW6 Sri Deepak Kumar, the then Inspector of Customs examined as PW.4. PW.4 has deposed in conformity with the evidence of PW.3.
11. CW.4 Sri D.S.Avinash has been examined as PW.1. He is an independent witness and according to him on 19.9.2022 the customs officers requested him to be present at the time of drawing mahazar by seizing the contraband from a passenger travelled from Ghana nation, that on 19.9.2022 at about 11.00 am., the accused was taken into custody of Customs officers that the officers obtained permission from Court and took him to Aster hospital, Hebbal, that on subjecting him for CT scan the CCH-33 11 Spl.C.C.499/2023 doctor came to know about the contraband concealed in his body, that the doctors had taken him to the ICU, that they kept him in ICU for three days, that from his body 104 capsules had been egested, that on testing it, it was cocaine and they packed those capsules in zip lock cover and also wax sealed it by preparing a mahazar which is at Ex.P1.
12. CW.1 Sri Ramesh has been examined as PW.2.
This witness is the witness to Ex.P2 mahazar. According to him the Customs officers called him on 19.9.2022 and taken the custody of accused person in the Airport, that on suspecting him of carrying certain contraband the officers by informing him that he has to be taken to the hospital had drawn Ex.P2 Mahazar. This witness has also identified his signature on Ex.P2 mahazar.
13. CW.10 Dr.Brinda M.S., examined as PW.5. This witness is the duty doctor of Aster CMI hospital, Hebbal.
She deposed that on 19.9.2022 the Customs officers had taken a foreign passenger for emergent treatment, that his 12 name was Baah Ampadu Kwadwo who was aged about 52 years, that on examination he said that he has body pain and on subjecting him for CT scan and x-ray he found certain capsules concealed in his stomach and for three days the said accused egested 104 capsules, accordingly he issued Ex.P14 discharge summary.
14. CW.7 Sri Vinay Singh Sikarwar has been examined as PW.6. He is also one of the superintendent of customs and he was working in Bangalore since June 2022 till January 2025. According to him he was present at the time of intercepting the accused on 19.9.2022 along with PWs.3 and 4. This witness has also deposed in conformity with the evidence of PW.3 and 4.
15. CW.11 Dr.Saarah Khan has been examined as PW.7. This witness has also deposed as deposed by Dr.Bindhu MS of Aster hospital as he was working as Sr. Specialist Radiology department Aster CMI hospital.
CCH-33 13 Spl.C.C.499/2023
16. The prosecution apart from examining seven witnesses has also got 14 documents marked as Ex.P1 to
14. Ex.P1 is the mahazar dated 19.09.2022. As seen from this mahazar, on 19.09.2022, the accused was intercepted in Kempegowda International Airport at about 11 am., and on due enquiry, the intercepting officers came to know that the accused consumed some contraband and he had been taken to Aster CMI Hospital, that in the said hospital, the accused egested 104 oval-shaped capsules and recovered the same in accordance with law by drawing Ex.P1 mahazar. PW1 Avinash is one of the independent witnesses who signed Ex.P1 mahazar.
17. Ex.P2 is also a mahazar drawn on 19.09.2022 at about 07.00 a.m. As seen from this document on 19.09.2022 at about 08.00 a.m. the Ethiopian Airlines Flight No. ET690 landed at Bangalore International Airport and the officers have identified the accused person and intercepted the accused. That on due enquiry, the officers 14 came to know that the accused person ingested some capsules and which were causing pain to him. At the time of interception, Ex.P2 mahazar was drawn. PW2 Sri Ramesh is one of the independent witnesses signed Ex.P2 mahazar and PW2 deposed about the drawing of said mahazar.
18. Ex.P3 is the copy of the notice issued under Section 50 of NDPS Act. The Superintendent of Customs, Sri Abhishek has issued this notice to the accused, obtaining choice of personal search in the presence of Magistrate or in the presence of Gazetted officer. The accused, by his handwriting, has opted the option of his body search in the presence of gazetted officer and signed Ex.P3 mahazar.
Ex.P3 notice.
19. Ex.P4 is the statement of accused recorded under Section 67 of NDPS Act. Ex.P5 is the application submitted before the court under Section 52A(2) of NDPS Act for drawing inventory. Ex.P6 is the inventory report. Ex.P7 is the complaint lodged by the Investigating Officer. Ex.P8 to CCH-33 15 Spl.C.C.499/2023 13 are the City Scan Reports and Ex.P14 is the discharge summary as contemplated under Section 42 of NDPS Act that as soon as the information is received by the empowered officer, he shall reduce the said information into writing and shall forward the said information to his immediate superior in office.
Section 42(1) and Section 42(2) reads as under;
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any 16 document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
CCH-33 17 Spl.C.C.499/2023 (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official superior.] For more understanding it is also necessary to rely on the decision reported in. At this stage, it is relevant to rely on the decision of Karnail Singh Vs., State of Haryana reported in (2009) 8 SCC 539. In the said decision in Para No.35 it is held as under:-
35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any 18 delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in CCH-33 19 Spl.C.C.499/2023 writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act.
Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.
In so far as this matter is concerned, this Court could not find any document to show that there was compliance of Section 42(1) & 42(2) of NDPS Act. The compliance of Section 42(1) & 42(2) is a mandatory requirement and if the said provision has not been complied with, it is fatal to the case of the prosecution as observed herein above in the decision of Karnail Singh.
20. As could be seen from Ex.P3, the Investigating Officer has issued notice under Section 50 of NDPS Act. It is true that the notice required under Section 50 had been served on the accused and the accused opted to be searched his body in the presence of gazetted officer. However the 20 right of the accused contemplated under Section 50 has to be apprised by the Investigating Officer and not by the gazetted officers who is superior to the Investigating Officer.
At this stage, it is relevant to rely on the decision of Ranjan Kumar Chadha vs., State of Himachal Pradesh reported in 2023 SCC OnLine SC 1262 wherein it is specifically observed that as under:
"Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a gazetted officer or a Magistrate, would be violative of the "reasonable, fair and just procedure" and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be a "fair", just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so requires, would place any premium on ignorance of the law. The argument loses sight of a clear distinction between CCH-33
21 Spl.C.C.499/2023 ignorance of the law and ignorance of the right to a "reasonable, fair and just procedure". xxxx
28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose -- to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or 22 acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted."
(Emphasis supplied)
47. As to what would be the consequences of a recovery made in violation of Section 50, it was observed in Baldev Singh (supra) that it would have the effect of rendering such incriminating material inadmissible in evidence and hence, cannot be relied upon to hold the accused guilty for being found to be in unlawful possession of any contraband. The Court further held that it would not impede the prosecution from relying upon recovery of any other incriminating article in any other independent proceedings. It was further held that the burden of proving that the conditions of Section 50 were complied with, would lie upon the prosecution to establish. The relevant observations are being reproduced hereunder:-
CCH-33 23 Spl.C.C.499/2023 "32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched.
Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered 24 during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible -- it cannot be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.
xxxx CCH-33 25 Spl.C.C.499/2023
45. ... Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused."
21. Further, it is made clear that what the officer concerned is required to do is to convey about the choice the accused has. The accused has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form the use of the word 'right' at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is 26 not by the grace of the officer, the choice has to be given, but more, by way of a right in the suspect at that stage to be given such a choice and the inevitable consequences that have to follow by progressing it.
"11. ... What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word "right" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it."
60. Section 50 of the NDPS Act only goes so far as to prescribe an obligation onto the police officer to inform the suspect of his right to have his search conducted either in the presence of a Gazetted Officer or Magistrate. Whether or not the search should be conducted in the presence of a Gazetted Officer or Magistrate ultimately depends on the exercise of such right as provided under Section 50. In the event the suspect declines this right, there is no further CCH-33 27 Spl.C.C.499/2023 obligation to have his search conducted in the presence of a Gazetted Officer or Magistrate, and in such a situation the empowered police officer can proceed to conduct the search of the person himself. To read Section 50 otherwise would render the very purpose of informing the suspect of his right a redundant exercise. We are of the view that the decision of this Court in Arif Khan (supra) cannot be said to be an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms; it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate.
The Apex Court, in Para No. 64 of its Judgment, summarized the requirements envisaged under Section 50 of NDPS Act as under ;
64. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:-
(i) Section 50 provides both a right as well as an obligation.
The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of 28 this right before proceeding to search the person of the suspect.
(ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer.
(iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate.
(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.
(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50.
(vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate.
(vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS CCH-33 29 Spl.C.C.499/2023 Act, and would have no application where a search was conducted under any other statute in respect of any offence.
(viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted.
(ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted.
(x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.
However, on record, there is no evidence to show that there was personal search of accused in this matter. Infact, the empowered officer ought to have given a choice to the accused by apprising his right envisaged under Section 50 of NDPS Act. But here no such procedure is followed by the empowered officer.
3022. Further, in this matter, the prosecution relying much on the statement of accused recorded under Section 67 of NDPS Act. However, it is settled position of law that the voluntary statement of accused recorded under Section 67, which is incriminatory against him, is not admissible under law. In this regard, it is relevant to rely on the decision rendered in the case of Tofan Singh Vs., State of Tamil Nadu reported in AIR 2020 SC 5592. In the said decision, it is observed as under:
"155. We answer the reference by stating:
.................
158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers"
within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
CCH-33 31 Spl.C.C.499/2023 In view of the observation made by the Apex Court, the statements recorded by the customs officers under Section 67 of NDPS Act is inadmissible in evidence and the customs officers are also considered as police officers for the purpose of recording statement under Section 67 of the NDPS Act.
23. Ex.P5 is the application for disposal of seized narcotic drugs filed under Sec.52A(2) of NDPS Act. Ex.P6 is the inventory report along with the other documents obtained at the time of inventory. On perusal of Ex.P5 and P6 the investigating officer complied the provisions of Sec.52A of NDPS Act. Ex.P7 is the complaint lodged by the complainant after completion of investigation. Ex.P8 to P13 are the CT Scan reports and Ex.P14 is the discharge summary. To establish these documents the prosecution has examined PW.7 Dr.Saahara Khan. This witness has also been subjected for cross examination by learned counsel for accused. From PW.7 it has been elicited that apart from CT scan the doctor should also do Ultra sonograph to know the 32 exact foreign bodies. Further, it is also elicited from her that any eatables consumed by a person would be digested within 6-8 hours and the learned counsel for accused suggested certain suggestions denying the evidence in examination in chief. No doubt, the Ex.P8 to P13 are the documents to show that CT scan had been done to the accused. However, no mahazar was done in the hospital while seizing the egested tablets from the hospital authority and the egested tablets is the significant material object in this matter and the entire case is standing on the fact that the accused said to be ingested certain tablets and narcotic drug and came to India, that the customs officers intercepted him and after coming to know that he ingested certain narcotic drugs taken to Aster Hospital with the permission of the Court. But very strangely the officers failed to draw any mahazar during the course of seizure of those capsules from the hospital authority and no photographs are taken at the time of so called seizure proceedings. When such being the case, where is the CCH-33 33 Spl.C.C.499/2023 material to hold that the hospital authority made to egest the capsules from the body of the accused and the same are seized by them. It is also the duty of the raiding officer to take the photographs and videography during the course of seizure proceedings. At this stage it is relevant to rely on the decision rendered in Kalu Sk. @ Kuran Vs., State in CRM (NDPS) 493/2022 dated 22.6.2022. In the said decision the Hon'ble Court has observed as under:-
"This Court takes judicial notice of the fact that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph recovery. When technology is available at the lay level we see no reason why it shall not be utilized to instill fairness, impartiality and confidence in the investigative process. Videography as a modern tool of investigation has been well recognised in law. In fact, the Field Officers' Handbook issued by Narcotics Control Bureau, inter alia, directs the search team to carry video camera amongst other equipments for the purpose of search.1 In chapter 6 relating to "Recovery and Seizure"
video recording of seizure of narcotics has been mandated as under:-
34"Video:- A lot of times the witnesses and suspect allege foul play by the search team during the trial proceedings See Chapter 3- Operation: Preparation, co-ordination and planning alleging that they were not present at the time of recovery. To avoid such a situation, all recovery and concealment methods should be videographed simultaneously if possible, recording the presence of the owner/occupant of the premises and the witnesses. This acts as a deterrent later during trial proceedings."
Unfortunately, even in cases conducted by NCB, such directives are mostly observed in the breach. It may also be apposite to note use of videography in investigation was examined by a Committee constituted by the Ministry of Home Affairs in 2017. The Committee observed videography of crime scene as "desirable and acceptable best practice". The Committee issued various directives for the purpose of preparation, capacity building and implementation of such procedure on a mandatory basis."
when there is specific observation by the Hon'ble Apex Court that during the course of seizure proceedings photographs had to be taken and videograph had to be recorded, no such procedure followed by the officers for the reason best known to them. Further at least the officers CCH-33 35 Spl.C.C.499/2023 would have produced CCTV footage which was recorded during the course of seizure the material object.
24. Therefore, the entire process said to be followed by the officers cannot be accepted. This Court has also gone through the written arguments submitted by learned counsel for accused. In the written arguments it is submitted that the witnesses deposed before the court are all official witnesses and they have supported the prosecution case and during cross-examination primafacie it is established that there were procedural irregularities on the part of the witnesses. Henceforth, the evidence of witnesses cannot be considered and believed against the accused, for the following reasons:-
i. The date in the box column in the Mahazar averments, date is wrongly mentioned this only goes to show that, the Mahazar was premeditated document, without any seizure in presence of neither witness nor official.
ii. Body packing is the concealment of illicit drugs within the gastrointestinal tract or other orifices. The material of the drug packets is mostly made with latex sheath given to its waterproof nature, more sophisticated packets may use hollow 36 pellets., but here in this case no such concealment found nor mentioned, in the entire prosecution case. It is further submitted that, in the entire prosecution case, no surveillance footage of the accused arrival from the Airport nor photography of the Cocaine of body packing is annexed in the entire prosecution case.
iii. After body packers (Accused herein) swallow several packets, they typically take medications to slow the movement of substances through the digestive tract until the packets can be retrieved. No such blood samples collected to show consumed any tablets to slow down the digestive processes. If a packet tears, or delay in retrieval, a drug overdose may occur, sometimes causing serious symptoms. Packets may block or injure the intestine. If the intestine tears, its contents may leak into the abdominal cavity and cause severe inflammation and infection-a disorder called peritonitis. Symptoms of drug overdose from a burst packet depend on the kind of drug and may include repeated seizures, high blood pressure, a very high body temperature, difficulty breathing, and coma. Here in this case, Dr, Brinda (CW-10) have not stated nor reported any symptoms of such disorder, these aspects goes to show that, accused falsely implicated.
iv. Pelvic and rectal examinations (body cavity searches) should be done to check those areas for drug packets. Plain x-rays can sometimes confirm the presence of packets in the digestive tract, but computed tomography is the most sensitive test to locate packets of drugs in the gastrointestinal tract. Here in this case, Dr.Brinda (CW-10) have not conducted such test and annexed in the report, only vague and bald report is been submitted with some X-ray report without even CCH-33 37 Spl.C.C.499/2023 following the proper procedure implicated in ICMR guidelines. One of the noninvasive, rapid, and widely available radiological examination to rule out body packer is plain abdominal X-ray, but here not performed.
v. That as per the version of the Complainant, the Accused was in possession (Cocaine) after of psychotropic substances confirmation to smuggle the same, if such be the truth, the Complainant would have recorded the action and movement of the circumstances of the facts as mentioned in the complaint averments, no such efforts were made and only false created chronicle is lined up only to suit the said case. The Accused was not at all apprehended in KIA Airport, this gives rise to clear doubt on the prosecution case and the documents persuaded rather compelled to reach the conclusion.
vi. The Accused further submits that, as per the prosecution contents, that in order to prevent drug seepage, the smugglers use modus operandi called "Body Packing" as derogatively referred as "Mules" or "Drug Mules", when such modus operand is used to prevent seepage, usually a person who is chosen be the Youngster not above 30 years adult be selected for such Body Packing", the reason is a person suffer continuously symptoms like, Shaking Hands, profuse perspiration (Sweating, Bleeding or Vomit in large amounts) and general wear the Ill fit clothing. Here in the aforesaid case, no such symptoms are mentioned nor noted in the medical report. Theses aspects give rise to clear doubts on raid and seizure.
vii. The Accused further submits that, at once the suspect is detected with such modus operandi of 38 smuggling who have concealed in abdomen at that point of time, immediately "abdominal Radiograph", showing ancillary imaging, is performed and report shall be annexed along with the prosecution case, here in the foresaid case no such efforts are seen hence, on prima facie no such seizure would have happened only imaginary chronicle is created for sake of logistic and punishment purpose.
Viii. The Accused further submitted that, the seized Cocaine is commercial quantity and as per the Guideline of Standard Instruction 1/88 the Complainant have not complied the test memo when the offending drug is seized from possession and shall also furnish the qualitative and quantitative test report within stipulated period as per the guideline such being the case it gives clear doubt on prosecution. The Accused is falsely implicated in the above case at the instance of the person who is inimically disposed towards above named Accused No.1.
The reasons assigned by the counsel for accused appears to be true because there is no convincing arguments on behalf of the prosecution. The material placed before the Court also not sufficient to hold that the accused has committed an offence punishable U/s.21(c), 23(c) & 28 of NDPS Act.
Accordingly for want of specific evidence, for want of compliance of statutory provisions under Sec.42(1) & 42(2) CCH-33 39 Spl.C.C.499/2023 for proper compliance of Sec.50 of NDPS Act the case of the prosecution shall fail. Accordingly, the accused is entitled to be acquitted for the offences U/Sec.21(c), 23(c) & 28 of NDPS Act. Accordingly, I answer Point Nos.1 and 2 in the Negative.
25. Point No.3: In the result, following:
::ORDER::
Acting under Section 235(1) of Cr.P.C.
accused - Mr. Baah Ampadu Kwadwo is acquitted for the offences punishable under Sections 21(c), 23(c) & 28 of NDPS Act.
Accused shall be set at liberty if he is not required in any other case subject to the compliance of Sec.437A of Cr.P.C., within a week from the date of this order.
M.O.1 & 2 contraband is ordered to be returned to complainant for producing before the Drug Disposal committee for disposal after the expiry of appeal period.
Issue directions to FRRO to deport the accused from India after the expiry of appeal 40 period, if he is not required in any other legal proceedings.
[Dictated to the Stenographer, directly on the computer, typed by her, corrected, signed and then pronounced by me in Open Court on this the 1st day of December 2025) (LATHA) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Sri Avinash
P.W.2 : Sri Ramesh
P.W.3 : Sri Abhishek
P.W.4 : Deepak kumar
P.W.5 : Dr.Brinda
P.W.6 : Sri. Vinay Singh Sikarwar
P.W.7 : Dr.Saarah Khan
(b) Defence :
- NIL -
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Mahazar
CCH-33
41 Spl.C.C.499/2023
Ex.P.2 : Mahazar
Ex.P.3 : Notice
Ex.P.4 : Voluntary statement
Ex.P.5 : Requisition
Ex.P.6 : Inventory report
Ex.P.7 : Complaint
Ex.P.8 : CT scan
Ex.P.9 : CT scan
Ex.P.10 : CT scan
Ex.P.11 : CT scan report
Ex.P.12 : CT scan report
Ex.P.13 : CT scan report
Ex.P.14 : Discharge summary
(b) Defence:
Nil
3.List of Material Objects admitted in evidence:
M.O.1 : Sample contraband
M.O.2 : Sample contraband
(LATHA)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*