[Cites 19, Cited by 0]
Bombay High Court
Amoin Marie Kouame vs Intelligence Officer And Anr on 6 April, 2026
2026:BHC-AS:16564
vai BA-5292-2024 (B).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VASANT CRIMINAL APPELLATE JURISDICTION
ANANDRAO
IDHOL BAIL APPLICATION NO. 5292 OF 2024
Digitally signed by
VASANT
ANANDRAO
IDHOL Ms. Amoin Marie Kouame ...Applicant
Date: 2026.04.07
19:58:28 +0530
Versus
Intelligence Officer & Anr. ...Respondents
***
Mr.Advait Tamhankar i/b Mr.Shekhar Bhandary for the Applicant.
Ms.Sangeeta Yadav for Respondent No.1 -DRI.
Mr.S.K. Gajare, APP for the Respondent - State.
***
CORAM : R. M. JOSHI, J
RESERVED ON : 30TH MARCH, 2026
PRONOUNCED ON : 6TH APRIL, 2026
PC:
1. Applicant seeks bail in connection with Crime No.
DRI/MZU/C/INT-157/2023 for the offences punishable under Sections 8(C),
r/w Sections 21(c), 23(c), 28, 29, 30, 35 & 54 of Narcotic Drugs and
Psychotropic Substances Act, 1985.
2. It is a case of the prosecution that on 20.12.2023, intelligence
was received by DRI that one foreign national Ms. Amoin will be arriving at
CSMI Air Port at around 2.35 am from Ethiopia. The intelligence indicated
that she might be carrying Narcotic Substance. A note therefore was put up
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to the Senior Intelligence Officer, C Cell, DRI. A direction was issued in this
regard to take appropriate action. Panchas were called. A lady was
intercepted by the officer. Her passport and boarding pass were obtained.
She was having one gray colour handbag and one black colour trolley bag.
She was questioned about carrying Narcotic Substance, if any. She declined.
She was apprised of her right of being searched before Gazetted Officer or a
Magistrate. She opted for a search before Gazetted Officer. Hence, a lady
Gazetted Officer i.e. Air Custom Superintendent was called. The said
Superintendent took personal search of the applicant in presence of lady
panchas. Nothing incriminating was found in her personal search.
Thereafter, her handbag was searched and two packets were found
containing 198 gms white substance which is purported Cocaine. A total
quantity of 1273 gms was found in the said bag. Investigation was carried
out and on completion thereof, charge-sheet is filed.
3. Applicant contends that this is a case of false implication. It is
claimed that her search was taken in presence of male officers being
members of the raiding team and hence there is violation of Section 50(4)
of the Act. There are other grounds for seeking bail such as mixing of the
contents of two different packets in one, which is contrary to the rules. It is
also claimed that the applicant had no knowledge of any contraband in the
bag. Finally, the bail is sought also on the ground of long incarceration as
the applicant is arrested on 21.12.2023.
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4. Learned Counsel for the applicant seeks bail of the applicant
solely on the ground that there is a contravention of provisions of Section
50(4) of the Act as the applicant being lady ought not to have been searched
in presence of male. To support this submission, reference is made to the
judgment of the Division Bench of this Court in case of Veneela Tilak vs.
Shahasane and Another, 1997(2) Mh.L.J. 337. Reference is also made to the
orders passed by the Coordinate Benches of this Court.
5. Learned Special Prosecutor appearing on behalf of DRI opposed
the application. It is claimed that this is a case of seizure of commercial
quantity which is huge in nature. It is submitted that all other provisions
are duly complied including provision of Section 50(4). It is also contended
that perusal of the record does not indicate that the personal search of the
applicant was taken in presence of male person. She further argued that in
fact the search has been taken by the Gazetted Officer who is lady. It is thus
contended that there is no question of grant of bail to the applicant on this
count. To support the submissions, reliance is placed on judgment in case of
Ranjan Kumar Chadha vs. State of Himachal Pradesh, 2023INSC878 to
claim that Section 50 has no application in case of search of a bag.
6. Since the bail is sought by the Applicant solely on the ground of
non compliance of Section 50(4) of the NDPS Act, this Court without going
into any other issue it needs to be seen whether the Applicant is entitled for
bail. Applicant is a lady. She was apprehended at Chhatrapati
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Shivajimaharaj International Airport on 21.12.2023. A commercial quantity
of contraband substance was seized from her bag. After she was informed of
her right to seek search in presence of the nearest Gazetted Officer or
nearest Magistrate and she having chosen to be searched before Gazetted
Officer, a lady Gazetted Officer i.e. Air Custom Superintendent was called.
As recorded in panchnama, the search of Applicant was taken by the said
lady Gazetted Officer. There is specific mention in the panchnama about the
said search being carried out in presence of panchas who were females and
from her personal search, nothing incriminating was recovered from the
Applicant. The dispute is with regard to the validity of the search starts from
this point onwards.
7. It is contended by the learned Counsel for the Applicant that
from panchnama, it is clear that in presence of male officers i.e. Intelligence
Officer of DRI search of the handbag and trolley bag of the Applicant was
done. According to him, reference of the male officer Shri Saurabh Parle,
Intelligence Officer, DRI, Mumbai Unit (MZU) decided to examine bag
shows that it was done in presence of a male. In order to support submission
that on that count, the search gets vitiated reference is made to the
judgment of Division Bench of this Court in case of Veneela Tilak (supra)
and order passed by Coordinate Bench of this Court in case of Miss. Heena
Bharat Shah vs. State of Maharashtra, Bail Application No. 1051/2016,
Zalwango Moureen @ Anita vs. The State of Maharashtra, Bail Application
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No. 260 of 2024 and Husainbi Faqeer Shaikh vs. Union of India & Anr, Bail
Application No. 2835/2023.
8. In case of Veneela Tilak (supra), Division Bench has made
following observations:
15. Now if a woman accused has to be searched, merely
calling a female officer to search her will not fulfill the
legislative intent. The legislative Intent appears to be to
protect the lady accused's modesty while conducting her
search. The search has to be conducted by having strict
regard for decency. Therefore, the officers will necessarily
have to secure the presence of lady panchas. If the search is
carried out in the presence of male panchas, the very
purpose of Sub-section (4) of Section 50 of the N.D.P.S. Act
and such similar provisions contained in other statutes
would be frustrated. What is sought to be achieved by Sub-
section (4) of Section 50 of the N.D.P.S. Act, the relevant
provisions of Criminal Procedure Code quoted herein above
and similar provisions of the Customs Act and the F.E.R.A.
would be lost if the investigating agency does not carry out
the search by a female in the presence of female panchas.
9. It is thus clear that the Division Bench has held that the search
of the lady must be carried out in presence of female panchas. Relying upon
the judgment of Full Bench in Criminal Bail Application No. 531/1993, it is
held that lady accused would also mean the search of articles on her person
or body or search of articles in her immediate possession such as bag or
other baggage carried out by her or in her physical possession.
10. The Coordinate Bench of this Court in case of Heena Bharat
Shah (supra) has held that in that case the Applicant a lady was searched
within a gaze of males and not in seclusion and in absence of male person.
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Similar is the observation in case of Zalwango Moureen @ Anita (supra). In
case of Hussainbi Faqeer Shaikh (supra), the search was done in presence of
male panchas and hence, though search was done by the lady police officer,
since it was done in presence of male panchas, it was held to be violating
mandatory provisions of law. In case of Zalwango (supra) the lady accused
therein was searched by males. These orders, therefore, shows that personal
search of lady was alone either by male panchas, male officer or within gaze
of a male.
11. Needles to say that a lady was searched in presence of male or
not would have to be decided on the basis of facts of each case. In this
regard, it would be relevant to take note of the panchnama of search and
seizure.
"Before conducting the personal search, the officer in the
presence of Mrs. Rupam Kumari, Air Customs
Superintendent and we, the panchas, offered for personal
search to Amoin Marie Kouame, which was politely
declined by her. Thereafter Smt. Asha Panicker, in our
presence and in the presence of Mrs. Rupam Kumari, Air
Customs Superintendent, took the personal search of
Amoin Marie Kouame, nothing incriminating was recovered
from her personal search."
It is, therefore, clear from the recording of panchnama that the
search of person of applicant taken by the lady Gazetted Officer and in
presence of female panchas and that neither it was done within gaze of a
male.
The panchnama further records that:
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"Thereafter, in presence of us, the Panchas, Mrs. Rupam
Kumari and the passenger Amoin Marie Kouame, the
officers decided to examine the grey coloured handbag and
the black colored trolley bag having "Prosperity" marking
on it which Amoin Marie Kouame was carrying with her,
when she arrived in Mumbai from Addis Ababa vide
Ethiopian Airlines flight ET640. The officers first took up
the black coloped trolley bag having "Prosperity marking
on it for the detailed examination Contents of this bag was
emptied in our presence and in the presence of Mrs. Rupam
Kumari and the passenger Amoin Marie Kouame. Upon
detailed examination nothing incriminating was found
from the black colored trolley bag having "Prosperity"
marking on it."
12. Panchnama, therefore, reflects as to what exactly has transpired
in presence of panch witnesses and from the same, it cannot be held that
personal search of the Applicant being taken by or in presence of any male.
In orders of Coordinate Bench of this Court cited (supra) search of the
female was taken either by the male panchas or in presence of male. Here in
this case, there is nothing on record to indicate that personal search of the
Applicant was taken in presence or within gaze of male.
13. Now question arises with regard to the observations of the
Division Bench relying upon the Full Bench in Criminal Appeal No.
531/1993 that to search any person used in Section 51 of the NDPS Act a
search of the lady accused would also mean search of articles on her person
or body or search of articles in her immediate possession such as bag or
other luggage carried by her. Pertinently, in Full Bench judgment no notice
under Section 50 was given before personal search. As far as position of law,
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which is now settled in view of the judgment of Hon'ble Supreme Court in
case of Ranjan Kumar Chadha (supra), Section 50 has no application in
respect of search of any bag or any article on the person except for his/her
apparels. It is pertinent to note that this observation is made after
considering the fact that personal search as well as search of bag of accused
was done and from bag charas was recovered. It is ultimately held in
paragraph 12 as under:
125. For all the foregoing reasons, we are of the view
that the High Court was justified in holding the appellant
guilty of the offence under the NDPS Act and at the same
time, the High Court was also correct in saying that Section
50 of the NDPS Act was not required to be complied with as
the recovery was from the bag.
In view of the position of law being settled now with regard to
the applicability of Section 50, it is not possible to accept that search of the
handbag and trolley bag of the Applicant, even if accepted to be done in
presence of Intelligence Officer, who is male, cannot be considered as
violation of Section 50 of the Act.
14. In so far as Section 50(5) of the Act is concerned, search is
required to be proceeded as provided under Section 100 of CrPC. Provision
of Section 100 of CrPC indicates that the search of female is required by
another female in order to maintain decency of the female while conducting
search of a female, her body may come into contact or may need to be
touched and, therefore, it should be done by a female. In case of a bag,
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briefcase or container, they would ordinarily not searched along with body
of a human being. The purse or bag, if any, carried in hand or shoulder
would not be searched in that position and search of the same will require,
it being removed from hand, unless there is material to indicate otherwise.
In order to make such search, such type of baggage, body of carrier will not
come in contact of a person conducting search. Thus, it cannot be said that
the search of a woman is not conducted by maintaining her decency.
15. Once it is held that Section 50 has no application to the search
of a bag, and as question of the decency of the Applicant being not involved
in the search of hand bag as well as trolley bag, it does not become a ground
for vitiating the search.
16. Herein this case, commercial quantity of contraband has been
seized from the Applicant and as such, the rigors of Section 37 would apply.
The said provision requires proper grounds of bail, the Court to have reason
to believe that the Applicant is not guilty of the offence and is not likely to
commit the offence, if granted bail. Since the search of the bag of the
Applicant does not violate Section 50 of the Act nor it can be said to be case
wherein the Applicant's decency was breached by the act of search of the
bag, question of vitiating the seizure does not arise.
17. As a result of above discussion, application deserves to be
dismissed and the same is accordingly rejected.
(R. M. JOSHI, J.)
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