2016 (12) TMI 1431 - HC - Customs

Acquittal due to Lack of Evidence: Procedural Lapses and Unreliable Witnesses

Marek Jaroslaw Lewandowicz, Son of Zygmnut Lewandowicz, Johann Tuchler Versus Superintendent of Customs, Air Intelligence Unit, Bangalore

The court acquitted the accused due to the prosecution's failure to prove possession of contraband beyond reasonable doubt. Procedural lapses, unreliable ... Carriage of contraband item - baggage rules - brownish-green packet of a gum like substance wrapped in a transparent plastic sheet - hashish - it was presumed that the accused persons were found in possession of ‘Charas’ and hence the burden to prove that they were innocent, was shifted on them. Both the accused were charged with offences punishable under Section 8(c) read with Sections 21, 23(c), 28 and 29 of the NDPS Act, for entering into a criminal conspiracy to possess, smuggle and illegally transport the narcotic drug out of India. Held that: - the Bangalore International Airport being a busy place, the failure of the prosecution in taking down the contact details or address of the independent witnesses has committed a grave error in not complying with the mandatory provisions providing strict safeguards to the accused as the act alleged to have been committed amount to grave offences. This in turn leads this Court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872. The reasoning of the trial court in coming to the conclusion that the accused were found in possession of the contraband and that they were trying to transport the same out of India without any legal permit and thereby convicting them under Sections 21(c) and 28 of the NDPS Act is found to be erroneous. As the material seized during the proceedings forms the basis of the investigation, the inability of the prosecution to prove the case, especially the genuineness of the search and seizure proceedings, beyond all reasonable doubt, vitiates the case of the prosecution. The accused are acquitted - appeal allowed - decided in favor of appellant. Issues Involved:1. Receipt and validity of the alert message.2. Compliance with procedural safeguards under NDPS Act.3. Reliability of witness testimonies and evidence.4. Conscious possession of contraband by the accused.5. Non-examination of independent witnesses.6. Admissibility and reliability of voluntary statements under Section 67 of NDPS Act.7. Delay in arresting the accused after the Mahazar proceedings.Detailed Analysis:1. Receipt and Validity of the Alert Message:The prosecution's case began with an alert message received on 27.10.2009, regarding the accused transporting contraband. However, the individuals who received and transmitted this alert were not examined as witnesses. The court noted discrepancies in how the alert message was received and forwarded, questioning the authenticity of the alert message (Ex. P1), which was a photocopy and not the original. The court cited the case of Smt J. Yashoda v. Smt K. Shobha Rani, emphasizing that secondary evidence must meet specific criteria, which were not satisfied here.2. Compliance with Procedural Safeguards under NDPS Act:The court observed that the procedural safeguards under Section 57 of CrPC and Sections 42 and 50 of NDPS Act were not strictly followed. The arrest of the accused was delayed by 22 hours after the Mahazar proceedings, raising suspicion about the authenticity of the documents and the procedure followed. The court found no credible explanation for this delay, undermining the prosecution's case.3. Reliability of Witness Testimonies and Evidence:The court found inconsistencies in the testimonies of key witnesses, including the Complainant (PW3) and the Deputy Commissioner of Customs (PW2). PW2's limited involvement and lack of signatures on seized materials contradicted the Complainant's statements. The court also noted that the independent witnesses' statements were not recorded, further casting doubt on the prosecution's narrative.4. Conscious Possession of Contraband by the Accused:The court questioned the evidence of conscious possession of contraband by the accused. The prosecution failed to prove beyond reasonable doubt that the accused were in possession of Hashish. The court highlighted the lack of incriminating evidence found on the accused's persons and the suspicious circumstances surrounding the retrieval of the checked-in baggage.5. Non-examination of Independent Witnesses:The court emphasized the importance of examining independent witnesses in NDPS cases, as established in Ritesh Chakravarti v. State of M.P. The failure to examine independent witnesses, who allegedly witnessed the search and seizure, led the court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872.6. Admissibility and Reliability of Voluntary Statements under Section 67 of NDPS Act:The court scrutinized the voluntary statements made by the accused under Section 67 of NDPS Act. The accused later retracted these statements, claiming they were made under coercion. The court found no corroborative evidence to support the voluntary nature of these statements, thereby rendering them unreliable for conviction.7. Delay in Arresting the Accused after the Mahazar Proceedings:The court found the unexplained delay of 22 hours between the Mahazar proceedings and the arrest of the accused suspicious. This delay suggested possible fabrication of documents and raised doubts about the prosecution's case.Conclusion:The court concluded that the prosecution failed to prove beyond reasonable doubt that the accused were in possession of contraband and attempting to smuggle it out of India. The procedural lapses, unreliable witness testimonies, and lack of credible evidence led the court to acquit the accused. The judgment of the trial court was set aside, and the accused were ordered to be released immediately.