Delhi District Court
Air Custom Officer vs Mr. Haji Mohammad on 26 March, 2011
1
IN THE COURT OF MS RAVINDER KAUR :
ADDL SESSIONS JUDGE/ SPECIAL JUDGE
(NDPS), NEW DELHI
SC No. 02/3/08
Sh Rakesh Kumar Gupta
Air Custom Officer,
IGI Airport, New Delhi .... Complainant
Versus
Mr. Haji Mohammad
S/o Mr Gehasusuddin,
R/o Village Gorian
P S Gorian, Herat, Afghanistan .... Accused
Date of Institution : 29.03.2008
Date of Decision : 26.03.2011
JUDGMENT
1 The accused Hazi Mohd has faced trial SC No. 02/3/08 Page No. 1 2 U/s21, 23 r/w Sec. 28 of the NDPS Act, 1985 2 The prosecution case is that on 8.10.2007 the accused arrived at IGI Airport by KAM Air flight No. RQ0013 holding passport No. 685426 dated: 25.2.06. He was only carrying a hand bag and was not having any checked in baggage. Surveillance was kept on him in the arrival hall IGI Airport due to suspicion that he may be carrying some contraband substance. He was stopped near exit gate of the arrival hall after crossing the green channel and was asked by the customs officer as to whether he was carrying any goods to be declared to the customs but he replied that he was carrying only personal effects. He was specifically asked whether he was carrying any contraband goods but he denied. The complainant was not satisfied with his reply and he joined two independent witnesses and in their presence, the accused was again asked whether he was carrying any goods or contraband goods to be declared to customs but he claimed to be SC No. 02/3/08 Page No. 2 3 carrying only personal effects. Thereafter notice U/s 50 NDPS Act as well as U/s 102 Customs Act was served upon the accused that he had an option to get the examination of his baggage and personal search conducted before a Gazetted Officer of customs or a Magistrate. That the accused did not know either Hindi or English language, as such Sh Borhan Ahmadi an official from KAM Airlines who knew the language of the accused was asked to make him understand the contents of the notice. The contents of both the notices, referred above, were explained to him by Sh Borhan Ahmadi but he expressed that he had no objection if any custom officer conduct the search of his person or his baggage. Then he was taken to customs preventive room in the arrival hall for further examination. The hand bag carried by the accused was checked in the presence of the panch witnesses which was found containing clothes and personal effects. The bag was emptied of its content and the bottom portion of the bag SC No. 02/3/08 Page No. 3 4 was then cut opened and a white colour stitched cotton cloth belt with velcro having four partitions was detected, which was pricked with the help of a needle and white powder suspected to be some Narcotics substance oozed out of the same. Accused was asked about the substance and he affirmed that it was Narcotics substance. After removing the stitches of the cotton belt, four packets ( three big and one small) wrapped with yellow adhesive tape were recovered which were given Mark A, B, C and D and were found containing off white powder which was tested with the field test kit and found positive for Heroin. The contents of each packet were weighed and were found to be 400 grams, 1194 grams, 1122grams, 1223 grams respectively, the total weight being 3939grams . The said substance was seized under NDPS Act. Three representative samples of 5 grams each were drawn from the contents of each of the packet and were given Mark A1, A2, A3, B1 B2 B3, C1 C2 C3 and D1 D2 D3 SC No. 02/3/08 Page No. 4 5 and were kept in 12 poly packs and then further placed in 12 brown colour envelopes sealed with custom seal No 6 over label bearing the details of the contents, the signatures of the panch witnesses, accused and the complainant.
3 The remaining substance was kept in four separate plastic bags of Flamingo duty free and then kept in plastic containers which were wrapped with off white cloth separately and were given Mark A, B, C and D and were sealed with custom seal No 6 over label bearing the details of the contents, the signatures of the panch witnesses, accused and the complainant. 4 The concealing material, the personal effects of the accused and the travel documents of the accused were also seized. Panchnama was prepared. The statement of the accused was recorded U/s 67 NDPS Act on 9.10.2007 and therein he admitted the recovery of contraband from his possession. The accused was arrested SC No. 02/3/08 Page No. 5 6 under the provisions of NDPS Act. Report U/s 57 NDPS Act was sent by the complainant to Sh Ashok Kumar ACS on 9.10.2007. The case property, jamatalashi, personal effects, representative samples, remnant samples were deposited in warehouse vide detention receipts enclosed alongwith the complaint.
5 Information was sent to the various authorities by the Asstt. Commissioner Preventive ACP on 9.10.2007 regarding the seizure of Heroin and his arrest. 6 On 10.10.2007 the representative samples Mark A1, B1 , C 1 and D 1 alongwith test memo in triplicate were deposited in the CRCL by Sh Rakesh Kumar Gupta ACO alongwith the forwarding letter duly signed by the ACS. That vide test report F No. 1/ND/R/2007/CLD497 to 500(N) dated 21.11.2007 of the CRCL, it was opined that on analysis the samples Mark A1 B1 C1 and Dl answered positive for diacetylmorphine, The remnant samples were received SC No. 02/3/08 Page No. 6 7 from the CRCL and were deposited with SDO(A) on 07.12.2007 vide DR No. 29178. The remnant samples were again taken by the complainant to CRCL on 13.2.2008 for determining the purity percentage. Fresh report dated: 10.3.2008 was received in this regard from the CRCL.
7 After completion of the investigation the complaint was filed in the court by Sh.Rakesh Kumar Gupta ACO against the accused U/s. 21,23,28 29 NDPS Act.
8 On the basis of material on record, charge U/s. 21 and 23 r/w Sec. 28 NDPS Act was framed against the accused, to which he pleaded not guilty and claimed trial.
9 The prosecution in support of its case had examined 8 witnesses. 10 PW 1 Sh Ashok Kumar Superintendent
was ACS at IGI Airport on 10.10.07. He testified that on SC No. 02/3/08 Page No. 7 8 that day he had issued authority letter Ex. PW 1/A authorizing Sh. Rakesh Kumar Gupta to carry representative samples Mark A1, B1 and C1 for analysis to CRCL, New Delhi. He further proved his counter signatures on the D.Rs Ex. PW 1/B to Ex. PW 1/F bearing Nos.03932 to 03936 vide which different articles were deposited in the warehouse. He further proved the Detention receipt Ex. PW 1/G vide which the remnant samples Mark A1, B1, C1 and D 1 were deposited in the warehouse.
11 As per his testimony, he had also issued authority letter Ex. PW 1/H authorizing Sh. Rakesh Kumar Gupta to deposit remnant samples at CRCL, New Delhi for determination of percentage of purity of the samples which was not earlier carried out by the CRCL. He testified that after determination of percentage purity, remnant samples were again received at IGI Airport and the same were deposited in the SC No. 02/3/08 Page No. 8 9 warehouse at IGI Airport vide DR No. 29046 Ex. PW 1/J. He further testified that on 9.10.2007 Sh R K Gupta ACO had placed before him report U/s 57 NDPS Act Ex. PW 1/K. 12 PW 2 is Jai Veer Singh, Lab Assistant, CRCL, New Delhi. He testified that on 10.10.07 on being authorised by Sh. J. S. Aggarwal, he had received one authorisation letter Ex. PW 1/A in favour of Sh Rakesh Kumar Gupta alongwith the samples and test memo in duplicate and issued the receipt Ex. PW 2/A. 13 Further that on 13.2.08 he had again received an authority letter Ex PW 1/H alongwith the test memo in duplicate and remnant samples which he took to Sh S C Mathur CE who checked the seals and found the same to be intact and directed him to receive the remnant samples. He further stated that to this effect he issued a receipt, however, the said receipt has not been proved on record.
SC No. 02/3/08 Page No. 9 10 14 PW 3 is Sh Kishan Chand Supdt. He testified that he was working as SDO(A) Shift B IGI Airport from 9pm on 8.10.07 to 9am on 9.10.07 and application PW 3/A was moved by the complainant Sh Rakesh Kumar Gupta for issuance of the custom seal No.
6. Thereafter he handed over the custom seal No. 6 to the complainant vide receipt on the application at point A. He further testified that on 9.10.07 the complainant deposited the sealed packets and custom seal No. 6 vide D R 03932 to 03936 , all dated 9.10.07.
15 PW 4 Sh V P Bahuguna Asstt. Chemical Examiner was posted in Narcotics Section CRCL on 6.11.2007. He testified that on that day the samples were reallotted to him by Sh S C Mathur CE and he checked the seals and facsimile on the sample packets which were OK. That on 22.11.07 the samples were taken out from the strong room and qualitative analysis of the samples were conducted on that day in the presence of SC No. 02/3/08 Page No. 10 11 Sh S C Mathur and on the basis of chemical and chromatographic examination, the samples were found to be HEROIN. He proved the test report Ex. PW 4/ A. He further deposed that he had again examined the remnant samples on 13.2.08 for quantitative analysis of diacetylmorphine and proved his report Ex PW 4/B to this effect that after conducting the chemical and chromatographic percentage of diacetylmorphine obtained in these samples ranged from 43% to 57%. That thereafter the remnant samples sealed with the seal of CRCL Government of India II alongwith CRCL report were handed over to the despatch section. He identified the remnant samples as Ex PW 4/9 Ex PW 4/12, Ex PW 4/15 and Ex PW 4/18 respectively which were produced in the court in sealed condition from the packets marked as A 1 to D1.
16 PW 5 Sh Rakesh Kumar Gupta Inspt Central Excise Custom is complainant in the present case, SC No. 02/3/08 Page No. 11 12 who is also the seizing as well as the arresting officer in the present case. He deposed on the lines of the complaint Ex. PW 5/A. He testified that on 8.10.2007 he was posted at arrival hall custom IGI Airport, New Delhi. Surveillance was kept on flight No RQ0013 arriving from Kabul to New Delhi. In that process a passenger namely Hazi Mohd., was intercepted at the exit gate of green channel and he asked him whether he was carrying any contraband like Narcotics etc., to which he replied that he was carrying only personal effects. That again he had asked him the same question to which he replied again in negative. He testified that at this stage he called two independent witnesses and in their presence had again asked from the accused the above question but he gave the same answer. On not being satisfied by the reply of the accused he was taken to the arrival room of the custom area for further detailed examination and served notice U/s. 102 Customs Act Ex.PW5/B and notice U/s. SC No. 02/3/08 Page No. 12 13 50 NDPS Act Ex. PW5/C upon him. The witness proved his signature on both the notices at point A and of the panch witnesses at point B and C respectively and the thumb impression of the accused at point D and E respectively. He stated that one of the panch witnesses ie Borhan Ahmadi was working with Kabul Airlines who knew the language of Dari and Farsi usually spoken in Afghanistan and he interpreted the contents of both the notices U/s 102 Customs Act and U/s 50 NDPS Act. That he explained to the accused that search of his person and baggage was to be conducted and he had an option to get the search conducted in the presence of a Magistrate or a Gazetted Officer. That interpretor told PW 5 that the accused had no objection if his person or baggage was searched by a custom officer and an endorsement to this effect was made on both the notices from point A to A. 17 PW 5 testified that the accused was carrying only one hand bag of black colour which was SC No. 02/3/08 Page No. 13 14 found containing personal effects of the accused but its bottom was appearing to be heavy which was cut opened and was found containing one stitched white colour cloth waist belt which was found containing white colour powder in four packets wrapped with yellow colour tape and these packets were given Mark A, B, C and D respectively and were weighing 400grams, 1194grams, 1122grams and 1223 grams respectively. From each packet some substance was taken out which was tested on the field drug test kit and was found positive as 'Diacetylmorphone'.
18 PW 5 also deposed about drawing of three representative samples of 5 grams each from the said substance and that the same were given Mark A1, A2 & A3, B1, B2 & B 3, C 1, C2 & C3 and D 1, D 2 & D3. He deposed about the manner in which the samples, the remaining case property and the packing material were seized and sealed with custom seal No. 6. He also SC No. 02/3/08 Page No. 14 15 deposed that the paper slips were affixed on all the sample envelopes which were signed by the witness, both panch witnesses and the accused. He further deposed that panchnama Ex. PW 5/F was drawn at the spot and was signed by the witness, panch witnesses and the accused on all the pages at point A, B, C and D respectively and bearing the thumb impression of the accused at point E and F on the last page. As per his testimony the contents of the panchnama were explained to the accused in his language by panch witness Borhan Ahmadi . 19 PW 5 further testified that the statement of accused was recorded U/s 67 NDPS Ex. PW 5/G and that it was reduced into writing by panch witness Borhan Ahmadi in his own handwriting who spoke to the accused in his language and wrote the same in English language and made an endorsement to this effect on the statement ExPW 5/G at point A to A. 20 PW 5 further deposed about the deposit of SC No. 02/3/08 Page No. 15 16 the remaining case property, packing material, personal effects, four representative samples Mark A 1 to D1 and remaining representative samples with the SDO(A) vide DRs bearing No. 3932 to 3936, all dated: 9.10.207 EX PW 1/B to Ex. PW 1/F. 21 PW 5 also deposed that on 9.10.07 itself intimation was sent by Sh. Asstt. Commissioner Preventive Sh V B Prabhakar to FRRO, Embassy of Afghanistan, Chief Documentation Officer and Joint Secretary of Ministry of External Affairs regarding arrest of accused and recovery from his possession.
22 PW 5 further deposed about the arrest of the accused vide arrest memo Ex PW 5/H bearing his signature at point A, further bearing the signatures and thumb impression of accused at point B, C and D respectively. That his jamatalashi was conducted and jamatalashi articles were deposited with the SDO(A) vide DR No 3938 dated 9.10.07 Ex, PW 5/J. SC No. 02/3/08 Page No. 16 17 23 PW 5 further proved the report U/s 57 NDPS Act dated: 9.10.2007 Ex PW 1/K. He deposed that accused was got medically examined at RML hospital vide MLC No. 01356 Mark PX.
24 PW 5 further deposed that on 10.9.07 he had withdrawn four representative samples from the valuable godown and had deposited the same with the CRCL on the basis of forwarding letter Ex PW 1/H alongwith the test memo. That he was handed over the remnant samples by Sh V B Prabhakar AC and under his directions deposited the same in the warehouse vide DR No 29178 dated 7.12.07 Ex PW 1/G. He testified that in the report given by the CRCL the purity percentage was not given, as such the remnant samples were again deposited by him in the CRCL in the month of Feb 2008 under written direction of Superintendent Customs vide letter Ex PW 1/H and he had obtained the receipt of deposit from CRCL which is Ex PW 2/B. That in the SC No. 02/3/08 Page No. 17 18 month of March second report of CRCL Ex. PW 4/B was received alongwith the remnant samples and the remnant samples were deposited by him vide DR No 29046 Ex. PW 1/J. 25 PW 5 further testified that he had recorded the statements of the panch witnesses U/s 67 NDPS Act and he proved the statement of panch witness Amit Kohli as Ex PW 5/K and of panch witness Borhan Ahmadi as Ex PW 5/L. 26 PW 5 further testified that the test memo was prepared in triplicate and that duplicate test memo was deposited in the CRCL. The office copy of the test memo was proved by the witness as Ex. PW 1/D1. He testified that test memos were prepared in the morning of 10.10.2007.
27 During his further testimony, he proved the travel documents of the accused ie the boarding pass Ex. PW 5/D, certified copy of the air ticket Ex. PW 5/E, SC No. 02/3/08 Page No. 18 19 resident permit Ex PW 5/M, custom slip Ex PW 5/N. 28 PW 5 also correctly identified the accused during the course of his testimony.
29 During the course of his testimony, PW 5 also identified the case property i e the remaining recovered substance as Ex. P4, the off white cloth pulanda bearing the case particulars as Ex P1, the rectangular container in which the substance Ex.P 4 was kept in a white colour polythene as Ex P2 and white colour polythene as Ex. P3, the paper slip alongwith the jute string found on the cloth pulanda as Ex. P5 which is bearing the signature of accused at point B, of the panch witnesses at point C and D and of PW 5 at point A. 30 PW 5 identified the substance contained in pulanda Mark B as Ex P10, the paper slip and jute string Ex. P6, the off white cloth pulanda Ex. P7, the plastic container Ex. P8 white colour polythene Ex. P9 in which the substance Ex. P10 was found.
SC No. 02/3/08 Page No. 19 20 31 PW 5 further identified the substance contained in pulanda Mark C as Ex P15, the paper slip and jute string Ex . P11, the off white cloth pulanda Ex. P12, the plastic container Ex. P13, white colour polythene Ex. P14, in which the substance Ex. P15 was found.
32 PW 5 further identified the substance contained in pulanda Mark D as Ex P20, the paper slip and jute string Ex . P16, the off white cloth pulanda Ex. P17, the plastic container Ex. P18, white colour polythene Ex. P19, in which the substance Ex. P20 was found.
33 PW 5 also correctly identified the contents of eight representative samples Mark A2 A3, B 2, B 3, C 2, C 3 and D 2 D 3 ie Ex P23, Ex P26, Ex P 29, Ex P32, Ex P35, Ex P 38, Ex P 41, and Ex P 44 and the contents of the remnant samples Mark A1 to D1 as Ex. PW Ex. PW 4/9, Ex. PW 4/12, Ex. PW 4/15 and SC No. 02/3/08 Page No. 20 21 Ex. PW 4/18.
34 PW 6 Sh Ram Chander Inspt Import & General was posted as SDO(A) on 7.12.07 and as per his testimony one sealed packet sealed with custom seal No. 6 was deposited in his custody vide DR No 29178 Ex.PW 1/G containing remnant sample Mark A 1 to D1 regarding which entry was made at serial No. 4384 in the SDO(A) register. That he hand over the charge to Sh S Tripathi, who made entry in the SDO(A) register to this effect at serial No. 4385 dated 7.12.07. He proved the relevant record of the SDO(A) register as Ex PW 6/A which was objected to by the defence counsel as the copy of the same was neither filed alongwith the complaint nor it was mentioned in the complaint that any such document was prepared.
35 PW 7 Sh Bijender Singh Inspt New Customs House was posted as SDO(A) on 11.3.08 and in his custody one sealed packet containing remnant sample SC No. 02/3/08 Page No. 21 22 bearing custom seal No. 6 was deposited by Sh Rakesh Kumar Gupta vide DR No 29046 regarding which he made entry in the SDO(A) register at serial No. 5286 and proved the copy of the SDO(A) register as Ex.PW 7/A. 36 PW 8 Sh Amit Kohli is the panch witness, who witnessed the recovery of contraband from the handbag of the accused and deposed on the lines of the case of the prosecution. However, as per his testimony 16 samples were drawn from the recovered substance and he did not testify properly about the sealing of the representative samples and the case property and was declared partly hostile. He was cross examined by Ld. SPP for Customs and during cross examination he admitted that whatever proceedings were mentioned in panchnama Ex PW 5/F were conducted in his presence. He also admitted that from the four packets of recovered substance three samples each i e A1 to A3, B 1 to B3, C1 to C3 and D 1 to D3 were drawn and deposed about the SC No. 02/3/08 Page No. 22 23 manner of the sealing of the samples as well as the case property. He also correctly identified the contents of the representative samples and the remnant samples and the remaining case property. Besides, he also identified his signatures on the paper slip Ex P5, Ex. P6, Ex P P11, Ex PP16 and Ex P P45.
37 After conclusion of the prosecution evidence, the statement of the accused was recorded U/s 313 Cr PC after Sh. Shamsher Wani, the interpretor had read over the questions to the accused in his language and obtained the reply and then translated the same to the court in the language of the court. The accused admitted, he arrived at IGI Airport from Afghanistan on 8.10.2007 by flight NO KAM RQ0013. However, he denied that he was carrying any hand bag or that any contraband was recovered from his handbag. He denied that notice U/s 50 NDPS Act and 102 Customs Act were served upon him through Borhan Ahmadi. He also denied SC No. 02/3/08 Page No. 23 24 that any question was put to him in his own language and that endorsement to this effect was made at point A to A on both the notices referred above. He claimed that his thumb impressions on both the notices were obtained forcibly. That his travel documents were taken forcibly by the custom officer without disclosing any reason. He denied the recovery of four transparent polythene packets containing off white powdery substance in the cotton belt recovered from the bottom portion of his hand bag. He also stated that his thumb impression and signatures were forcibly obtained on various blank papers, blank small chits, semi written papers and written papers at one point of time without explaining the contents in the language known to him. He denied that he had made any statement voluntarily. He stated that he has been falsely implicated in the present case and no contraband was recovered from his possession and from his baggage. He further stated that on his arrival he was SC No. 02/3/08 Page No. 24 25 illegally kept and detained by custom officials without disclosing any reason. That his family history was obtained during the said period and thereafter his signatures and thumb impression were obtained forcibly on various blank papers, blank small chits, semi written papers, written papers at one point of time without explaining the contents in the language known to him. That he was beaten in a room where one more Afghani national was present and he was suspected carrying some material but he was allowed to go on the next day. He further stated that he retracted his statement in Dari language which is on the judicial record. 38 I have heard arguments addressed by Ld. SPP for customs and Sh Yogesh Saxena, amicus curiae for the accused.
39 Ld SPP has submitted that the prosecution has proved its case beyond reasonable doubt vide the testimony of PW 5 Sh. Rakesh Kumar Gupta SC No. 02/3/08 Page No. 25 26 Inspt Customs and PW 8 Sh Amit Kohli that 3.939kgs of Heroin was recovered from the possession of the accused which he had brought alongwith him from Afghanistan and was recovered from his hand bag after the notices U/s. 50 NDPS Act and U/s 102 Custom Act were served upon the accused through Sh Borhan Ahmadi who knew Dari and Farsi language which were the only languages in which the accused could converse.
40 It is submitted that the prosecution has further proved that the samples Mark A 1 to D3 were drawn at the spot and the samples Mark A1 to D 1 were sent to the CRCL where they were examined qualitatively and quantitatively and were found to contain '' diacetylmorphine''. Further the case property and the samples drawn therefrom were deposited in the custody of the SDO(A) at the earliest on 9.10.2007. That report U/s. 57 NDPS Act was sent to the superior officer within time prescribed by the Act. That the accused had also made SC No. 02/3/08 Page No. 26 27 voluntary statement U/s 67 NDPS Act through Sh Borhan Ahmadi , a panch witness who was acquainted with the language of the accused and after conversing with the accused had recorded his statement in his own handwriting. It is submitted that all the mandatory safeguards for the protection of the accused against false implication were complied with. It is submitted that in these circumstances the prosecution has proved beyond reasonable doubt that accused had brought to India the Diacetylmorphone ( Heroin ) 3.939 kgs without any legal permission and was found in conscious possession of the same, thus he is liable to be convicted for the offences he is charged with.
41 On the other hand, the counsel for the accused has submitted that PW Borhan Ahmadi who is an important witness of the prosecution has not been examined for the reasons best known to the prosecution. It is submitted that he is the witness through whom the SC No. 02/3/08 Page No. 27 28 prosecution claims to have explained to the accused the proceedings of this case in the language of the accused since accused was admittedly not acquainted either with Hindi or English language but only knew Dari and Farsi language. That the prosecution has claimed to have served notice U/s 50 NDPS Act and U/s 102 Customs Act upon the accused through Borhan Ahmadi who made an endorsement on the notice U/s. 50 NDPS Act Ex. PW 5/C to the following effect: " Read over and explained in vernacular to Mr Haji Mohammad who consented for search by customs officer and signed in token of acceptance."
The said endorsement was made by Borhan Ahmadi from point A to A has not been proved on record as it is only Borhan Ahmadi who could have deposed and explained to the court the manner in which the notices were served upon the accused. It is submitted that there is no SC No. 02/3/08 Page No. 28 29 compliance of the provisions of Section 50 NDPS Act since there is no evidence on record that the accused was informed about his legal right to get his person and baggage searched in the presence or a Gazetted Officer of a Magistrate. It is submitted that before the search of the baggage of the accused and his person was conducted, the custom officer was not aware of the fact that the recovery of contraband or any incriminating article/ substance would be from his person or his baggage, as such it was mandatory on the part of prosecution to have complied with the provisions of Sec. 50 NDPS Act.
42 It is submitted that it is admitted case of the prosecution that the proceedings in the present case were conducted simultaneously alongwith the proceedings in the other case i e custom Vs Mohd Bagour and Borhan Ahmadi was joined in the proceedings of both the cases. That in the present case he was joined as a panch witness, whereas in the other case he was joined as an interpretor SC No. 02/3/08 Page No. 29 30 since the accused in that case also did not know Hindi or English language and was acquainted only with Dari and Farsi language. Further that the statement of the accused U/s 67 NDPS Act has not been proved on record properly, as it is recorded in the handwriting of Borhan Ahmadi and as per the prosecution he spoke to the accused in his own language and then recorded the same in English language. However, the said statement could not have been proved by the complainant merely for the reason that it was written by Borhan Ahmadi in his presence, as complainant does not know what was spoken by Borhan Ahmadi to the accused in Dari and Farsi language and what reply was given by the accused to say that the statement was correctly recorded by Borhan Ahmadi. It is only Borhan Ahmadi who could have proved the said statement.
43 He further stated that no test memo was prepared at the spot at the time of drawl of the SC No. 02/3/08 Page No. 30 31 samples from the alleged recovered substance and that the test memos proved on record are dated 10.10.2007. That there is no evidence on record that the custom seal No. 6 was available with PW 5 on 10.10.07 for preparing the test memos. That on the test memos there is no facsimile impression of custom seal No. 6. It is submitted that there is no explanation of the prosecution as to why the test memos were not prepared on the date and time when the samples were drawn. It is submitted that though PW 4 has testified that register is maintained with SDO(A) where entries were made regarding the handing over and return of the seal, however, no such entry dated 10.10.07 has been proved on record. That the testimony of PW 8 Amit Kohli does not inspire credence, as in his chief examination he did not testify about all the proceedings conducted at the spot which leads to the inference that he was not present there and thus his testimony should not be relied upon. It is submitted that his statement before SC No. 02/3/08 Page No. 31 32 the court is beyond his statement U/s 67 NDPS Act, as such he appears to be a tutored witness. The defence counsel has further argued that there is no evidence on record that the test memos sent alongwith the representative samples to the CRCL were bearing the impression of custom seal No. 6 with which the samples were allegedly sealed, as there is no facsimile impression of the seal on the test memo received in the CRCL but the same is bearing broken lac seal under white transparent tape and that this fact also does not find mention in the report of the CRCL that the seal impression was not there on the test memo and it was bearing a lac seal. The lac seal on the test memo on the reverse of which the report of CRCL is there, is not legible and as such it appears that the same was not even compared in the CRCL and in routine the observations were made in the report that the seals on the sample envelopes were tallied with the facsimile seal on the test memo. It is submitted that in SC No. 02/3/08 Page No. 32 33 these circumstances accused is liable to be acquitted. 44 After hearing the submissions of both the parties, I have carefully gone through the material on record.
45 It is admitted case of the prosecution that the accused was intercepted at IGI Airport on his arrival from Afghanistan. However, it is denied by him that any incriminating substance was recovered from his possession. The prosecution to prove the recovery of the contraband from the possession of the accused has examined PW 5 Rakesh Kumar Gupta, the seizing and arresting officer and PW 8 Amit Kohli a panch witness. PW 5 Rakesh Kumar Gupta testified that the accused was served with notice U/s 50 NDPS Act. That the hand bag of the accused was checked which was found containing personal effects of the accused but the bottom of the same appeared to be heavy and the same was cut open and the same was found containing one stitched white colour cloth waist belt SC No. 02/3/08 Page No. 33 34 containing white colour powder suspected to be Heroin, in four packets. Similarly PW 8 Amit Kohli, a panch witness to the panchnama proceedings deposed about the fact that he was joined by Mr Rakesh Kumar in the proceedings at the exit gate at IGI Airport where some suspect ie the accused was detained. He stated that in his presence Sh.Rakesh Kumar Gupta interrogated the accused who was carrying one black colour zipper bag and he was asked whether he was carrying any suspicious article in the bag but the accused denied. That thereafter the accused was given an option by Rakesh Kumar Gupta that the bag could be searched in the presence of a Gazetted Officer of Customs or a Magistrate. He deposed about joining of Sh Borhan Ahmadi, official of KAM Airlines as the accused was not understanding Hindi and English language and Borhan Ahmadi knew Afghani language. He further deposed on the lines of the prosecution case that the bottom of the hand bag of the accused was found sealed SC No. 02/3/08 Page No. 34 35 with velcro which was removed and there was a belt made of cream colour cotton cloth divided in four portions which was containing four packets consisting of off white colour powdery substance which the accused admitted through Borhan Ahmadi to be some Narcotics Substance. The presence of PW 8 at the spot appears to be doubtful, as though the prosecution has claimed that he was present throughout the panchnama proceedings but in his chief examination the manner in which the samples drawn and remaining case property were sealed was described incorrectly. He stated that the samples drawn were kept in small poly bag and then wrapped in off white cloth and then sealed with custom seal No. 6 whereas the samples were not sealed in the manner as deposed by the witness. Similarly, as per his testimony the remaining substance was kept in four separate brown colour envelopes and as per him the same were kept in separate plastic containers which was kept in a bag which is SC No. 02/3/08 Page No. 35 36 contrary to the case of prosecution. PW 8 also did not testify that the same were sealed in his presence at the spot. He testified that no other proceedings had taken place in his presence. He also stated that before leaving he had given his statement in his own handwriting to Sh Rakesh Kumar Gupta and exhibited his statement as Ex PW 5/K, however it is observed that the said statement was not recorded on the intervening night of 8/9/1007 but is dated: 9.2.2008 ie after four months of the incident which creates doubt about the presence of the witness at the spot. It is further important of notice that this witness was declared hostile by the prosecution and was cross examined. During his cross examination by the defence counsel the witness stated that it is the customs officials who had informed him that the bag in question belonged to the accused which leads to inference that bag was not recovered from accused in his presence. During cross examination he could not tell as to when and what SC No. 02/3/08 Page No. 36 37 document was prepared and he stated that his signatures were obtained on various documents at different times when they were prepared. This witness was confronted with his statement Ex PW 5/K regarding his examination in chief to the effect that at 7:30pm he was present at the shop when Sh. Rakesh Kumar Gupta came to him, that at the Arrival gate two custom officials were present with accused Haji Mohd, that Borhan Ahmadi was called and thereafter he acted as interpretor and notice U/s. 50 NDPS Act and U/s 102 Customs Act was served upon the accused, that accused was explained in his language by Borhan Ahmadi the contents of panchnama. All the facts deposed by him in his chief examination do not find mention in his statement Ex PW 5/K which was recorded after four months of the incident. In such circumstances, it becomes doubtful that whatever he did not remember after four months of the incident, how could he remember after four years of the incident when he deposed in the SC No. 02/3/08 Page No. 37 38 court. This also leads to the inference that he was a tutored witness. Similarly, there are various discrepancies in the prosecution evidence and it is observed that the mandatory provisions/safeguards which were to be observed by the seizing officer during the investigation were not complied with which creates doubt about the truthfulness of the prosecution case. The link evidence is also missing at various places due to which tampering of the case property also cannot be ruled out. All these points are discussed hereinafter.
46 Admittedly, an offence committed under NDPS Act is a grave one. Procedural safeguards provided to the accused under a statute require strict compliance. Section 50 NDPS Act provides an extremely valuable right to the concerned person/ suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguards contained in Sec. 50 is intended to protect a SC No. 02/3/08 Page No. 38 39 person against false accusation and frivolous charges, as also to lend creditability to the search and seizure conducted by the empowered officer. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the search and seizure proceeding and it would also strengthen the prosecution case. It is the duty of the empowered officer to inform the concerned person/ suspect of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. The prosecution must at the trial establish that the empowered officer had conveyed the information to the concerned person of his/ her right of being searched in the presence of a Magistrate or a Gazetted Officer, at the time of the intended search. It is held by the Hon'ble Apex Court in the case of State of Punjab Vs Baldev Singh reported in JT 1999(4) SC 595 that courts have to be satisfied at the trial of the case about due compliance with SC No. 02/3/08 Page No. 39 40 the requirements provided in Sec. 50 NDPS Act, that no presumption U/s 54 NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court that the requirements of Sec. 50 were duly complied with. It is held that the safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Sec. 50 to ensure that persons are only searched with a view to maintain veracity of evidence derived from such search. That severe punishments have been provided under the Act for mere possession of illicit drugs and Narcotics substances. Personal search, more particularly for offences under the NDPS Act are crucial means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Sec. 50 of the Act are observed scrupulously. It was further held that provisions of sub section (1) of Section 50 make it imperative for the empowered officer to "inform the person concerned SC No. 02/3/08 Page No. 40 41 ( suspect) about the existence of his right that if he so requires, he shall be searched before a Gazetted officer or a Magistrate and failure to "inform"the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a Gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been record only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a Gazetted officer or a Magistrate, if so required by him.
SC No. 02/3/08 Page No. 41 42 47 It is held by the Hon'ble Apex Court in the judgment of "Vijaysinh Chandubha Jadeja Vs State of Gujarat reported in 2010(4) LRC 225 (SC) as follows:
"We are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory SC No. 02/3/08 Page No. 42 43 and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.'' It is further held that :
" Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person ( suspect) either SC No. 02/3/08 Page No. 43 44 before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verify strengthen the prosecution as well. ''
48 So far the present case is concerned, as per the prosecution notice U/s 50 NDPS Act was served upon the accused with the help of interpretor Borhan Ahmadi as the accused had language problem and was unable to understand the Hindi and English language. PW 5 testified in his chief examination that panch witness Borhan Ahmadi who was working with Kabul Airlines and knew the language of Dari and Farsi which is usually SC No. 02/3/08 Page No. 44 45 spoken in Afghanistan interpreted the contents of both the notices to the accused. The interpretor had explained to the accused that the search of his person and the baggage was to be conducted and he had an option to get his person and baggage searched in the presence of a Magistrate or a Gazetted Officer. The interpretor told him that accused had no objection if his person or his baggage was searched by a custom officer. An endorsement was made on both notices from point A to A on both the notices to the following effect :
" Read over and explained in vernaculars to Mr Haji Mohd. who consented for search by any custom officer and signed in token of acceptance."
To the similar effect is the statement of PW 8 Amit Kohli, panch witness who stated that notice U/s 50 NDPS Act and U/s. 102 Customs Act was served upon SC No. 02/3/08 Page No. 45 46 the accused through Borhan Ahmadi. However, panch witness Borhan Ahmadi has not been examined in the present case on the ground that he is not residing at the given address. It is the case of the prosecution that the accused was knowing only Dari and Farsi language and that accused had not written anything on any document i e on notice U/s 50 NDPS Act, notice U/s 102 Customs Act, panchnama and statement U/s 67 NDPS in Dari or Farsi language. No reason has been assigned by PW 5 as to why the consent of the accused for his search by the custom officer was not taken on the notice U/s 50 NDPS Act in his own handwriting which could have been lateron translated to the court by the interpretor. In the absence of examination of Borhan Ahmadi, particularly, when PW 5 himself is not aware of the Afghani language, as such it has not been proved on record in any manner that the accused was explained the contents of the notices U/s 50 NDPS Act and even U/s 102 Customs Act properly. SC No. 02/3/08 Page No. 46 47 The endorsement of Borhan Ahmadi made on the notice Ex. PW 5/C from point A to A that "Read over and explained in vernaculars to Mr Haji Mohd who consented for search by any custom officer and signed in token of acceptance." itself shows that the accused had not been explained in any manner that it was his legal right to get his person or baggage searched in the presence of a Gazetted officer or a Magistrate, as in the notice U/s 50 NDPS Act it is not mentioned at all that it was the legal right of the accused. Even the statement of Borham Ahmadi U/s 67 NDPS Act Ex. PW 5/L does not find mention that while serving notice U/s 50 NDPS Act the accused was informed that it was his legal right to get his search conducted in the presence of a Magistrate or a Gazetted office. It is observed that if the notice was served upon the accused by Borhan Ahmadi at the instance of PW 5, then the reply of the notice should have been taken from the accused in his own handwriting which SC No. 02/3/08 Page No. 47 48 could have cleared all the doubts about the manner in which it was served and whether the accused had understood the contents and the purpose of Sec. 50 of the Act and whether he had consented for his search to be conducted by the officer of customs or before a Magistrate or any other the Gazetted Officer.
49 The argument of the Ld. SPP for Custom that the notice U/s 50 NDPS Act was not required to be served upon accused in the present case as recovery was effected from his hand bag and nor from his person, is of no consequence, as before the recovery was effected from his checked in baggage and at the time when notice was served upon accused, it was not known to PW 5 that recovery would not be effected from his person but from his checked in baggage only and this view is supported by the judgment of Hon'ble Apex Court in the case of "Union of India Vs. Shah Alam & Anrs reported in 2009 (3) RCR ( Criminal).
SC No. 02/3/08 Page No. 48 49 50 Besides, it is seen that notice Ex. PW 5/C served upon the accused was not in compliance of the provisions of Sec. 50 NDPS Act as it was partial notice as the accused had been offered to be searched in the presence of a Gazetted officer of customs, besides a Magistrate. The purpose behind Sec. 50(1) NDPS Act is to avoid criticism of arbitrary and high handed action against authorised officer. It has to be borne in mind that a Gazetted officer belonging to the department which is effecting a seizure may have bias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus associating a Gazetted Officer with the raiding party makes such officer impliedly interested in the success of the raid.
51 So far the present case is concerned, the perusal of the notice U/s 50 NDPS Act that the option was given to the accused that if he so desires his SC No. 02/3/08 Page No. 49 50 baggage and personal search could be conducted before a Magistrate or a Gazetted Officer of a Customs. 52 In the case of Kuldeep Singh Vs NCB reported in 2000(1) JCC Delhi page 74, it has been held by our own High Court that the Gazetted Officer belonging to the department which is effecting a seizure may have bias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted officer belonging to the other department. Thus in the present case the offer given to the accused to be searched by a Magistrate or by a Gazetted officer of the custom was partial offer as the accused was not given an option for his baggage and personal search to be conducted in the presence of a Gazetted Officer belonging to the other department.
53 In view of the above discussion in my opinion, neither the notice Ex. PW 5/C was proper notice nor it was served properly upon the accused and the SC No. 02/3/08 Page No. 50 51 accused was not informed of his rights to be searched in the presence of a Gazetted officer or a Magistrate which is mandatory. At the same time, non examination of Borhan Ahmadi is fatal to the prosecution, as he was the best witness to prove as to what was explained by him on behalf of the complainant, to the accused while serving notice U/s 50 NDPS Act. Mere examination of PW 5 and his testimony to the effect that notice was served through Borhan Ahmadi upon the accused by itself is not sufficient. It is held by the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja Vs State of Gujarat that the provisions of Sec. 50 NDPS Act are mandatory and noncompliance renders the recovery of illicit article suspect. Thus the non compliance of these provisions is viewed seriously and adverse inference is drawn against the prosecution, particularly, when the accused has denied that he was served any such notice and it has created doubt with regard to the truthfulness of the SC No. 02/3/08 Page No. 51 52 prosecution witness. In these circumstances, where the accused has not been served with proper notice U/s 50 NDPS Act and it has created doubt in the mind of the court as to why the accused had not been given an option to be searched in the presence of a Gazetted Officer besides the Magistrate and why the accused was given an option to be searched in the presence of a Gazetted officer of Custom department who would have been interested in the success of the case and at the same time the evidence is lacking on record that the accused had been explained properly his rights U/s 50 NDPS Act and notice was served properly upon him, in view of such circumstances, the recovery of Heroin from the possession of the accused stands vitiated in view of the judgment of "Vijaysinh Chandubha Jadeja Vs State of Gujarat of Hon'ble Apex Court reported in 2010(4) LRC 225 (SC).
54 The prosecution is also relying upon the statement of the accused recorded U/s 67 NDPS Act SC No. 02/3/08 Page No. 52 53 which is Ex.PW 5/G on record. It is settled law that the confessional statement of the accused is a weak type of evidence and conviction should not be based on it and it needs to be corroborated by independent evidence. It is held by the Hon'ble Apex Court in the case of Union of India Vs Bal Mukand & Ors reported in 2009 (2) Crimes 171 SC that conviction should not be based merely on the basis of statement made U/s 67 of the Act without any independent corroboration, particularly, in view of the fact that such statement has been retracted.
55 It is further held that confession must be voluntary and that the statement made during interrogation while the accused is in custody, cannot be said to have been made voluntarily which satisfies the conditions precedent laid down U/s 67 of the Act. In the backdrop of the aforesaid events, we find it difficult to accept that such statement had been made by the accused though they had not been put under arrest. As the SC No. 02/3/08 Page No. 53 54 authorities under the act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken.
56 It is further held by the Apex Court in the case of D K Basu Vs State of West Bengal reported in (1997 ) l SCC 416 that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his rights to silence. 57 The Hon'ble Apex court in the case of Union of India Vs Balmukand & Ors reported in 2009(2) Crimes 171 SC held that:
" A confession must be voluntary. A statement made during interrogation cannot be construed as confession. Circumstances attendant to making of such statements should be taken into consideration.
Conviction should not be based merely on the SC No. 02/3/08 Page No. 54 55 basis of a statement made U/s 67 of the Act without any independent corroboration, particularly in view of the fact that such statements have been retracted."
58 It is argued by the defence counsel that accused did not make any statement U/s. 67 NDPS Act and it was fabricated by PW 5 through so called Borhan Ahmadi who has not been examined by the prosecution. He has drawn my attention towards the statement U/s 67 NDPS Act of Borhan Ahmadi Ex. PW 5/L dated 12.3.08 wherein there is no mention at all that he had recorded the statement of the accused after conversing with him. It is further noted that PW 5 in his cross examination stated that he had given questions to Borhan Ahmadi which were put by him to the accused and then he had reduced into writing his reply in English language. However, it is seen that there is no such framed questions filed on record which were put to the accused by Borhan SC No. 02/3/08 Page No. 55 56 Ahmadi, in response to which he recorded the statement of accused U/s 67 NDPS Act Except the bald testimony of PW5, there is no evidence on record that the statement Ex. PW 5/E was made by the accused through Borhan Ahmadi, as Borhan Ahmadi has not been examined as a prosecution witness to prove as to what statement was made by the accused to him in his own language which he translated in English language. It is seen that there is no statement of the accused recorded by Borhan Ahmadi in the language of the accused so as to say that the English translated version of the accused was correct. It would have been more appropriate if the statement of the accused had been recorded in his own language and thereafter the translation of the same in English language was filed on record. There is also no evidence on record that the accused was warned before recording his alleged statement that he had a right to maintain a silence which was his constitutional right. Here it is taken note of that SC No. 02/3/08 Page No. 56 57 the statement of Borhan Ahmadi himself was recorded on 12.3.08 ie after more than five months of the alleged incident and there is no explanation on behalf of the prosecution as to why his statement was recorded with inordinate delay and at the same time nonmentioning in his statement about fact that he had recorded the statement of accused U/s 67 NDPS act after he was given questions by PW 5 to be put to the accused, leads to the inference that no such statement was made by the accused. In such circumstances, it becomes immaterial whether the accused retracted from his such statement or not. At the same time the admission of the accused in the said statement about recovery of contraband from his possession becomes immaterial, particularly, in view of the fact that it is admitted by the prosecution that the accused did not know any other language except Dari and Farsi language and the said statement is in English language and it is not proved on record that it was made by SC No. 02/3/08 Page No. 57 58 the accused. Similarly, there is no evidence on record except the bald testimony of PW 5 that the contents of panchnama Ex. PW 5/F were read over to the accused in his own language by Borhan Ahmadi for the reasons that Borhan Ahmadi had not appeared in the witness box.
59 So far the identification of the case property is concerned, a pulanda bearing Mark A and DR No 03932 was produced in the court, whereon a paper slip was affixed with the help of a jute string tied to the cloth pulanda bearing a lac seal on the paper slip but the impression of the same was not legible. Similarly, there were five other lac seals on the said pulanda on the stitched portion but they were also not clearly legible. At he same time the office copy of the Test Memo Ex PW 1/D1 was perused by the court to verify the facsimile impression of the seal thereon but it was observed that there was no facsimile impression on the same but the same was found SC No. 02/3/08 Page No. 58 59 bearing a lac seal over which the brown colour adhesive tape was affixed and when the witness was asked to explain as to why the said adhesive tape was affixed by him, he stated that it was affixed to protect the seal. However, it is observed that for want of facsimile impression of the seal on the Test Memo and the lac seal affixed on the Test Memo being covered with brown colour tape was not legible and thus it could not even have been read by the lab. assistant CRCL or even the chemical examiner for comparing the same with the seals affixed on the sample parcels Mark A l to D 1. I have perused the Test Report Ex PW 4/A which is at the back of the Test Memo which was received in the CRCL and even the same is not bearing any facsimile impression of the seals affixed on the sample envelopes. There appears to be sign of affixing of lac seal but there is no lac seal on the same with which it could be compared that the samples received in the CRCL were bearing the same seal as on the Test SC No. 02/3/08 Page No. 59 60 Memo and it is astonishing that in the report of the CRCL it is mentioned that the each sample packet was sealed with four red lac seals and impression of each seal affixed on each of the four sample packets tallies with the facsimile of seal as given on the Test Memo, whereas infact there is no facsimile of the seal on the Test Memo. There is no explanation on behalf of the prosecution that in such circumstances as to with which seal impression the seals which were found on sample envelopes were compared by the officials or the chemical examiner in the CRCL. It appears that observation to this effect in the Test Report was made in routine without application of mind and comparison of the seals. This fact becomes relevant in view of the testimony of PW 5 that the Test Memos were not prepared on the day when the samples were drawn but on 10.10.2007 and it is brought to the notice of the court by the defence counsel that PW 5 in his cross examination categorically testified that he had SC No. 02/3/08 Page No. 60 61 returned the seal of SDO(A) at 4/5am on 9.10.07 and thereafter he did not obtain the custom seal No. 6. At the same time he testified that Test Memo was prepared by him on 10.10.07. If the seal had already been returned to the SDO(A) on 9.10.07 at 4/5 am then how the Test Memos were prepared on 10.10.07 without custom seal No. 6. There is no evidence on record that on 10.10.2007 PW 5 had withdrawn custom seal No. 6 from the concerned SDO(A) and after preparing the Test Memo had returned the same and at the same time there is no evidence on record that the Test Memos were bearing the customs seal No. 6 as there is no facsimile impression of the seal on the Test Memo and the lac seal which as per the testimony of PW 5 was affixed thereon was covered with the brown colour tape and when the tape was removed the seal was also broken and as such it could not be noticed which seal was affixed on Ex PW 1/D1 which was the office copy and similarly the Test Memo on which SC No. 02/3/08 Page No. 61 62 the report Ex PW 4/A was prepared in the CRCL, is also not bearing the facsimile of the seal and though the impression of lac seal is there but the seal is missing. It is nowhere observed in the report Ex PW 4/A that the Test Memos received in the CRCL were bearing the lac seals and found to be the same as on the samples A 1 to D1. 60 It is observed that in the present case the prosecution has also not produced any evidence on record that samples Mark A1 to D1 were at any time withdrawn by PW 5 from the custody of SDO(A) for deposit in the CRCL. The only witness examined by the prosecution to this effect is PW 3 Kishan Chand Supdt., who was working as SDO(A) on 8.10.07 from 9pm to 9am on 9.10.07. He testified that vide application Ex. PW 3/A moved by PW 5 he had issued custom seal No. 6 to him. That on 9.10.07 the complainant deposited the packets sealed with custom seal No. 6 vide five D.Rs bearing No. 03932 to 03936, all dated 09.10.07. However, SC No. 02/3/08 Page No. 62 63 the prosecution failed to prove any entry made in the SDO(A) register to the effect that the representative samples drawn from the recovered substance, the remaining case property and the other articles were deposited in the custody of PW 3 by PW 5 on 9.10.2007. Besides, PW 3 Sh Kishan Chand Supdt., no other SDO(A) or any valuable godown incharge has been examined to prove the safe custody of the case property and the representative samples till the case property was produced in the court and the samples Mark A1 to D1 were sent to the CRCL. Neither any witness has been examined nor any entry in the SDO(A) register or valuable godown register has been proved on record in this regard. Even any entry in any such register regarding the drawal of samples Mark A1 to D1 by PW 5 on 10.10.07 for deposit in the CRCL has not been proved. Thus a vital link in the chain of the prosecution case is missing and it creates a doubt that the samples which were deposited in the SC No. 02/3/08 Page No. 63 64 CRCL by PW 5 were the true representative of the recovered substance and there was no tampering. 61 There is also no evidence on record that the accused was read over the panchnama Ex. PW 5/F or was explained the grounds of his arrest since Borhan Ahmadi has not been examined by the prosecution who as per the testimony of PW 5 Sh Raskesh Kumar Gupta had explained the same to the accused.
62 In view of the facts and circumstances of the case the mandatory safeguards provided to the accused against his false implication have not been observed. The link in the chain of the prosecution evidence is missing at every nook and corner and as such the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. Hence he is acquitted of the charges U/s. 21, 23 r/w Sec. 28 of the NDPS Act, 1985. 63 In view of provisions of Section 437A Cr PC, accused Haji Mohammad is directed to furnish the SC No. 02/3/08 Page No. 64 65 personal bond in the sum of Rs. 50,000/ with one surety in the like amount. Since the accused has failed to comply with the provisions of Section U/s 437A Cr. PC, direction be issued to the Jail Superintendent not to release the accused till further orders.
File be consigned to the Record Room.
Announced in Open Court (Ravinder Kaur) Today. ASJ/Dwarka/ND Dated: 26.3.2011 SC No 02/3/08 26.03.2011
Present: Sh P C Aggarwal, SPP for customs.
Accused from J/C. Vide my separate judgment dictated and announced in the open court today, accused Haji Mohd. is acquitted of the charges U/s 21 & 23 r/w Sec. 28 NDPS SC No. 02/3/08 Page No. 65 66 Act. The judgment shall be signed after correction.
In view of provisions of Section 437A Cr PC, accused Hazji Mohd is directed to furnish the personal bond in the sum of Rs. 50,000/ with one surety in the like amount. Since the accused has failed to comply with the provisions of Section U/s 437A Cr PC, direction be issued to the Jail Superintendent not to release the accused till further orders.
File be consigned to the Record Room.
(Ravinder Kaur) ASJ/Dwarka/ND 26.3.2011 SC No. 02/3/08 Page No. 66