MR.JUSTICE M.NIRMAL KUMAR Crl.A.No.901 of 2022 and Crl.M.P.No.12947 of 2022 Princess Ntombifuthi Msomi … Appellant Vs. The Intelligence Officer, Narcotics Control Bureau,

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.04.2025
PRONOUNCED ON : 29.08.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.901 of 2022 and Crl.M.P.No.12947 of 2022
Princess Ntombifuthi Msomi … Appellant
Vs.
The Intelligence Officer,
Narcotics Control Bureau,
Chennai Zonal Unit,
Chennai – 600 077. … Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. to call for the entire records in connection with C.C.No.66 of 2017 by the learned Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai in judgment dated 17.02.2020 and set aside the conviction and sentence imposed against the appellant by the learned Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai in judgment dated 17.02.2020 in C.C.No.66 of 2017.
For Appellant : Mr.M.Mohamed Saifullah
Panel Counsel –
High Court Legal Services Authority
For Respondent : Mr.N.P.Kumar
Special Public Prosecutor for NCB Cases
JUDGMENT
This Criminal Appeal has been filed to set aside the impugned order in C.C.No.66 of 2017 dated 17.02.2020 on the file of the learned Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai.
2.The appellant/accused in C.C.No.66 of 2017 was convicted by the Trial Court by judgment dated 17.02.2020 and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in default, to undergo one year rigorous imprisonment for the offence under Section 8(c) r/w. 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act] and to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in default, to undergo one year rigorous imprisonment for the offence under Section 8(c) r/w. 23(c) of the NDPS Act. Aggrieved against the same, the present appeal is filed. The appeal is prosecuted by a legal aid counsel.
3.The gist of the case is that the respondent received information on
20.01.2017 at 17.00 hours that a South African National, holding Passport No.A04932362 is trafficking 800 grams of Cocaine from Brazil to Chennai via Abu Dhabi in Ethiad Flight No.EY268 P.W.1/Intelligence Officer recorded the information and informed his Superior, obtained permission, thereafter P.W.1 along with his team reached Anna International Airport,
Chennai at about 02.00 hours on 21.01.2017, informed the Ethiad Airlines Officials and requested them to be a witness. At about 4.10 hours, P.W.1 identified the appellant while she was crossing the arrival hall of Customs examination area. P.W.1/Intelligence Officer introduced himself to the appellant by showing his identity card and enquired her whether she is carrying any narcotic drugs. The appellant admitted that she swallowed around 81 capsules of narcotic drugs and she was carrying it all the way from Brazil to Chennai and she was informed about Section 50 of NDPS Act, that she has the right to be searched before the Gazetted Officer or a
Magistrate, the appellant declined to exercise her right and informed NCB Officer present there can search. In the meanwhile, the appellant informed that she is feeling uncomfortable since she swallowed Cocaine capsules and requested medical treatment. P.W.1 along with a lady Officer took the appellant to Government Hospital, Royapettah. A mahazar was prepared in the Airport at 5.10 hours in the presence of two independent witness of Ethiad Airlines. Thereafter, P.W.1 submitted a request to the Duty Doctor for medical examination, the appellant was admitted, xray of chest and abdomen taken, it confirmed some foreign body present in her body. P.W.4/Senior Surgeon along with a team of Doctors treated the appellant.
On 21.01.2017, the appellant ejected around 58 capsules and produced one big capsule pervaginally. Thereafter, the appellant ejected 20 capsules on
24.01.2017, 2 capsules on 25.01.2017 and 1 capsule on 26.01.2017, in total 81 capsules ejected and one big capsule produced by the appellant.
4.P.W.1/Intelligence Officer called P.W.3/Banumathy, Head Constable and one Bharathidasan, Head Constable attached to Outpost Police Station of Government Hospital, Royapettah to be witnesses along with Divyalakshmi, Surveillance Assistant, in their presence, 82 capsules opened one by one, on opening the capsules white powder found, using the test kit the powder was tested and found it to be Cocaine. Thereafter, all the powders were put together, homogenized, which weighed 1.075 Kgs, two samples of 5 grams each taken separately and marked as S1 and S2. The balance of 1.065 kgs packed in M.O.I and the packing materials used to conceal 82 capsules were put in a green cloth lined envelop is M.O.IV affixing NCB seal No.11, all neatly packed. Thereafter, summon under Section 67 NDPS Act served to the appellant and she appeared before the respondent Office at about 20.30 hours. Since she was under pain due to the IV needle injection and medical treatment, she could not write and requested the statement to be recorded by P.W.1 in the laptop and her statement recorded which is marked as Ex.P11. She voluntarily admitted that at the instance of one Victor, who is in Brazil, she agreed to be a carrier and the appellant concealed and smuggled narcotic drugs and she was promised 5000 USD. Since she is a widow having two children and was in poverty, she accepted to be a carrier. The appellant was informed that on reaching Chennai, she was to check in at Hotel Lemontree, Guindy and thereafter, a person would come and collect the concealed capsules. She admitted committing the offence and handed over her South African Passport/Ex.P12, Visa/Ex.P15, Boarding Pass/Ex.P16, two mobile phones/M.O.V, 300 US dollars and 100 Brazilinan Reals/Ex.P10, all the items except currencies were collected, put in a cover. The suit case and hand bag returned to the appellant and she was arrested on 27.01.2017 at about 22.30 hours. The appellant’s arrest was informed to her sister and the appellant spoke to her brother from NCB office Telephone, both informed about the arrest of the appellant. Thereafter, the appellant along with the seized articles produced before the learned Judicial Magistrate, Ambattur on 28.01.2017 at 13.10 hours. The learned Magistrate remanded the appellant, issued remand warrant directing the Jail authorities to produce the appellant before the Special Court under NDPS Act on 10.02.2017. P.W.1 submitted Section 57 report to P.W.2 on 28.01.2017. The seized drugs kept in the safe custody at NCB Godown and it was produced before the Special Court under NDPS Act on 31.01.2017 with a request to forward the samples for chemical examination. The learned Special Judge forwarded the samples to the Central Revenue Control Laboratory, New Delhi for quantitative and qualitative chemical analysis report. In the meanwhile, summons served to Banumathy/P.W.3, Dr.S.R.Padmanaban/P.W.4 and G.Bharathidasan, Head Constable and their statements recorded. The FRRO, Bureau of
Immigration, Ministry of Home Affairs, Government of India, Assistant Director, Intelligence Bureau, Central Foreigners Bureau, New Delhi informed about the arrest of a foreigner/appellant and travel details of appellant verified whether earlier she travelled to from Chennai between January 2014 and 2017. P.W.5/Chemical Examiner, Central Revenue Control Laboratory gave the test report confirming that the samples confirmed it to be Cocaine Hydrochloride and his report/Ex.P33. P.W.6 continued the investigation and on completion, filed a complaint before the
Special Court on 18.07.2017. During the Trial P.W.1 to P.W.6 examined, Ex.P1 to Ex.P42 marked and M.O.I to M.O.V produced. On conclusion of trial, the Trial Court convicted the appellant as stated above.
5.The contention of the learned counsel for the appellant is that the appellant being a foreign national not conversant with the language, local procedure and law, appellant was denied of her fundamental right not allowed to meet any one and not provided any legal assistance till her remand. The appellant was kept in dark and she was not aware of what was happening around her. The respondent without giving any details, kept her in confinement, she was threatened not to speak during the remand and if she defies, she would be detained in solitary confinement and she was given various threats. The appellant for the first time had come to India, not knowing what to do and she was traumatized in the new environment, unable to understand the language and she was dumb throughout. The learned Magistrate during the remand recorded that legal aid explained to the appellant but what was the legal aid, what is the right and privileges as under trial prisoner, what is her entitlement during the remand, nothing informed to her. Further, it is recorded that the appellant had means to appoint an Advocate and thereafter remanded her. He would submit that the appellant had only US Dollars and Brazilian Reals which already seized by the respondent, in such circumstances the appellant having no means to appoint an Advocate. He would further submit that in this case admittedly the appellant was intercepted and detained by P.W.1 and his team on her arrival to India on 21.01.2017 at 4.10 hours, from that time onwards, she was under the custody of the respondents who took her to Government Hospital, Royapettah where she was kept in isolation and confined from 21.01.2017 till 27.01.2017, thereafter she was taken to the respondent’s office by P.W.1 and her statement under Section 67 NDPS Act recorded as though the appellant admitted her guilt. The appellant was in custodyof the respondent from the time she arrived on 21.01.2017 till the time she was produced before the Magistrate on 28.01.2017 at 13.10 hours. During this entire period, the appellant was denied of her legal rights and her attempt to give explanation was not considered. The respondent violated all statutory provisions under Sections 42, 50, 52, 52-A and 57 of NDPS Act. He further submitted that this Court and the Apex Court time and again held that violation of statutory provisions makes the conviction not sustainable and entitles benefit of acquittal to the appellant/accused. He would further submit that from the date of her remand on 28.01.2017 till date, the appellant is confined in prison. The appellant in Ex.P11 informed that her husband expired in the year 1989, she has two children and the appellant is suffering with various diseases including hypertension, kidney ailment, Pancreatitis, tested HIV positive and for her medical expenses and family maintenance, she needs money. One Kenith, a South African national introduced one Victor to her in Sao Paulo, Brazil and thereafter she got into this entanglement. Hailing from a poor family, that to a South African national, she is unable to sustain herself and she is aged about 62 years with

various serious health ailments.
6.The learned Special Public Prosecutor for the respondent submitted that in this case, secret information received by P.W.1/Intelligence Officer on 20.01.2017 at 17.00 hours informing that the appellant trafficking about 800 grams of cocaine from Brazil to Chennai via Abu Dhabi by swallowing around 81 capsules of cocaine. On recording the information, P.W.1 submitted the same under Section 42 of NDPS Act to his Superior Officer P.W.2 , who authorized P.W.1 to take necessary action. P.W.1 along with his team and a Woman officer reached Anna International Airport, Chennai, informed the Duty Manager, Airport (Operations) and Guest Service Agent of Ethiad Airways Mrs.Radika Menon and Balaji Thiyagarajan about the information received and requested them to be a witness to intercept and interrogate the appellant. Thereafter P.W.1 mounted surveillance at the Customs Examination area, around 4.10 hours, the appellant identified with her Passport number and while she was crossing the Customs examination area, P.W.1 and his team enquired the appellant, whether she was carrying any narcotic drugs. The appellant admitted that she was carrying narcotic drugs from Brazil by swallowing 81 capsules of cocaine. Thereafter, the appellant was informed of her rights under Section 50 of NDPS Act to be searched before a Gazetted officer or Magistrate. The appellant declined the right and informed, NCB officer present can search her. The appellant informed that she was feeling uncomfortable since she consumed huge quantity of capsules and she requested to be immediately taken to a Hospital
to relieve her from pain. The happenings recorded by way of Mahazar/Ex.P2 and the appellant was taken to Government Hopsital, Royapettah. P.W.1 gave a requisition letter to the Duty Doctor at 06.05 hours to examine the appellant and to find out whether she was concealing any capsules containing drug in her body. Thereafter, xray and scan taken confirming presence of foreign bodies inside the stomach of the appellant. The appellant was admitted in the Hospital and during the period 21.01.2017 to 27.01.2017, she ejected around 81 capsules and produced 1 big capsule which was concealed in her private part. Thereafter, summon under Section 67 of NDPS Act served to the appellant and she appeared before the NCB Officer on 27.01.2017 at about 20.30 hours. In the meanwhile, the capsules which were recovered were cut open, white colour powder found in it was tested using a test kit and found to be cocaine. The powders were put together, homogenized, which weighed 1.075 Kgs, two samples of 5 grams each taken and the balance powder packed in one cover.
7.The learned Special Public Prosecutor further submitted that during the interrogation before the Intelligence Officer, the appellant voluntarily disclosed her involvement in this case that she acted as a carrier and used her body as a container to smuggle the cocaine which were concealed as capsules. Further, the appellant produced her passport, travel documents, mobile phone, US Dollars and Brazilian Reals which were seized under mahazar. Thereafter, the appellant along with the seized articles were produced before the learned Judicial Magistrate, Ambattur, who remanded the appellant on 28.01.2017 at about 13.10 hours with a direction to the Prison authorities to produce the appellant before the Special Court on 10.02.2017. The seized articles were handed over to P.W.1 for safe custody. P.W.1 after obtaining permission from P.W.2 deposited the seized articles in the safe vault godown and P.W.1 submitted 57 report to P.W.2 on
28.01.2017. On 31.01.2017 the seized drugs and other articles produced before the Special Court and sample drugs was forwarded for chemical analysis to the Central Revenue Control Laboratory, New Delhi, who received the same and submitted a report that the sample is in the form of white powder, on the basis of chemical, spectroscopic and chromatographic examinations it concluded that the sample under reference answers positive for Cocaine Hydrochloride. P.W.1 informed the arrest of the appellant to her sister and the appellant spoke to her sister over phone. The FRRO, Bureau of Immigration was requested to furnish the details of departure and arrival of the appellant for the last three years and also information sought from Intelligence Bureau, Central Foreigners Bureau and it was confirmed that the appellant prior to January 2014 till 2017 had not travelled to India. In this case, P.W.1/Intelligence Officer, P.W.2/Superior Officer who was informed about the investigation and regular reports filed, P.W.3/Head Constable posted in the Outpost Police Station, Government Hospital,
Royapettah along with Bharathidasan and NCB Woman Official, Divyalakshmi are the witnesses for collection, sampling and seizure of narcotic drugs. P.W.4/Dr.Padmanabhan, Government Hospital, Royapettah confirms the treatment given to the appellant from 21.01.2017 to
27.01.2017 and the various dates the appellant ejected the capsules, 27.01.2017 x-ray and scan taken, which confirmed no capsule or any foreign materials present inside the appellant body and she was discharged.
P.W.5 is the Chemical Examiner who confirms that M.O.1 as Cocaine. P.W.6 is the subsequent Intelligence Officer who completed the
investigation and filed the complaint in this case.
8.Considering the submissions made and on perusal of the materials, it is seen that the primary contention of the appellant is that the appellant is
a widow, a foreigner travelling to India for the first time, P.W.1/Investigating Officer, NCB, receives information, records the same, informs his superior P.W.2 and along with a team went to Airport on 21.01.2017 at about 4.10 hours while the appellant was passing after immigration clearance to Customs examination area, P.W.1 identified, intercepted and enquired the appellant. It is seen that appellant enquired in the presence of Mrs.Radika Menon, Duty Manager, Airport (Operations) and Mr.Balaji Thiyagarajan, Guest Service Agent of Ethiad Airways,
Ex.P2/mahazar dated 21.01.2017, prepared recording the happenings on
21.01.2017 between 3.15 hours and 5.10 hours. The appellant admitted she swallowed Cocaine concealed in 80 capsules carrying it from Brazil. Further it is recorded that Section 50 of NDPS and her right to be searched before the Gazetted Officer or Magistrate was explained to the appellant but she declined the same is highly artificial. In this case, admittedly the said Radika Menon and Balaji Thiagarajan, the two independent witnesses not examined. Hence following mandatory compliance becomes doubtful and Ex.P2 is a self serving document. The compliance of Section 50 of NDPS
Act is mandatory and cannot be a mere formality. The Apex Court and this Court had time and again held that Section 50 of NDPS is a right to the accused in NDPS case and it cannot be whittled down just like that. In this case, no compliance of Section 50 NDPS Act specifically recorded. Added to it, Ex.P2 cannot be considered as compliance of Section 50 of NDPS Act in any manner. The medical records, Ex.P3, Ex.P4, EX.P5 and Ex.P8 are not complete. P.W.4/Doctor confirms that xray and CT scan taken right from the time of admission of the appellant on 21.01.2017 till her discharge on 27.01.2017 but no documents produced to show that foreign bodies found in the appellant’s body. In fact Ex.P3/medical examination request is specific to examine and find out whether any narcotic drugs is concealed in the body of the appellant. Ex.P5 is the diagnosis request for xray of chest and abdomen in an erected position. The complete medical records not produced. P.W.4 in his evidence produced the discharge summary/Ex.P8 for the treatment given, primarily recording the ejection of capsules on 21.01.2017, 24.01.2017, 25.01.2017 and 26.01.2017. In this case, the NCB proceeds on the ground that the appellant voluntarily produced 82 capsules in Government Hospital, Royapettah which was collected between 21.01.2017 and 26.01.2017 and these capsules were cut open, white powder found concealed in it which was tested using test kit, confirmed cocaine and thus, proceedings recorded in the presence of P.W.3, Banumathy and another Police Constable Bharathidasan and one Divyalakshmi, a NCB Woman Officer but strangely no Doctor or none from the medical side examined as witness in this case and why Police Personnel alone called as witness is not known. The statement of P.W.3/Ex.P29 given under Section 67 of NDPS Act in which it is recorded that 82 capsules produced by the appellant, all appeared similar, in which, white powder found, total weight
1.075 kgs and thereafter, NCB took further action in this regard. In Ex.P6/mahazar dated 27.01.2017 there are details for collection of 82 capsules, opening it, testing each capsule with test kit, thereafter mixing white powders collected from the capsules together, making it a homogeneous and thereafter, taking samples separately. The statement recorded is contradictory to the mahazar/Ex.P6. It is further seen that
P.W.4/Doctor state about the treatments given to the appellant from 21.01.2017 to 26.01.2017, recording the ejection of capsules from the body of the appellant. P.W.4 except for recording the number of capsules collected on each day, he does not state anything about the similarity in appearance or weight or its contents. The Doctor who treated the appellant from the date of her admission till her discharge would be the right person to confirm about the capsule and opening and about its contents. Thus in this case, the statutory procedure of taking samples in the presence of the Magistrate as per Mohanlal vs. State of Punjab reported in (2018) 17 SCC 627 and Section 52-A of the Act not followed. The Trial Court had primarily relied on the Section 67 statement taking it as an admission of the appellant.
9.In the case of Tofan Singh vs. State of Tamil Nadu reported in
2021 (4) SCC 1, the Apex Court held that Section 67 statement cannot be taken as admission and utmost it can be used as a statement under Section 27 of the Evidence act to the limited purpose for recovery of fact and articles. In this case, admittedly the information of concealment of contraband in the body of the appellant received and recorded in Ex.P1. As per Section 42(1), P.W.1 informed his Superior Officer/P.W.2 on 20.01.2017. The appellant was intercepted in the Customs area and was informed about the information received, intended search and further, as per Section 50, she was given the option of search before the Magistrate or Gazetted Officer. The same is recorded in Ex.P2 dated 21.01.2017. Admittedly no report under Section 42(2) submitted, further in this case the contraband concealed in capsules were ejected and collected as follows:
• On 21.01.2017, 58 capsules ejected and one big capsule recovered pervaginally.
• On 24.01.2017, 20 capsules ejected.
• On 25.01.2017 two small capsules ejected.
• On 26.01.2017 one small capsule ejected.
10.In total 81 capsules and one big capsule retrieved from the appellant. After confirming medically that there was no more foreign bodies in the body of the appellant, she was discharged on 27.01.2017, on the same day Section 67 notice issued, she was taken to the office of the respondent and her statement/Ex.P11 recorded. The specific information about the appellant concealment of capsules in her body is recorded in Ex.P1. Section 42 empowers the Officer to search, arrest and seize the contraband. But in this case, for the reasons best known only on 27.01.2017 the appellant was shown arrest. It is not in dispute that on 21.01.2017 at about 3.40 hours the appellant was detained by the respondent and the ejection of concealed contraband recorded from 21.01.2017 but no arrest made.
11.The arrest memo/Ex.P17 confirms that the appellant was shown arrest on 27.01.2017 at about 22.30 hours. After her arrest the appellant was permitted to speak to her brother and informed about her arrest from the office of the respondent. The arrest intimation/Ex.P18 sent to one Rose Msomi, sister of the appellant. Thereafter, the appellant was produced for remand on 28.01.2017 at 13.10 hours before the Magistrate. In view of the above, there is a clear violation of Section 52 of NDPS Act. Further, in this case nowhere reason for belief recorded. P.W.1 submitted Ex.P2/Section 50 report, Ex.P1 and Ex.P23/Section 57 report to his immediate Superior Officer/P.W.2 are well beyond 72 hours and 48 hours which is in clear violation of the dictum laid down by the Constitutional Bench in the case of Karnail Singh vs. State of Haryana reported in (2009) 8 SCC 539 followed by another Constitutional Bench in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in (2011) 1 SCC 609. The Apex Court followed the same in the case of S.K.Raju @ Abdul Haque @ Jagga vs. State of West Bengal reported in (2018) 9 SCC 708, wherein it is held “as soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not”. Thus in this case, the mandatory provisions and conditions not followed and proved. In view of the above, the conviction of the appellant is not sustainable.
12.Accordingly, the conviction and jail sentence imposed by the Trial
Court in C.C.66 of 2017 dated 17.02.2020 is set aside.
13.The Trial Court to return the appellant’s passport/Ex.P12, Visa/Ex.P15 and all other travel documents to the appellant on filing appropriate petition. Further, US dollars and Brazilinan Reals which have been seized from the appellant, converted into Indian currency and deposited as per Ex.P10 to be handed back to the appellant along with the accrued interest, if any.
14.The Jail Authorities is hereby directed to inform the FRRO, Government of India and other concerned about the release of the foreigner and thereafter to be kept in a Camp. After getting back passport along with travel permission and other travel documents, the appellant may be deported and send back to her Court.
15.In the result, the Criminal Appeal stands allowed. Consequently, connected criminal miscellaneous petition is closed.
16.This Court appreciates Mr.M.Mohamed Saifullah nominated by
the High Court Legal Services Authority for the appellant by thorough preparation and effectively defending the appellant in this case. The High Court Legal Services Authority is directed to pay remuneration to the counsel for the appellant.
29.08.2025
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No cse
Note: Issue order copy on 29.08.2025 
To
1.The Special Judge,
II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai.
2.The Intelligence Officer,
Narcotics Control Bureau, Chennai Zonal Unit, Chennai – 600 077.
3.The Superintendent,
Special Prison for Women, Puzhal-III, Central Prison, Thiruvallur – 600 066.
4.The Special Public Prosecutor for NCB Cases, High Court, Madras.
M.NIRMAL KUMAR, J.
cse
Pre-delivery judgment in
Crl.A.No.901 of 2022
29.08.2025