The Bombay High Court has acquitted a South African woman of the charges of possessing narcotic substance after observing that the Air Intelligence Unit (AIU) failed to follow procedure of searching an accused in the presence of a gazetted officer or a magistrate.
The High Court, while acquitting 24-year-old South African national Thulile Goodness Dhalmini, observed that the AIU had failed to follow the procedure while checking her baggage as prescribed in the Narcotic Drugs and Psychotropic Substance (NDPS) Act.
Thulile was intercepted by AIU on December 30, 2009 at the city’s international airport and after search, was found carrying 1,683 grams of heroin in a false bottom of her bag.
During questioning, Thulile said she had arrived at Hyderabad from Johannesburg on December 16, 2009 on a multiple entry Indian visa. The same day she flew to Delhi where she befriended one Deepak. She shopped for clothes in Delhi and Deepak allegedly offered to buy her a suitcase. It was this suitcase which contained the heroin.
Thulile’s lawyer Ayaz Khan argued that the accused was not aware that there was a false bottom in the bag which contained the drugs.
The special NDPS court had in October 2012 convicted Thulile and sentenced her to 15 years’ rigorous imprisonment and imposed a fine of Rs one lakh.
Khan argued before the High Court that the accused person has a right under section 50 of the NDPS Act to be searched only before a gazetted officer or a magistrate. The officers have to inform the accused of this right and then carry out the search. This was not done in Thulile’s case.
Accepting this, the High Court noted that informing an accused of his or her right is “not an empty formality”.
“Such a requirement of law prescribed under section 50 cannot be dealt with lightly by the courts dealing with the trial of such offences. It is well settled that the offence committed under NDPS Act is a grave one, hence, procedural safeguards provided therein have to be strictly complied with,” the court noted.
While setting aside Thulile’s conviction and sentence, the court recently held that the conviction was vitiated on account of non-compliance of section 50 of the NDPS Act.