TaxTMI 
TaxTMI 
2021 (2) TMI 830
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....ediate Superior Sh. Sukanta Das, Deputy Commissioner (SIIB), further placed it before his senior Ms. S. Vijayarani, Joint Commissioner (SIIB) for further directions. The Joint Commissioner directed Superintendent Lal Singh and Ramesh to keep surveillance and follow up the arrival of aforesaid consignment. The directions were conveyed to the Deputy Commissioner and air cargo information available on internet was searched and it was found that AWB had confirmed a cargo booking Vide Ethiopian Airline No. ET 686 dated 22.01.2019, ET 688 dated 30.1.2019 and ET 686 dated 01.02.2019. It was also secretly gather that on ET 686 dated 22.02.2019, the cargo had not arrived and a watch was kept on ET 688 dated 30.01.2019 but then also the consignment did not reach and hence a constant watch was kept on ET 686 dated 01.02.2019 as well as through Indian Customs EDI System. They also had the information that in the guise of green tea, khat leaves (also known as Kat/Qat/Chat/Mira), which is listed in the list of psychotropic substances at S. No. 110X of the Schedule of NDPS Act, as per Ministry of Finance, Department of Revenue Notification issued from F No. 12019/3/2016 dated 27.02.2018, however,....
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....pendent witnesses were called in the SIIB Office by Inspector Gaurav Sinha, Air Cargo Imports, NCH, New Delhi and he briefed the witnesses that an intelligence had been gathered that consignments imported vide Bill of Entry 9786830 dated 25.01.2019 covered under MAWB No. 07133613414 dated 23.01.2019, Bill of Entry No. 07133613403 dated 25.01.2019, and the consignment covered under MAWB No. 07133613576 dated 31.01.2019, for which Bill of Entry has not yet been filed were containing contraband substances and hence had been put under preventive-check and the said consignment was to be examined by the SIIB officers. The impugned goods were lying in the custody of CELEBI and therefore, the custodian i.e. CELEBI was requested to produce the consignment covered under the subject Bills of Entry/MAWBs in the examination SIIB Officers. Sh Rajeev Khatri, G Card holder No. 592/1999 of M/s Ananya Exim, representative of the customs broker who had filed the two bills of entry referred above on behalf of M/s Angel Incorporation, the importer, was also called to witness the proceedings of examination in presence of two independent witnesses. 5. In total, the consignment wise goods as per MAWBs ....
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....and examined. The said one carton bearing lac seal was found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leaves and one plastic package out of these 10 plastic packages was found sealed with lac seal. It was observed by the examining officers that this could be on account of the fact that a certain quantity would have been taken out by FSSAI officials for testing purpose. All the other Nine cartons were opened and examined and were found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leaves. In total 100 such plastic packages were found which were also numbered as B-1/1, B-1/2 ....B-1/10 and B-2/1, B-2/2...B-2/10 and so on till B-10/1, B-10/2, ...B-10/10 respectively. The same were declared as Dry Chat in the MAWB whereas in the Bill of Entry number 9812967, dated 28.01.2019, were declared as Dried Green Leaf. The gross weight of the 10 cartons was taken on the electronic weighing machine provided by CELBI in the examination area and it was found to be 221.890 Kgs. As the packaging in respect of the consignments covered under 10 cartons pertaining to the said MAWB were the same, in order to arrive at the net....
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....suspected Dry Chatt leaves was seized by the officers of SIIB, Air Cargo Imports under the provisions of NDPS Act, 1985. 9. Thereafter representative samples in duplicate from consignments covered under each MAWB were drawn by Shri Gaurav Sinha, Inspector in the presence of Sh. Rajeev Khatri, G-Card holder No. 592/1999 of M/s Ananya Exim and the panchas in total six representative samples were drawn in total. 10. For drawl of the representative sample from the consignment pertaining to MAWB number 07133613414, the inspector took a small quantity of substance i.e. Dry Chat leaves from each of the plastic packages containing suspected dry chatt leaves, mixed thoroughly to make the mixture homogenous and out of these two representative samples each weighing 24 grams were taken, which were individually kept in press locked plastic pouches. The same process was undertaken for drawl of representative samples in respect of other two consignments imported under MAWB No. 07133613403 and MAWB No. 07133613576. The representative samples in duplicate were serially numbered as SO1 (for original sample) and SD1 (for duplicate sample). Corresponding to lot A1 to A10, SO2 (for original sampl....
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....es were tampered with by the agency, which was not entrusted for investigation and that too without the knowledge of custom officials. Learned counsel submitted that it was thus very clear that some agency, other than the investigating agency had broke open the sealed packets and allegedly put a lac seal and thus, the case property was tempered by FSSAI officials. 13. Learned counsel next submitted that as per the prosecution, in all total six representative samples were drawn. For drawl of the representative sample from the consignment pertaining to MAWB No. 07133613414, the investigation agency / Inspector took a small quantity of substance i.e. Dry Chat leaves from each of the plastic packages containing suspected Dry Chat leaves, mixed thoroughly to make the mixture homogenous and out of these two representative samples each weighing 24 grams were taken, which were individually kept in press-locked pouches. The same process was undertaken for drawl of representative samples in respect of other two consignments imported under MAWB No. 07133613403 and 07133613576 respectively. It is the submission of petitioner's counsel that by collecting the samples from each packet and ther....
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....reen coloured bag by the appellant in his right hand. The 10 prepared two samples of 25 grams each after taking a small quantity from each of the slabs. 26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. 27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative." 18. The fact of the present case is that prosecution has mixed all the packets and thereafter, sent to FSL for examinat....