2011 (6) TMI 970 - HC - Customs

Conviction altered to NDPS Act, appellants sentenced to time served, fine imposed.

Mushtaq Ahmad and Anr. Versus State and Ors.

The court altered the conviction of the appellants to Section 20(b)(ii)(B) of the NDPS Act, sentencing them to imprisonment already undergone and a fine ... - Issues Involved:1. Compliance with Sections 41 and 42 of the NDPS Act.2. Credibility of independent witnesses in the search and seizure operation.3. Procedure followed by the Trial Court.4. Admissibility of confessional statements.5. Representative nature of the samples taken from the seized substance.6. Failure to produce the seized substance as physical evidence.7. Determination of the quantity of narcotic drugs for sentencing.Detailed Analysis:1. Compliance with Sections 41 and 42 of the NDPS Act:The appellants argued that the complainant failed to follow the mandate of Sections 41 and 42 of the Act during the recovery. The court clarified that the complainant, being an Intelligence Officer authorized by a Gazetted Officer, had the power to conduct searches and seizures at any time, including between sunset and sunrise, as per Section 41(2) of the Act. Additionally, the search was conducted in a public place, thus falling under Section 43(b) of the Act, which allows unrestricted searches at any time.2. Credibility of Independent Witnesses:The appellants contended that the witnesses were not truly independent as they were employees of NCB officials and their residential addresses were incorrectly stated. The court held that the absence of independent witnesses does not necessarily cast doubt on the credibility of the search and recovery, especially when the operation was conducted in the presence of a Gazetted Officer, whose testimony remained unimpeached.3. Procedure Followed by the Trial Court:The appellants argued that the Trial Court followed the wrong procedure by treating the complaint as a charge sheet under Section 173 of the CrPC. The court noted that under Section 36A(d) of the NDPS Act, a Special Court (or a Sessions Court acting as a Special Court) can take cognizance of an offence upon a complaint made by an authorized officer without the accused being committed for trial. Therefore, the procedure followed did not vitiate the trial.4. Admissibility of Confessional Statements:The appellants claimed that their confessional statements were inadmissible as they were made under duress while in custody, violating Article 20(3) of the Constitution and Section 25 of the Evidence Act. The court found that the statements were made before the appellants were formally arrested and there was no evidence of coercion. Thus, the confessional statements were admissible and could be relied upon.5. Representative Nature of the Samples:The appellants argued that the samples taken were not representative of the entire seized substance. The court acknowledged that samples were taken from only one of the multiple packets recovered from each appellant, which did not represent the entire seized quantity. This affected the determination of whether the seized substance constituted a 'commercial quantity.'6. Failure to Produce the Seized Substance as Physical Evidence:The appellants contended that the prosecution's failure to produce the seized substance in court was a significant lapse. The court held that, despite this lapse, the consistent and credible testimonies of the prosecution witnesses, along with the documented chain of custody, were sufficient to uphold the conviction.7. Determination of Quantity for Sentencing:The court discussed whether the total quantity of the seized substance or the actual content of the narcotic drug (THC) should be considered for sentencing. Referring to precedents, the court concluded that the actual content of the narcotic drug should be used to determine the quantity. In this case, the THC content in the samples indicated that the recovered substance was of 'intermediate quantity,' not 'commercial quantity.'Conclusion:The court altered the conviction of the appellants to Section 20(b)(ii)(B) of the NDPS Act, sentencing them to imprisonment already undergone and a fine of Rs. 25,000 each, with an additional six months of rigorous imprisonment in default of payment. The appeals were disposed of accordingly.