2007 (9) TMI 704 - HC - Customs

Court affirms trial legality, evidence admissibility, and customs authority in constructive possession case.

Arun Kanungo and Ors. Versus D. Pakyntein and Ors.

The court upheld the trial's procedural legality, admissibility of statements, corroboration of evidence, constructive possession, legality of seizure, ... - Issues Involved:1. Procedural legality of trial by the Special Judge.2. Admissibility of statements recorded by Custom authorities.3. Corroboration and evidentiary value of statements.4. Constructive possession and conscious possession.5. Legality of seizure and compliance with procedural requirements.6. Authority of Customs Department to conduct the inquiry.Detailed Analysis:1. Procedural Legality of Trial by the Special Judge:The appellants contended that the Special Judge erred by following the procedure prescribed for Sessions trials instead of warrant cases by Magistrates. The court clarified that Section 36C of the NDPS Act mandates that the Special Court shall be deemed a Court of Sessions, thereby justifying the procedure adopted. The court referenced the Gujarat High Court's view in *Amratlal Devdanbhai Soni v. Director of Revenue Intelligence* and concluded that no procedural illegality occurred, and the trial was valid.2. Admissibility of Statements Recorded by Custom Authorities:The appellants argued that their statements were inadmissible under Article 20(3) of the Constitution, which protects against self-incrimination. The court noted that no FIR or formal accusation was lodged when the statements were recorded. Citing *Veera Ibrahim v. State of Maharashtra* and other precedents, the court held that the statements were not hit by Article 20(3) as the appellants were not formally accused at the time. Additionally, the court found that the statements were admissible despite being retracted, provided they were corroborated by other evidence.3. Corroboration and Evidentiary Value of Statements:The court examined the statements of the accused and found sufficient corroboration among them. The court referenced the rule of corroboration as laid down in *Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau Thiruvananthapuram* and concluded that the statements were corroborated by independent evidence, including the testimony of witnesses and the forensic report confirming the presence of heroin.4. Constructive Possession and Conscious Possession:The court addressed the issue of constructive possession, noting that possession need not be physical but can be constructive. The court found that the accused Yasihey Yobin was in constructive possession of the contraband, as he had control and intention to exercise dominion over it. The court also addressed the contention that Lisihey Ngwarah was unaware of the contraband's nature. Citing *Inder Sain v. State of Punjab*, the court held that the presumption under Section 54 of the NDPS Act applied, and the burden was on the accused to prove lack of knowledge, which they failed to do.5. Legality of Seizure and Compliance with Procedural Requirements:The appellants argued that the seizure was illegal due to non-compliance with Section 42 of the NDPS Act. The court noted that the information was reduced to writing by the Custom authorities and found no serious illegality in the process. The court referenced the Kerala High Court's decision in *Kochan Velayudhan v. State of Kerala* and the Supreme Court's decision in *Pooranmal v. Director of Inspection*, concluding that even if the search was illegal, the evidence obtained was admissible.6. Authority of Customs Department to Conduct the Inquiry:The appellants contended that the State Police should have conducted the investigation. The court held that the Custom authorities were duly authorized to conduct the inquiry and found no illegality in the process adopted. The court affirmed the authority of the Customs Department under the NDPS Act.Conclusion:The court found no procedural illegality in the trial, upheld the admissibility of the statements, and found sufficient corroboration to support the convictions. The court affirmed the constructive possession of the contraband by Yasihey Yobin and the conscious possession by Lisihey Ngwarah. The court also upheld the legality of the seizure and the authority of the Customs Department to conduct the inquiry. Consequently, the court dismissed all three appeals and affirmed the judgment and sentence passed by the Special Judge.