2001 (8) TMI 130 - HC - Customs

Conviction overturned, appellant acquitted due to insufficient evidence. Seizure lacked legal authority, procedural violations noted.

The court set aside the appellant's conviction and acquitted him of all charges due to the prosecution's failure to prove the case beyond a reasonable ... Sample - Prosecution Issues Involved:1. Recovery and identity of samples2. Compliance with NDPS Act provisions3. Admissibility and reliability of the statement under Section 67 of the NDPS ActDetailed Analysis:1. Recovery and Identity of Samples:The appellant was apprehended and found in possession of 470 grams of heroin concealed in capsules within his baggage. The prosecution's case hinged on the recovery of these narcotics, the drawing of four representative samples, and their subsequent handling. The appellant's counsel argued that the samples were not sent to the CRCL (Central Revenue Control Laboratory) on the same day, which could question the integrity of the samples. Additionally, the weight discrepancy of the samples sent to CRCL and the absence of a forwarding letter further fueled doubts about the genuineness of the samples. The court noted that the samples' handling and the free availability of the seal could have led to tampering, thus creating significant doubt about the prosecution's case.2. Compliance with NDPS Act Provisions:The appellant's counsel contended that there were violations of Sections 55, 57, and 53 of the NDPS Act. The court observed that there was no evidence that the officers conducting the search and seizure were authorized under Section 42 of the Act. The absence of proof of such authorization meant that the actions taken were without legal authority. Additionally, the court noted that Section 57, which mandates reporting the arrest and seizure within 48 hours, was not complied with. The lack of documentation and failure to produce the warehouse in-charge or relevant registers further weakened the prosecution's case. The Supreme Court's precedent in Mahinder Kumar v. State of Panaji (Goa) emphasized the mandatory nature of Sections 52 and 57, and their violation rendered the conviction unsustainable.3. Admissibility and Reliability of the Statement under Section 67 of the NDPS Act:The prosecution relied on the appellant's statement recorded under Section 67 of the NDPS Act. The appellant's counsel argued that this statement was not a confessional statement and was retracted after 14 days. The court noted that the statement, recorded during the investigation and before the appellant was arrested, could at best be considered an extra-judicial confession. The court highlighted that the statement alone could not form the basis of a conviction without corroborating independent evidence. Furthermore, the court observed that the appellant's statement mentioned another individual, Mr. Adams, who was discharged by the court, casting further doubt on the statement's reliability.Conclusion:The court concluded that the prosecution failed to prove its case beyond a reasonable doubt. The seizure was deemed without legal authority, the sample handling was questionable, and mandatory provisions of the NDPS Act were violated. Consequently, the appellant's conviction was set aside, and he was acquitted of all charges. The court ordered the appellant's immediate release if he was in jail.