Shadrach Nwogbo vs Customs

A bare reading of Section 103 (8) of Customs Act makes it clear that if the accused voluntarily admits that she has secreted some contraband inside her body and further voluntarily submits herself for necessary action to bring out those goods, then there is no requirement to produce the accused before the Magistrate for obtaining necessary permission.

Since the accused had already admitted having concealed narcotic drugs inside her body and has submitted for proper medical procedure, there was no need for the IO to seek permission of the court for conducting medical examination of the accused or further medical procedure to bring out those capsules.

Ld. Counsel for the accused has relied upon the consent of accused as mentioned in the notice under section 103 Customs Act and stated that the accused had merely submitted herself for X-ray of her body to check presence of narcotic substance but had not admitted having concealed any narcotic nor agreed for her admission in the hospital. It is a matter of record that the accused had already ejected 28 capsules at the Airport and hence, she could not have said that she had not concealed anything inside her body. Mere fact that that admission of the accused having concealed more capsules is not recorded in her own handwriting would not be sufficient to conclude that she never gave any such consent. Moreover, seizing IO Mathungam T Shimray and the punch witnesses are yet to be examined, who would be the best witnesses to depose, whether and when did the accused gave her consent regarding her admission in the hospital.

2.

The petitioner submits that the case of the petitioner is squarely covered by the dicta laid by this Court in Kitoko Ngiembo Alain v. Customs, 2026:DHC:1338. In particular, reliance is placed on paragraph 21 thereof, which reads as under:

"21.

Herein, admittedly, 19 capsules had been recovered immediately after the interception, when the applicant was taken to the toilet of IGI Airport itself. The contraband contained in 19 capsules, suspected to be cocaine, was seized, and thus offence stood revealed, then and there. In such a situation, the applicant should have been arrested immediately and produced before the Court, even if further recovery was to be affected. Thereafter, Customs, as per order of the Court, could have taken him to hospital for further easing out of capsules. In case, delay in hospitalization had any potential of resulting in health-hazard for the applicant, remand could have taken at the hospital also, by making appropriate request to the Court to come to the hospital for said purpose. Thus, applicant was, apparently, detained without any authorization, particularly when part-recovery had already taken place at Airport and offence stood revealed. Respondent cannot be absolved merely on the pretext that formal arrest was later. Thus, palpably, the applicant remained in illegal custody of Customs from the date of interception till 25.02.2022."

3.

The petitioner also relies upon the judgment of the Coordinate Bench of this Court in Habiob Bedru Omer v. Customs, 2025:DHC:4870. In particular, reliance is placed on paragraph 27 and 28 thereof, which read as under:

"27.

In the present case, admittedly, the documents of the respondent shows that there was specific intelligence/prior information with regard to the arrival of the present applicant with the contraband. It is, however, the case of the respondent in the complaint filed before the learned Special Court that the applicant was intercepted on the basis of suspicion/profiling. The sequence of events and record would reflect that from the very interception, the respondent had reasons to believe that the applicant was carrying the contraband recovered. In these circumstances, it was incumbent upon the concerned Officer to comply with the provisions of the NDPS Act. Admittedly, there has been no such compliance and the respondent proceeded to detain the applicant without complying with the aforesaid procedure. The respondent was bound to comply with the aforesaid provisions from the time the applicant was intercepted at the IGI Airport. In any case, when the first set of capsules were seized by panchnama dated 21.05.2023, the respondent was bound to act in accordance with the provisions of the NDPS Act. It is pertinent to note that the report under Section 57 of the NDPS Act was sent only on 26.05.2023.

28.

The applicant was in the continuous custody of the respondent from 21.05.2023 till 26.05.2023 without any authorization. "Handing Over" and "Taking Over" memos annexed with the complaint leaves no manner of doubt that the custody of the applicant was being transferred from one Officer to the other on the basis of the rotational duties. Thus, in the opinion of this Court, such custody without any authority and without producing him before the concerned Magistrate or Special Court within 24 hours in accordance with law is completely illegal. Even if the applicant was under medication for the procedure being carried out, the same cannot be a ground to keep him in custody. Magistrates exercising power of remand or otherwise in respect of persons in hospital is not unheard of and well recognized procedure in law."

“21.

Herein, admittedly, 19 capsules had been recovered immediately after the interception, when the applicant was taken to the toilet of IGI Airport itself. The contraband contained in 19 capsules, suspected to be cocaine, was seized, and thus offence stood revealed, then and there. In such a situation, the applicant should have been arrested immediately and produced before the Court, even if further recovery was to be affected. Thereafter, Customs, as per order of the Court, could have taken him to hospital for further easing out of capsules. In case, delay in hospitalization had any potential of resulting in health-hazard for the applicant, remand could have taken at the hospital also, by making appropriate request to the Court to come to the hospital for said purpose. Thus, applicant was, apparently, detained without any authorization, particularly when part-recovery had already taken place at Airport and offence stood revealed. Respondent cannot be absolved merely on the pretext that formal arrest was later. Thus, palpably, the applicant remained in illegal custody of Customs from the date of interception till 25.02.2022.”

“58.

…… The key expression appearing in clause (2) of Article 22 is ‘arrested and detained in custody’. What is the meaning of this expression? Does it mean that the two crucial words appearing in this expression, ‘arrest’ and ‘detain’, should be assigned separate meanings or they mean one and the same thing. It is important to note that the expression is conjunctive and not disjunctive. Had it been disjunctive, two separate meanings could have been assigned to the two words. But the expression being joint and conjunctive, the two words appearing therein would mean one and the same thing. This is because the Constitution does not recognize any detention dehors arrest. Thus, the prescription of 24 hours time period would commence the moment a person is detained by the arresting authority suspecting him to have committed an offence, when his liberty is effectively curtailed. To that extent, the words appearing in clause (2) of Article 22 i.e. ‘arrested’ and ‘detained’ are synonymous. Any attempt to draw an artificial distinction between ‘arrest’ and ‘detention’ would dilute or negate the fundamental protection guaranteed by the Constitution under clause (2) of Article 22. Such an endeavour should be avoided. We must adopt that interpretation which enhances and furthers the constitutional objective.”

“43.

That apart, as we have indicated in the cases of AryamanPattnayak and Kannan, here also the focus and thrust of the learned Judge in trying to distinguish between detention and arrest is not only misplaced but unwarranted as well. As already noted supra, compliance with the procedural formalities of the NDPS Act and the Rules of 2022 does not in any manner prevent the arresting authority from producing the detainee before the magistrate within the constitutionally prescribed time limit of 24 hours. The only exception the Constitution itself provides is the time necessary for the journey from the place of arrest to the court of the magistrate. Article 22(2) does not sanction exclusion of the time taken for enquiry and investigation before the arresting authority could effect arrest of the detainee. This is beyond the mandate of Article 22(2) of the Constitution. Article 22(2) does not sanction creation of any buffer zone where the liberty of an individual is curtailed for investigating purposes but not formally shown as arrested. Creation or contemplation of such buffer zone is unconstitutional. There cannot be any suspension or keeping in abeyance of the constitutional safeguards provided under clause (2) of Article 22 save and except what is provided thereunder. Therefore, the declaration that the period of 24 hours for the purposes of Article 22(2) commences from the completion of such search and seizure and only from the time of arrest recorded by the arresting authority is not only unsustainable in law but is entirely unconstitutional. At the cost of repetition, we assert that whether it is Section 67 of the NDPS Act or Rule 3 of the Rules of 2022, there is no statutory injunction preventing the detaining authority from producing the detainee before the magistrate within 24 hours of such detention. Therefore, the view taken by the learned Judge that the 24 hours period commences upon only formal arrest and not during antecedent detention necessitated by statutory procedure of seizure and inventory is contrary to the constitutional mandate of clause (2) of Article 22 read with Section 58 BNSS (Section 57 CrPC) and does not lay down the correct law on this point. XXX XXX XXX

69.

In the circumstances, we would like to summarize our conclusions as under:

(iii)

while computing the 24 hours deadline, no other time period is permitted to be excluded therefrom except the time necessary for the journey from the place of arrest to the court of the magistrate;”