Proforma typed Customs Notice u/s 102 should allow Choice of Mode of Personal Search: Delhi HC while Denying Bail to Smuggling-Accused [Read Order]

The Delhi High Court recently issued advisory to the Customs Department to alter their proforma notices under Section 102 of the Customs Act, 1962 to provide choice to an apprehended person to opt whether they would like to be searched before a Gazetted Officer/Magistrate or has no objection to being searched by the officer present.

The advisory was rendered by the Delhi High Court while hearing a Bail Application filed by Pauline Nalwoga, an Ugandan National who had been apprehended at the Indira Gandhi International Airport, New Delhi for suspicion of carrying contraband on 11.01.2022. The prosecution contended that the Applicant had been apprised of her options regarding personal search, to which she assented to being searched by any lady Customs Officer.

Upon search of her bags, 107 capsules of off-white coloured substance wrapped in transparent adhesive tape was found - the capsules were found to contain heroin with a total weight of 1061 grams [commercial quantity], valued at ₹7.43 Crores and were seized as per Section 43(a) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), read with Section 110 of the NDPS Act alleging violation under Section 8 and 23 of the NDPS Act. The Applicant was arrested and kept in judicial custody ever since.

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The Applicant, represented by J.S. Kushwaha and Tanya Kushwaha raised arguments citing improper methodology adopted by the Customs Officers while sampling the seized contraband; Delay in filing Section 52A Application, NDPS Act and that defective Notices had been issued under Section 102 of the Customs Act, 1962 and Section 50 of the NDPS Act.

The Single-Judge Bench of the Delhi High Court presided over by Justice Anish Dayal, at the outset, observed that the Applicant’s objections regarding defective Notice under Section 102 of the Customs Act, 1962 and Section 50 of the NDPS Act would not be relevant as the same only pertains to personal search of an apprehended person whereas nothing was revealed in the personal search of the Accused.

However, Justice Anish Dayal cautioned that the practice of providing the accused with a pre-typed no objection notice solely for attestation of their signature for having “received” the notice may not be totally correct. The Bench stated Section 50 of the NDPS Act requires options to be given to the person being searched.

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The Delhi High Court, while dismissing the Bail Application for not having crossed the threshold of Section 37 of the NDPS Act, advised that a proforma typed notice should ideally have both options - “first that the person requires the personal search to be done before a Gazetted Officer/Magistrate; and second that the person to be searched has no objection to being searched by an officer present (lady officer in case the person to be searched is female)” in consonance with the Supreme Court decision in Ranjan Kumar Chadha vs State of Himachal Pradesh (2011).

To Read the full text of the Order CLICK HERE

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