TaxTMI 
TaxTMI 
2013 (10) TMI 953
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....led by Sh. U.R. Gupta, Air Customs Officer, against the appellant on 29th October, 2004 on the allegations that on 6th May, 2004 appellant, holder of Afghan Passport No. TR 025317 issued at Kandhar on 13th April, 2003, had arrived by Ariana Afghan Airlines, flight No. FG 322 at the arrival hall of IGI Airport, New Delhi. After clearing immigration and after collecting his checked in baggage he walked through green channel and came to the exit gate and was about to leave the customs area, when the complainant became suspicious about his movement and asked him to go to the examination table in the arrival hall. After completing the formalities the officers of customs examined two checked in bags of the appellant and found 2.680 Kgs of heroine. Charge for offence under Sections 21(c) and 23 (c) of NDPS Act was framed against the appellant, to which he pleaded not guilty and claimed trial. 3. Prosecution examined 11 witnesses in order to substantiate its case. Statement of accused was recorded under Section 313 Code of Criminal Procedure, 1973 ('Cr.P.C.') whereby all the incriminating evidence which was against him was put to him. He denied the same and claimed to be innocent. He de....
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....at 1995 (3) SCC 610. (vii) Although, Nokia mobile phone is alleged to have been recovered from the accused, no further investigation was done with regard to that mobile. 6. As such, it was submitted that prosecution has failed to bring home guilt of the accused beyond the shadow of doubt, as such, he is entitled to be acquitted. 7. Per contra, it was submitted by learned counsel for the respondent that it is a case of international smuggling. A huge recovery of 2.680 Kgs was made from the possession of appellant and there is no challenge to the recovery from his possession. As regards non-compliance of provision under Section 50 of the NDPS Act, reliance was placed on Ram Swaroop v. State (Govt. N.C.T.) of Delhi AIR 2013 SC 2068 and Gita Lama Tamang v. State of (G.N.C.T.) of Delhi 2006 (3) JCC [Narcotics] 197 for contending that in case of seizure from the bags there is no requirement for observance of safeguards provided by Section 50 of the Act. In any case, in the instant case, all the safeguards were observed. Since the appellant was an Afghani national, as such, one Sh. S.M. Ashraf Hofiyani was joined as interpreter to interpret the contents of the documents to the ap....
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....he NDPS Act Ex.PW 1/B was served upon the accused in the presence of two panch witnesses, namely, Deepak Singh and Sambhu Jeet. Recovery of contraband was affected from the hand baggage of the accused as well as from his checked-in baggage. The total weight being 2.680 Kgs., a pinch of which was tested in Field Drug Test Kit and was found positive of Herion. Both the lots recovered from the hand baggage and checked-in baggage were homogeneously mixed and three representative samples of 5 gram each were drawn therefrom marked as S-1, S-2 and S-3 and were sealed with the custom seal. The samples were kept in transparent pouches and were sealed. Panchnama Ex. PW1/C were prepared. Photographs of the concealment of the drug in the stroller bag as Ex.PW1/E, E-1 and E-2 were taken. Whole of the proceedings were explained to the accused by the interpreters in the language known to the accused. Summon under Section 67 of the NDPS Act Ex.PW1/F was served upon the accused and his voluntary statement Ex. PW1/G was recorded which was signed by him at point B and by the interpreters at point C and D, respectively and by PW1 himself at point A. Statement of panch witnesses and interpreters were a....
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...., who were not deliberately withheld or unfairly kept back, in the circumstances held, was not sufficient to throw doubt on prosecution case. 12. Besides the complainant, PW3 Sh. K.S. Garia who was working as Superintendent Prevention at IGI Airport at arrival hall also testified that Mr. U.R. Gupta, ACO brought one passenger, namely, Mohd. Dawood on suspicion of carrying Narcotic drugs, etc. He called two independent witnesses. Since the passenger appears to be speaking very little Hindi, two interpreters were called who could communicate with the passengers in Persian and in turn could communicate his version. All the proceedings were explained to the accused by interpreting the same in the language known to the accused. He also tesified that notice under Section 50 of the Act was served upon him. Thereafter, recovery was affected. 13. PW11 Rajesh Kumar confirmed regarding preparation of notice under Section 50 of the Act after duly translating the contents of the same, then preparing panchnama and other documents. No suggestion was given to the witness that the documents were not explained to the accused in his own language by the interpreter. All this goes to show that si....
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....ies, whenever a person of an accused is to be searched. For searching a blue black zipper bag, Section 50 has no application. Reference was made to the following authorities: (i) State of H.P. v. Pawan Kumar, 2005 (1) JCC [Narcotics] 107 : 2005 (4) SCC 350; (ii) State of Haryana v. Ranbir Singh @ Rana, 2006 (1) JCC [Narcotics] 75 : (2006) 5 SCC 167; and (iii) State of Punjab v. Balwant Rai, 2005 (1) JCC [Narcotics] 103 : 2005 III AD (S.C.) 407 16. The matter also came up for consideration before Hon'ble Supreme Court in Ram Swaroop (supra). In that case 32 bags of poppy straw power weighing 64 kgs. had been seized from the bags of the accused. It was established by adducing cogent and reliable evidence that the bags belonged to the appellant. It was urged that there was non-compliance of Section 50 of the Act and therefore, conviction is vitiated. Repelling the contention, Supreme Court referred to an earlier decision reported in Ajmer Singh v. State of Haryana (2010) 3 SCC 746 where the appellant was carrying a bag on his shoulder and the bag was searched and contraband articles were seized. While dealing with the applicability of Section 50 of the NDPS Act, reference ....
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....g at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison s....
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....t Sh. U.R.Gupta regarding recovery, finds corroboration from ample material on record. Mere fact that one of the panch witness, namely, Shambujeet was not examined does not cast any doubt on the prosecution version in view of the voluminous evidence coming on record against the appellant. 23. Besides above, the statement of accused himself was recorded under Section 67 of NDPS Act. Learned counsel for the appellant relied upon retraction made by the accused from the said statement, however, it was rightly observed by learned Special Judge that this retraction was on 2nd July, 2004 i.e. after 26 days of his making the statement. The same appears to be an afterthought. When the accused was produced in the Court immediately after his arrest it was not alleged by him that he was forced to make any statement. Moreover, a perusal of the statement goes to show that certain facts were disclosed by the accused which could only be within his special knowledge. In this statement he disclosed the source from where he got two bags and US $6349 and that the same were given to him by one Afghani, namely, Faizul Haq who promised him to give Rs.1,00,000/- if he carried those bags to India. The s....