Delhi District Court
Dri vs Ms. Luikham Fennylang on 22 October, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURTS COMPLEX, NEW DELHI
DRI Versus Ms. Luikham Fennylang
D/o Sh. Sirang Luikham
R/o C/o Laisom Rana Mohan
Singh, Laisom Leirak,
Keishamthong, Imphal
(West), Manipur.
SC No. : 01A/06
U/S : 21 & 23 NDPS Act.
Date of institution : 02.01.2006
Date of reserving judgment : 20.10.2011
Date of pronouncement of judgment : 22.10.2011
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (DRI) through Sh. S.D. Sharma, Intelligence Officer against the accused Ms. Luikham Fennylang for offences punishable U/Ss 21 & 23 of the NDPS Act, 1985. In brief, the case of the DRI is that on 16.07.2005 at about 01.00 pm an intelligence was received by Sh. Madan Singh, Intelligence Officer (IO), DRI Headquarters, New Delhi to the effect that a lady passanger named Luikham Fennylang will be travelling from Delhi to Mumbai in Jet Airways Flight No. 9W 0334, which was scheduled to depart at 04.40 pm on that day and she will be carrying some narcotic drugs in her baggage.
SC No. 01A/06 DRI Vs. Luikham Fennylang 2 The above information was reduced into writing and was put up before his senior officer by Sh. Madan Singh, IO and the complainant Sh. S.D. Sharma, IO was directed to take the appropriate action on the above secret information.
2. It is alleged in the complaint that the complainant alongwith some other officers of DRI, including a lady officer, had reached the departure area of the domestic airport Terminal 1B, New Delhi and had also joined two witnesses there and the witnesses were informed about the contents of the above secret information. The accused was identified by the members of the raiding team and she was intercepted when she had already checked-in her baggage, obtained boarding card and had proceeded to the security lounge of the airport after completion of her security check. The accused was asked if she was carrying any narcotic drugs in her baggage to which she had replied in negative. On being asked she had produced her Jet Airways Ticket No. 589 42752 39442 5 and boarding card which was found to be affixed with a counterfoil of checked-in baggage No. 0589 9W 31-85-51.
3. It is also alleged in the complaint that thereafter the accused was escorted to the room of the Asssitant Commandent CISF, Terminal 1 of the above said airport and at that time the accused was carrying one pink colour cotton shoulder bag and one black colour soft strolley bag, besides the baggage which had already been checked-in by her. The witnesses were also brought to the above said room and on SC No. 01A/06 DRI Vs. Luikham Fennylang 3 being requested they had agreed to witness the search proceedings. The accused was introduced with the witnesses and then in their presence the checked-in baggage of the accused was also brought to the above said room through the Manager of the Jet Airways and the said baggage was found to be a big black colour zipper bag having khaki stripes and bearing the brand name ' H ang Tang' . The above bag was also found to be affixed with Tag No. 0589 9W 318551, which was identical to the tag number found affixed on the boarding card of the accused.
4. It is also alleged in the complaint that then in the presence of the public witnesses the accused was again asked if she was carrying any narcotic drugs in her baggage and she had again replied in negative. The accused was then told about the above secret information and also that the search of her person and the baggage was to be conducted by them and she was also given an option in writing for the above search of her person and baggage before a Magistrate or a Gazetted Officer, as required U/S 50 of the NDPS Act, but she had given her option in writing that the same can be conducted by any officer of the DRI. The search of the ' person ' of the accused was conducted by the above lady officer of the DRI, but nothing incriminating was found and then the search of the baggage of the accused was conducted by the complainant and during the search of her above pink colour cotton shoulder bag, one Indian passport in the name of the accused, having multiple entry visa for Nigeria, Ethiopian Airways flight tickets for flight from Mumbai to SC No. 01A/06 DRI Vs. Luikham Fennylang 4 Addis Ababa of Flight No. ET 661 on 16.07.2005, from Addis Ababa to Lagos by Flight No. ET 905 on 17.07.2005 and open ticket from Lagos to Addis Ababa and also an open ticket from Addis Ababa to Mumbai were found. On being asked, the accused had stated that after reaching Mumbai she intended to perform further journeys by those tickets. Nothing incriminating was recovered from the above black soft strolley bag carried by the accused which was in unlocked condition. However, the big black colour zipper bag with khaki stripes, which was the checked-in baggage of the accused, was found secured with a brass padlock bearing Jet Airways security check sticker No. D443490 and the same was opened with the help of the keys of the lock provided by the accused and it was found to contain various food stuff consisting of tinned and company packed ready to eat/ready to cook food articles.
5. The contents of the said bag were emptied and each packet of food stuffs was opened and examined in detail and during such examination certain packets of food stuffs were found to contain items as indicated/printed on its packing and these foodstuffs have been detailed in Annexure I of the panchnama. However, besides the above, 6 tin packs having printed stickers declaring their contents to be ' H unt ' s Tomatoes Whole' said to be manufactured by ' C an Agra Foods ' and having the declared weight of 794 gms each and 4 tins having printed stickers declaring contents thereof to be ' Panda Brand Oyster Sauce' stated to be packed by ' L ee Kem Kee Food Ltd., Hongkong' and weighing 2268 gms each SC No. 01A/06 DRI Vs. Luikham Fennylang 5 were found to contain some off white coloured powdery substance packed in polythene bags and a sharp pungent smell was emanating therefrom. The above 6 tin of ' H unt ' s Tomatoes Whole' were marked as X1 to X6 and the 4 tins of ' Panda Brand Oyster Sauce' were marked as Y1 to Y4 for identification purposes and a small quantity of contents from each of the above 10 tins was tested with a field narcotic kit and the contents of all the 10 tins had tested positive for heroin. The gross weight of the above 10 tins was found to be 12.890 kg and the net weight of their contents was found to be 11.224 kg. The complainant had then seized all the above contraband substance, the 10 tins and the polythene bags used for packing of the contraband substance, the food stuff mentioned in Annexure I of the panchnama, the above black colour zipper bag in which the above food stuff was contained, alongwith its lock and keys, for violations of the provisions of the NDPS Act and also the above flight tickets, boarding pass and the baggage tag affixed on the checked-in baggage.
6. It is further alleged in the complaint that the complainant had taken out two representative samples of 5 gms each from all the above 10 tins and the same were kept in small zip locked polythene packs. The samples were marked as X1A, X1B, X2A, X2B, X3A, X3B, X4A, X4B, X5A, X5B, X6A, X6B and Y1A, Y1B, Y2A, Y2B, Y3A, Y3B and Y4A, Y4B. The above 20 polythene bags containing the samples were then further kept into separate brown coloured paper envelopes and were sealed with the seal of DRI No. 10 over and above a SC No. 01A/06 DRI Vs. Luikham Fennylang 6 paper slip bearing the dated signatures of the witnesses, the accused and the complainant. The remaining contraband substance of the above 10 packets was put in the same polythene bags and the tins and the same were further kept in yellow coloured paper envelopes and the same were also similarly sealed. These paper envelopes containing the remaining case property were then kept in the above black colour zipper bag and the bag, alongwith its lock and keys, was further kept in a steel trunk which was further wrapped with a white colour cloth, stitched and sealed in the same manner. The other food stuff detailed in Annexure I to the panchnama was kept in a separate steel trunk and a separate cloth pullanda thereof was also prepared and sealed in the same manner. Prior to that, the food stuff contained in the tins were secured with cello tapes affixed thereon. A detailed panchnama with regard to all the above proceedings was also prepared by the complainant and the same was signed by the witnesses, the accused, the complainant as well as the female member of the raiding team namely Ms. Kanwaljit Bakshi, IO and a facsimile of the above DRI Seal No. 10 was affixed thereon. The above seal of DRI was obtained by the complainant from Sh. S.K. Sharma, SIO on 16.07.2005 and returned on the next day after completion of the seizure proceedings.
7. It is also a part of the complaint that on 17.07.2005 the accused had also tendered her voluntary statement U/S 67 of the NDPS Act before the complainant and therein she had admitted the above said recovery and seizure SC No. 01A/06 DRI Vs. Luikham Fennylang 7 of the contraband substance from her baggage and she had also stated, inter-alia, that she had been teaching in Imphal and then shifted to Manipur and to Delhi and presently she was residing at the address of JG-3, 159-D Vikas Puri, which was being shared with two of her flatmates. She had also stated that she visited Nigeria four times and her first visit to Nigeria was during June 2004 for three days, next visit in March 2005 for three days, third visit in April 2005 for three days and the last visit in May 2005 for just one day and all the above said visits were made to Lagos. She had also stated that her first visit to Nigeria was undertaken alongwith her cousin sister Grace @ Awon, who invited her to accompany her and had also borne all the expenses of her above visit, and during that visit she was introduced to a Nigerian called Steve, whom her cousin Grace had claimed to be her husband. She had also disclosed that in the third week of February 2005 she was again contacted by her cousin Grace who called her to the place of a Nigerian known as Gudman, also known by other name of Angie or Africa, who was staying in a flat somewhere near PVR Sapna, East of Kailash, New Delhi and Grace had introduced Gudman as a cousin of Steve. She had also stated in her above statement that Grace had informed her that Gudman was in the business of sending goods to Lagos in Nigeria and the same had a good profit margin and both Gudman and Grace had proposed that if she could carry some goods for them as her baggage to Lagos, they would pay her a good amount apart from meeting her transport and accommodation charges and she had agreed to that proposal.
SC No. 01A/06 DRI Vs. Luikham Fennylang 8
8. It was also disclosed by her in her above statement that she was again contacted by Gudman in February, 2005 for obtaining her passport for getting her a visa to Nigeria and also for arranging her tickets and she had handed over the same to him and she was also told that she would be handed over back her passport and visa, flight tickets as well as the baggage containing the goods to be sent by him to Lagos on the day of her journey itself. She had also stated that on 05.03.2005 she was asked by Gudman to reach his house and from there he had accompanied her in a taxi and on the way he had handed over to her the tickets and the baggage with instructions that it may be delivered to Steve at Lagos and she had delivered the same to Steve accordingly at the airport of Lagos and had returned back to India after staying there in a Hotel for three days, the arrangements of which was made by Steve. She was also paid US $1000 for the same by Gudman on her return to India.
8. It was further disclosed by her in her above statement that she had made similar trips to Lagos in April and May, 2005 for delivery of the luggage to Steve and the only difference was that she was paid US $1500 for each of the above trip. She had further stated that her present trip was also undertaken by her for Gudman and she was to deliver the above black colour zipper bag to Steve at Lagos for a consideration of US $1500 to be paid to her by the Gudman, but she was intercepted by the DRI Officers before that and the above Heroin was also recovered from the above baggage. On being further questioned by the complainant, SC No. 01A/06 DRI Vs. Luikham Fennylang 9 she had also stated that she was informed by Gudman and Grace that the goods which she was carrying for them was gold and she was also ensured that it was not illegal or risky and she had agreed for the same for the sake of easy money which she was getting. She had further stated that at no stage she thought of verifying or examining the baggage as she believed the words of Gudman and Grace.
9. It is also mentioned in the complaint that subsequently on 17.07.2005 itself the accused had also voluntarily surrendered her passport before the IO and she was arrested for commission of the offences U/Ss 21 & 23 of the NDPS Act. The complainant had also sent a report U/s 57 of the NDPS Act about the seizure of the above contraband substance and her arrest to his senior officer on 18.07.2005. On 18.07.2005 the complainant had also taken the above 10 sealed sample packets to CRCL and had deposited the same there and he had also deposited the parcels of the remaining case property in the Valuable Godown on the same day. He had also subsequently recorded statements of some other witnesses U/S 67 of the NDPS Act on different dates, including the statements of the officials of the concerned airlines regarding the issuance of the above flight tickets recovered from the accused and also the statements of the two panch witnesses Sh. Ravinder Kumar and Sh. Umesh Kumar regarding their participation in the panchnama proceedings. In the CRCL report dated 11.08.2005 of the examination of the above samples, diacetylmorphine (Heroin) was found in the above samples and ultimately a complaint for commission SC No. 01A/06 DRI Vs. Luikham Fennylang 10 of the above said offences was filed in this court against the accused.
10. The complaint was filed in the court on 02.01.2006 and cognizance thereof was taken on the same day. A prima facie case for offences U/Ss 21(c) and 23 read with Section 28 of the NDPS Act was made out against the accused and hence charges for the said offences were also framed against her on 12.05.2006.
11. Total 17 witnesses have been examined by the DRI on record. The names of the above witnesses and the purpose of their examination is being stated herein below :-
(i) PW1 Sh. Madan Singh is an Intelligence Officer of DRI and he is the person who had received the above secret information and had reduced the same into writing as Ex.
PW1/A.
(ii) PW2 Sh. Vinod Kumar was posted as Deputy Director in the DRI Office on the relevant day when the above secret information Ex. PW1/A was put up before him. He had called the complainant Sh. S.D. Sharma, IO and after discussing the matter he had made his endorsement on Ex. PW1/A authorising the complainant to take further necessary action in the matter. Subsequently he had also countersigned the Inventory of goods/Deposit Memo Ex. PW2/A of the case property.
SC No. 01A/06 DRI Vs. Luikham Fennylang
11
(iii) PW3 Sh. R.P. Meena, Assistant Chemical Examiner,
CRCL had received the 10 sealed sample packets of this case on 18.07.2005, on the instructions of his Senior Officer Sh. M.D. Mondal, vide acknowledgment receipt Ex. PW3/A. He has also stated that the seals affixed on the sample packets were intact and as per the test memo brought alongwith the samples. He has also stated that on 09.08.2005 the above sample packets were taken out of the strong room and were examined by him under the supervision of his Senior Officer Sh. D.K. Beri and the report of examination dated 11.08.2005 is Ex. PW3/C. He has also proved on record the analysis report of the samples given in the test memo as Ex. PW3/B and has further identified the above sample packets and the remnants of the samples.
(iv) PW4 Sh. S.D. Sharma, Intelligence Officer, is the main Investigating Officer of this case and he has broadly deposed on the above lines of the prosecution story and has identified the accused as well as, the above said baggage and tickets etc. of the accused, the remaining case property and its packing etc., as well as the remnants of the samples sent to the CRCL for testing. He has also brought or proved on record various documents connected with the investigation of this case and has also specifically deposed about the statements U/s 67 of the NDPS Act, of the accused as well as of the witnesses, recorded by him. The relevant documents proved by him will be discussed subsequently.
SC No. 01A/06 DRI Vs. Luikham Fennylang
12
(v) PW5 Sh. R.S. Kashyap was posted as Inspector,
Valuable Godown, Customs, New Delhi on 18.07.2005 when the two sealed parcels of the case property were deposited with him by the complainant/IO Sh. S.D. Sharma vide Inventory / Deposit Memo Ex .PW2/A.
(vi) PW6 Sh. S.K. Sharma was posted as Senior Intelligence Officer of the DRI at the relvant time and he had issued the above DRI seal No. 10 used in this case to the IO/complainant on 16.07.2005 and it was returned to him on the next day vide entry Ex. PW4/I of the Seal Movement Register. On 18.07.2005 he had also sent telegraph Ex. PW6/A to a relative of the accused about her arrest in this case and on the same day he had also seen the report U/S 57 of the NDPS Act Ex. PW4/P sent to him by the IO/complainant. He had also sent the sample parcels to CRCL on 18.07.2005 vide Forwarding Letter Ex. PW4/Q.
(vii) PW7 Sh. Jyothiman Dethan was only deputed for verifying the above rental address of the accused in Vikaspuri and in response to the summons U/s 67 of the NDPS Act Ex. PW7/A, one Awanshi Ring Phami residing in the above said premises had tendered his statement Ex. PW7/B and some documents Ex. PW7/C & PW7/D before him intimating PW7 that though the above witness was known to the accused, but the accused had never resided with him in the said premises.
(viii) PW8 Sh. Loveleen Malik is an official of M/s Apex
SC No. 01A/06 DRI Vs. Luikham Fennylang
13
Travel & Tours, F-39, East of Kailash, New Delhi, which had issued the above flight ticket to the accused dated 16.07.2005 for her flight from Delhi to Mumbai of Jet Airways. He was authorised by his employer vide authority letter Ex. PW8/A and has deposed about his statement U/S 67 of the NDPS Act Ex. PW4/T1 already made by him before the complainant, in response to summons Ex. PW4/S2 issued in the name of the above company. He has also produced on record some documents as Ex. PW8/B1 to PW8/B13 with regard to the issuance of the above said ticket.
(ix) PW9 Sh. R.K. Aggarwal, Assistant Director of DRI, had only conducted some inquiries from different cell phone operators regarding some mobile numbers, which had come on record during investigation, and had received some information in response to his request letters, but has not been able to tell the above said mobile numbers. Few documents have come on record in his statement as Ex. PW9/A to PW9/E, but the same are not relevant for the disposal of the case.
(x) PW10 Ms. Kanwaljit Bakshi, Intelligence Officer, is the female member of the raiding team of DRI which had apprehended the accused and had recovered the above contraband substance from her above baggage. She has also broadly deposed on the above lines of the prosecution story and has deposed about some documents prepared at the spot.
SC No. 01A/06 DRI Vs. Luikham Fennylang
14
(xi) PW11 Sh. Virender Kumar is the Manager of Hotel
Gaiety Palace, Kailash Colony, New Delhi and he had also tendered some documents Ex. PW11/A-1 to PW11/A-4 with his statement U/s 67 of the NDPS Act Ex. PW4/T-3, in response to the summons Ex. PW4/S-6 issued by the complainant, with regard to the stay of the foreigners in their Hotel. He was examined during investigation as it had come to the knowledge of the complainant/IO that a foreigner staying in the above Hotel had booked the flight ticket of the accused for Delhi to Mumbai from M/s Apex Travel & Tours, as per the particulars recorded in their office.
(xii) PW12 Sh. Ravinder Singh and PW13 Sh. Umesh Kumar were working in the Security Staff of the Jet Airways on 16.07.2005 and they both are the two panch witnesses joined by the IO during the investigation. They both have also deposed about the apprehension of the accused from the above airport and recovery and seizure etc. of the contraband substance and also some documents prepared in connection with the same.
(xiii) PW14 Sh Madan Mehta is the father of one Sh. Sahil Mehta, in whose name one sim of mobile number 9811276805, which was used in the purchase of the above tickets, was purchased. In response to the summons Ex. PW4/S7 issued in the name of his son, he had tendered a statement U/S 67 of the NDPS Act, Ex. PW4/T4 before the complainant stating that the above does not belong to his son and his son was not SC No. 01A/06 DRI Vs. Luikham Fennylang 15 even in India when the above sim was purchased and activated.
(xiv) PW15 Sh. D.K. Beri is the Chemical Examiner of CRCL under whose supervision the above 10 samples of this case were examined vide the test report Ex. PW3/C.
(xv) PW16 Sh. R.K. Singh, Nodel Officer of M/s Bharti Airtel has proved on record a letter dated 30.08.2005 Ex. PW9/A sent by his predecessor to the officer of DRI providing some details Ex. PW9/D regarding some mobile number 9815067274 of their company in Punjab, which number was used in the booking of the above ticket of the accused from Delhi to Mumbai.
(xvi) PW17 Sh. Israr Babu is a Nodel Officer of M/s Vodaphone Essr Mobile Service Ltd. and he has brought on record an attested application form of one mobile no. 9811276805 of their company in the name of one Sahil Mehta as Ex. PW17/A and the faxed details of the above mobile number already sent to the DRI during investigation have been brought on record as Ex. PW9/E.
12. Besides the above, some documents of the prosecution have also been admitted on record by Ld. Defence Counsel as Ex. X1, X2, X3 and X4, which pertained to the issuance of the above Ethiopian Airlines Flight Tickets found in possession of the accused.
SC No. 01A/06 DRI Vs. Luikham Fennylang 16
13. After the conclusion of the prosecution evidence, the entire incriminating evidence brought on record was put to the accused. The accused has specifically admitted that she was apprehended on the above said date and time from the security lounge of the above airport and has also admitted that she was asked by the complainant/IO if she was carrying any narcotic drugs on her person or in her baggage and she had denied the same. She has stated that no notice U/s 50 of the NDPS Act was given to her, as stated above, and has further admitted that thereafter she was taken to some room and she had produced her tickets and baggage before the complainant. She has also admitted that the above food stuff tins and packings were recovered from the above checked in baggage and out of the above food stuffs, 6 tins were having stickers of ' H unt ' s Tomatos' and 4 tins were having stickers of ' O yster Sauce' , but she has expressed her ignorance about the presence or recovery of the above contraband substance recovered from the above tins while saying that the same were not opened in her presence. She has also admitted, inter alia, the making of a voluntary statement U/s 67 of the NDPS Act Ex. PW4/K dated 17.07.2005, by her before the complainant. However, she has denied some other incriminating evidence brought on record either for want of knowledge or being incorrect. However, no defence evidence was led by her on record.
14. I have heard the arguments advanced by and the written submissions filed on record by Sh. Satish Aggarwal, Ld. SPP for DRI, assisted by Sh. Vikas Gautam, Advocate. I SC No. 01A/06 DRI Vs. Luikham Fennylang 17 have also heard the arguments advanced by Sh. Rahul Tyagi, Ld. Defence Counsel and have gone through the written submissions filed by him, alongwith the rebuttal submissions of the DRI and the other record of the case.
15. It has been argued by Ld. Defence Counsel that the mandatory provisions of Section 50 of the NDPS Act have not been complied with in this case by the IO/PW4 Sh. S.D. Sharma because through the alleged notice Ex. PW4/B given under the above said section to the accused, she was only conveyed that it was his option to get the search of her person and luggage conducted before a Magistrate or a Gazetted Officer and she was not informed that the same was her legal right. It is also argued that during his cross examination the IO has also admitted this fact and this fact is also not found incorporated in the above notice Ex. PW4/B. However, this argument of Ld. Defence Counsel is not relevant in the context of this case because in the instant case the recovery of the contraband substance has not been effected from the ' p erson ' of the accused but it has been effected from her bag and no such notice was legally required to be served upon or given to the accused as in such cases the provisions of Section 50 of the NDPS Act are not applicable. Reference in this regard can be made to the cases of Ajmer Singh Vs State of Haryana - 2 010 (2) SCR 785 (Crl. Appeal No. 436/09), State of H.P. Vs. Pawan Kumar - 2005 (4) SCC 350 and Madan Lal Vs State of H.P.-2003 Crl.L.J 3868.
SC No. 01A/06 DRI Vs. Luikham Fennylang
18
16. The prosecution has duly proved on record the
secret information received in this case by PW1 Sh. Madan Singh, which was recorded by him as Ex. PW1/A. It also stands established from the depositions of PW1 and PW2 Sh. Vinod Kumar, that the above information was placed before and brought to the knowledge of PW2, who had directed the complainant/PW4 Sh. S.D. Sharma to take further necessary action on the basis of the above information. The information Ex. PW1/A was recorded at about 01.00 pm on 16.07.2005 and it was placed before PW2 almost immediately after recording it as the endorsement of PW2 thereon is found to be made at 01.25 pm itself on the said date. Though it is not found specifically recorded in the above information that the search of any conveyance/vehicle or of any building or enclosed place might be required in pursuance of the said information, for seizing any document or substance for violation of the provisions of the NDPS Act, but even then the provisions of Section 42 of the said Act are found to had been complied with by the prosecution.
17. Out of the 17 witnesses examined by the prosecution on record, the statements of the IO/PW4 Sh. S.D. Sharma, PW10 Ms. Kanwaljit Bakshi, PW12 Sh. Ravinder Singh and PW13 Sh. Umesh Kumar are most relevant as they all are the witnesses of the apprehension of the accused and recovery of the alleged contraband substance from the above checked-in baggage of the accused. On appreciation of the testimonies of the above witnesses, it is observed that they all corroborate each other on almost all the material SC No. 01A/06 DRI Vs. Luikham Fennylang 19 particulars of this case leading to the apprehension of the accused and the recovery and seizure of the above said contraband substance from the above baggage of the accused. IO/PW4 and PW10 are both the members of the raiding team of the DRI officials and PW12 and PW13 are the two independent witnesses joined by the IO/PW4 at the above airport at the time of apprehension of the accused. PW12 and PW13 are both the security officials of the Jet Airways who were posted for duties at Terminal 1B of the above domestic airport from which the Jet Airways flight of the accused was to depart for Mumbai. They both have participated in the entire proceedings pertaining to the recovery and seizure etc. of the above contraband substance by the IO/PW4 and their presence at the relevant time of the said proceedings has been established from the depositions of all the above material witnesses.
18. There are consistent and corroborative depositions made by the IO/PW4 as well as PW10 that in pursuance of the above said secret information they both, alongwith the other members of the raiding team, had reached the above said terminal of the domestic airport prior to the scheduled departure time of the above flight of the accused and they both have also specifically deposed about the identification of the accused in terms of the said information. Though, during his cross examination the IO/PW4 has little bit fumbled as to how the accused was identified, but it has come on record in the statements of both the witnesses that the accused was named in the above secret information and SC No. 01A/06 DRI Vs. Luikham Fennylang 20 the IO/PW4 had even told the flight number and the scheduled departure time of the above flight of the accused in his statement and moreover when he was also having the above recorded information Ex. PW1/A with him, there could not have been any difficulty for them in identifying the accused.
19. Further, both the above witnesses have also stated that after her apprehension from the security lounge the accused was asked if she was carrying any narcotic drugs with her, to which she had replied in negative. They both have deposed about the giving of option to the accused regarding her search to be conducted in the presence of a Magistrate or a Gazetted Officer, after she was apprised about the above secret information, and then she was brought to the room of the Assistant Commandant of CISF. Though there are some contradictions in the statements of the IO/PW4, PW10 and the two public witnesses, i.e. PW12 & PW13, with regard to the stage at which the above two public witnesses were joined by the IO/PW4, but it is deposed by all of them that the above two public witnesses were present when the accused was questioned about the above contraband substance in his possession and she had replied in negative. Though, it is the admitted case of the prosecution that nothing incriminating was recovered from the search of the ' person ' and the two bags carried by the accused with her, i.e. one pink colour shoulder bag and one black colour soft trolley bag, but all the above witnesses have specifically deposed about the recalling of one checked-in bag of black SC No. 01A/06 DRI Vs. Luikham Fennylang 21 colour of the accused and the search of the same in the above room, which had led to the recovery of the above 10 tin packs, inter-alia, containing the above contraband substance therein, i.e. heroin.
20. All the above material witnesses also corroborate each other with regard to the testing and identification of the above contraband substance as such, the process of drawing of samples and the sealing of the sample packets as well as the packets/parcels of the remaining case property, including the above baggage of the accused and the packing material etc. The prosecution has also proved on record the relevant documents connected with the above recovery and seizure of the said substance, i.e. the panchnama dated 16.07.2005 Ex. PW4/C and Annexure 1 to the above panchnama containing the list and description of the other food stuff packing found in the above black colour zipper checked-in baggage of the accused. They all have also specifically deposed about the recovery and seizure of some flight tickets etc. from the accused and the flight ticket of the accused from Delhi to Mumbai of the above Jet Airways Flight has been produced and identified on record as Ex. PW4/D. The boarding pass of the accused of the above said flight has also been proved on record as Ex. PW4/E and the other flight tickets recovered from the accused have been proved and identified as Ex. PW4/F1 to PW4/F4. PW8 Sh. Loveleen Malik is a witness from the office of M/s. Apex Tours & Travels through whom the above flight ticket of the accused was booked by someone in the name of the accused and during SC No. 01A/06 DRI Vs. Luikham Fennylang 22 investigation he had appeared before the IO and tendered the documents Ex. PW8/B1 to PW8/B13 in connection with the issuance of the above said ticket vide his statements Ex. PW4/T1 and PW4/T2 & PW4/T3 in response to the summons U/S 67 of the NDPS Act Ex. PW4/S2 & PW4/S5 given by the IO/PW4. There are also specific depositions made by the above witnesses that the counterfoil of the checked-in baggage of the accused affixed on the above boarding pass of the accused was same to that affixed on the above checked-in baggage and it has also come on record during the evidence that the above checked-in baggage was recovered through the staff of the Jet Airways. The counterfoil affixed on the above boarding pass Ex. PW4/E is found to be tallying with the tag Ex. PW4/G which was found affixed on the checked-in baggage of the accused.
21. The panchnama Ex. PW4/C, the annexure to the same Ex. PW4/C1, the flight ticket Ex. PW4/D, the boarding pass Ex. PW4/E, the other flight tickets/coupons Ex. PW4/F1 to PW4/F5, the security tag of the checked-in baggage Ex. PW4/G etc. are all the documents which were prepared or seized by the IO/PW4 at the spot and are bearing the signatures of the accused, the IO/PW4 and the panch witnesses. The above documents duly corroborate the oral depositions of the above witnesses of the prosecution regarding the recovery and seizure etc. of the above contraband substance from the baggage of the accused. Hence, the prosecution has led on record sufficient satisfactory evidence to establish that the above contraband substance was recovered from the above SC No. 01A/06 DRI Vs. Luikham Fennylang 23 checked-in baggage of the accused. The IO/PW4 has also identified on record all the remaining case property, the documents seized by him at the spot and during investigation, the remnants of the samples and the second set of samples drawn from the contraband substance, the packing and sealing material thereof etc., besides identifying the accused. Even the other three witnesses have specifically identified the accused and PW10, PW12 & PW13 have also identified most of the documents and case property on record.
22. It is observed that during the cross examination of the above witnesses, nothing material could be extracted out by the Ld. Defence Counsel to disprove the above facts or to dispute the factum of recovery or seizure of the contraband substance from the above baggage of the accused. Even no suggestions were given to these witnesses that the accused was not apprehended from the above airport, the above baggage do not belong to her or that the contraband substance was not recovered from her. It is because of the reasons that the Ld. Defence Counsel has only disputed the conscious possession of the accused of the above contraband substance and has not disputed or challenged the other aspects. In her statement U/S 313 Cr.P.C. also the accused has specifically admitted her apprehension from the airport while she was about to perform the above journey between Delhi and Mumbai by the above flight of Jet Airways, the search of her above baggage by the IO/PW4 in the above room and the recovery of some food stuff tins from the above SC No. 01A/06 DRI Vs. Luikham Fennylang 24 baggage. However, she has not specifically admitted that the above baggage belonged to her and has also denied the knowledge of presence or recovery of any contraband substance from the above 10 tin packs of the above descriptions while stating that the same was not recovered in her presence. As already discussed above, it already stands established on record that the above baggage belonged to the accused and now the only question to be seen is that if the accused was aware about the presence of the above contraband substance in her baggage or she was conscious of her possession of the above substance and this is also the only material argument advanced and submission made on behalf of the accused.
23. It has been argued on behalf of the DRI that since the recovery of the above contraband substance has been effected from the baggage of the accused, she is presumed to have knowledge of the presence of the above contraband substance in terms of the provisions of Section 35 of the NDPS Act and she has also specifically admitted the above fact in her voluntary statement U/S 67 of the NDPS Act tendered before the IO/PW4. It is also argued that because of the presumption of culpable mental state contained in Section 35 of the above said Act, the onus lies on the accused to prove that she was not aware of the presence of the said substance in her baggage.
24. On the other hand, the contentions of Ld. Defence Counsel are that the evidence led by the prosecution on SC No. 01A/06 DRI Vs. Luikham Fennylang 25 record does not prove beyond reasonable doubts that she was aware or conscious of the presence of the above contraband substance in the above foodstuff tins and the required culpable mental state of the accused to possess the above contraband substance is absent in this case and hence no offence under the NDPS Act is made out against her. Hence, it is argued by him that even despite the above presumption contained in Section 35 of the NDPS Act and further even without leading any defence evidence, the accused cannot be held guilty of any offence under the said Act and the evidence led on record does not show any such culpable mental state of the accused.
Section 35 of the NDPS Act provides as under :-
Presumption of culpable mental state :- In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall resume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation :- In this section " culpable mental state " includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
SC No. 01A/06 DRI Vs. Luikham Fennylang 26
25. Now, it is to be seen if from the evidence led on record by the prosecution the above culpable mental state of the accused to possess the above contraband substance is established or not.
26. As stated above, IO/PW4, PW10, PW12 and PW13 are all the material witnesses of the prosecution story as in their presence the recovery of the above contraband substance was effected from the above baggage of the accused. IO/PW4 in his statement made in this court has specifically stated that after the accused was apprehended as per the above secret information, she was asked whether she was carrying any narcotic drug in her luggage or on her person to which she had replied in negative. He has also stated that even after the accused was taken in the above room of the CISF officer, she was again asked the same fact in the presence of the panch witnesses, but she had again replied in negative. PW10 Ms. Kanwaljit Bakshi also in her statement in this court has specifically stated that after the accused was apprehended she was asked whether she was carrying some narcotic drug with her to which she had replied in negative. She has also deposed further that after the accused was apprised about the above secret information she was again asked about the above contraband substance on her person or in her baggage, but this witness has not stated about the reply which was given by the accused to her above second questioning. Further, PW12 Sh. Ravinder Singh and PW13 Sh. Umesh Kumar both have also SC No. 01A/06 DRI Vs. Luikham Fennylang 27 stated specifically in their testimonies that the accused was enquired in their presence by the DRI officers as to whether she was carrying any drugs but she had replied in negative. Thus, all the above witnesses have made consistent and corroborative depositions that the stand of the accused on being questioned with regard to the presence of any narcotic drug in her possession had been in negative throughout.
27. It is the case of the prosecution that after the conclusion of the panchnama proceedings the summons Ex.
PW4/J were given to the accused U/S 67 of the NDPS Act and in response to the above summons the accused had tendered her voluntary statement Ex. PW4/K under the above said provisions. Both these documents have been duly proved on record during the statement of the IO/PW4 and these documents are also not disputed by the defence as the defence is also relying upon the above statement Ex. PW4/K of the accused. During the course of the suggestions given on behalf of the accused to the IO/PW4 it was nowhere suggested to her that the above statement is not the voluntary statement of the accused or the same was given under any threats or influence etc. Even during the course of recording of her statement U/S 313 Cr.P.C. as well as in the written submissions filed on behalf of the accused, it has been specifically admitted by the accused that the above statement is her voluntary statement.
28. It has been argued on behalf of the DRI that the SC No. 01A/06 DRI Vs. Luikham Fennylang 28 recovery of the above contraband substance effected from the above bag of the accused is duly corroborated by the contents of her voluntary statement Ex. PW4/K and it stands proved on record that the accused was conscious of her possession of the above contraband substance, which was found concealed in the above foodstuff tin packs contained in the said bag. On the other hand, it has been argued by the Ld. Defence Counsel that even if the above statement of the accused is considered on record no culpable mental state of the accused or her conscious possession of the above contraband substance is made out from the record.
29. As far as the admissibility of her statement U/S 67 of the NDPS Act is concerned, it is now well settled that such a statement is admissible in evidence and can also be acted upon even if it is found to be confessional in nature as the same is a statement made by an accused prior to his/her arrest in the case and the only condition is that such a statement should be made or tendered voluntarily. However, if the accused subsequently retracts such a confessional statement, then the law is that the same should not be made the sole basis of conviction of the accused and it is not safe to rely upon such a statement, in the absence of any independent corroboration thereof.
30. Before appreciating the contents of the above statement (undated) of the accused, it is first necessary to deal with one other statement of the accused, which was filed on record on 30.07.2005 and is being stated to be the SC No. 01A/06 DRI Vs. Luikham Fennylang 29 retraction statement of the accused. It is an argument of Ld. SPP for DRI that since the first statement U/S 67 of the NDPS Act Ex. PW4/K of the accused dated 17.07.2005 is her voluntary statement, the above subsequent retraction dated 30.07.2005 thereof is of no help to the case of the accused as the same is an after thought and has been made after a long delay. It is also argued that the above retraction statement of the accused cannot also be otherwise read in evidence and considered by this court as the same has not been proved on record as per the provisions of the Evidence Act. Reliance in this regard has been placed on a judgement of the Hon' b le Supreme Court in case Kanhaiya Lal Vs. Union of India-AIR 2008 (SC) 1044, in the written submissions filed on behalf of the DRI.
31. The Ld. Defence Counsel in his written submissions has not disputed the propositions of law as laid down in the above said case and hence he has also acceded to the above submission of Ld. SPP for DRI that the above statement dated 30.07.2005 of the accused on record cannot be considered and acted upon by this court as the same is not a part of the evidence. In his written submissions he has also referred to one other judgement of the Hon' b le Supreme Court in case Kalpnath Rai Vs. State-AIR 1998 SC 201(1) wherein it was held by their Lordships that if any document is not a part of the evidence led on record, then the court cannot even put such a document to the accused during the course of recording of his statement U/S 313 Cr.P.C. In SC No. 01A/06 DRI Vs. Luikham Fennylang 30 this case also the above retraction statement dated 30.07.2005 of the accused is neither a part of the evidence adduced on record nor the same was put to the accused in her statement U/S 313 Cr.P.C. recorded by this court. Therefore, in view of the propositions of law laid down in the above said cases being referred to by the Ld. Counsels, the retraction statement dated 30.07.2005 of the accused cannot be considered for the decision of this case and it shall have no effect on her previous statement U/S 67 of the NDPS Act Ex. PW4/K.
32. Now, it is to be seen if the statement U/S 67 of the NDPS Act Ex. PW4/K of the accused is sufficient to establish her conscious possession of the above contraband substance or not. On perusal of the said statement it is found that apart from giving some personal background of her and her family, the accused had initially told therein as to how she had come in contact with the above Steve through her cousin Grace, who was claimed by Grace to be her husband, in Nigeria during her first visit and further as to how she was subsequently introduced with the above Gudman in India, as a cousin of the above Steve. She had also disclosed therein that on some previous occasions she had carried and handed over some baggage given by the above Gudman to the above Steve in Nigeria.
33. It is also found recorded in her above statement that when the accused was questioned about her current trip leading to her interception by the DRI officers in this SC No. 01A/06 DRI Vs. Luikham Fennylang 31 case, she had stated that this trip was also undertaken by her for the above Gudman, for whom she was to deliver the above baggage consisting of the above black colour zipper bag with khaki strips, which had been booked in by her to Mumbai for delivering it to Steve at Lagos in Nigeria, but she was intercepted by the DRI officers and the above contraband substance contained in the above baggage was recovered prior to her proceeding from Delhi for Mumbai in the above said flight. She had also stated in her above statement that she was informed by Gudman and Grace that the goods she was carrying for him was gold and further that it was not illegal to carry the same and she had never tried to verify the contents of the above baggage.
34. It is also found recorded in the above statement of the accused that she was informed by her cousin sister Grace that Gudman was in the business of sending goods to Lagos in Nigeria which had a good profit margin. It is also recorded therein that she had agreed to their proposal to carry the goods as she was being paid some good amount, besides her travel and accommodation charges etc. As far as the above consignment of the contraband substance seized in this case is concerned, there is nothing on record in the above said statement that she was aware about the nature of the above goods or the presence of the above contraband substance in her above baggage. While referring to a previous delivery of some baggage by her at the instance of the above Gudman in March 2005, she had stated in her above statement that on 05.03.2005 she was asked to SC No. 01A/06 DRI Vs. Luikham Fennylang 32 reach his house by Gudman from where he accompanied her in a taxi and on the way he had handed over her tickets and the baggage with the instructions that it may be delivered to Steve at Lagos and the same was accordingly delivered. It is also recorded in the above statement that prior to the delivery of the above tickets and baggage she had already handed over her passport to the Gudman in February 2005 in connection with the visa formalities. She had also stated therein that subsequently similar trips were made by her to Lagos in April & May, 2005 with the only difference being that for those trips she was paid US $ 1500 each, in comparison to US $ 1000 which she was paid for the first delivery of baggage.
35. Some relevant extracts of her above statement are being reproduced herein below :-
Q.1 Why did you accept the proposal of Gudman to carry goods for them to Lagos?
Ans. After Gudman and Grace informed to me that the goods I was carrying for him was gold and that it did not involved any risk, I agreed to it as I was getting easy money.
Q.2 Did you ever get a doubt that the goods you might be carrying in your baggage on behalf of Gudman could be anything other than gold?
Ans. When I carried the first consignment for Gudman in
SC No. 01A/06 DRI Vs. Luikham Fennylang
33
March 2005, it did occur to me that he might be using me for carrying narcotics to Nigeria as Nigerians are known drug- traffickers. However, when I raised the topic with Grace in this regard, she assured me that there is nothing illegal or risky about goods being carried by me on behalf of Gudman; that I am only being made to carry gold which has been smuggled from Dubai to India, which has a very good profit margin in Nigeria and I believed her in good faith. However, I must admit that at no stage did I verify or examine the baggage given by Gudman to satisfy myself that it contained only gold.
36. Thus, it is clear from her above statement that she was not aware that the above baggage consisting of the above black colour zipper bag with khaki strips handed over to her by the above Gudman was carrying any narcotic drugs, i.e. heroin, or any other substance prohibited under the NDPS Act. In the absence of that the statement Ex. PW4/K of the accused cannot be considered or held to be a confessional statement as the same rules out the presence of any culpable mental state of the accused or any conscious possession of the accused for the above said contraband substance recovered from the above baggage.
37. There are certain other factors brought on record also which rule out any such criminal intent on the part of the accused for possessing or carrying etc. the above contraband substance. It is the admitted case of the SC No. 01A/06 DRI Vs. Luikham Fennylang 34 prosecution that the above heroin was found concealed in 10 foodstuff tin packs of the above descriptions and hence the contents thereof could not have been seen by or visible to the accused. It is also on record during the statements of the material witnesses of the prosecution story, i.e. PW4/IO, PW12 Sh. Ravinder Singh and PW13 Sh. Umesh Kumar, that the contents of the above tins were taken out only after cutting of the above tins. IO/PW4 in his cross examination has admitted that the tins boxes from which the heroin was recovered were well sealed and it was not possible to open them with hands and tools were used to open these tin packs. He has also stated that the sealing of the tin boxes were perfect and it could not be determined what was inside the tin boxes. PW12 Sh. Ravinder Singh and PW13 Sh. Umesh Kumar have also corroborated the above depositions of PW10 to the extent that a knife, which is a sharp edged object was used by the IO/PW4 for cutting open the above tin packs. Further, though PW10 has broadly supported the case of the prosecution regarding the above seizure of the contraband substance, but during her cross examination she has specifically stated that she had only checked the other baggage carried by the accused and the checked-in baggage of the accused was searched by the IO. Hence, since the accused had disclosed in her above statement Ex. PW4/K that the baggage used to be delivered to her by the above Gudman in packed condition, she was not aware that the same contained any narcotic drugs or other prohibited substance under the NDPS Act and further since the tin packs containing the above contraband substance were so perfectly SC No. 01A/06 DRI Vs. Luikham Fennylang 35 packed and sealed, there was no opportunity or occasion for the accused to see the actual contents of the above tin packs and the baggage and simply because the accused had entertained some doubts at one stage that the same may contain any contraband substance, it is not sufficient to establish any knowledge on her part regarding the presence of the above contraband substance in her above checked-in baggage, which is the subject matter of this trial.
38. On the point of conscious possession the Ld. Defence Counsel has rightly relied upon the propositions of law as laid down in cases of Abdul Rashid Ibrahim Mansoori Vs State of Gujrat AIR 2000 SC 821 : Crl. L. J. 1384(1) and an order dated 04.03.2005 of our own High Court in a bail matter No. 2338/04 in case Kamaljeet Singh Vs Sh. H.K. Pandey (Intelligence Officer, NCB). The relevant propositions of law as laid down in the case of Abdul Rashid Ibrahim Mansoori - S upra being relied upon by the Ld. Defence Counsel are being reproduced herein :-
21. " No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto-rickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-section (2) as " beyond a reasonable doubt " . If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the SC No. 01A/06 DRI Vs. Luikham Fennylang 36 appellant is not entitled to acquittal.
However, if the Court entertains strong doubt regarding the accused ' s awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt dispelled. Even so, it is for the accused to dispel any doubt in that regard. "
22. " The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. "
39. The relevant propositions of law as laid down in the case of Kamaljeet Singh-Supra are also being reproduced herein below : -
16. " Looking at the entire factual material, as indicated above, it does appear that apart from the so-called confessional statement and the admission that one packet was recovered from under the seat on which the petitioner was seated in the said Maruti 800 vehicle, there is no other evidence available with the SC No. 01A/06 DRI Vs. Luikham Fennylang 37 prosecution. The so-called confessional statement, at this stage, does not appear to me to be a confession at all. In fact, the statement discloses that the petitioner did not know of the contents of the packet. "
17. " This being the case, it does appear that the petitioner was not in conscious possession of the said contraband, therefore, I am satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offences for which he has been charged..... "
40. Reference has also been made by the Ld. Defence Counsel to another celebrated case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein also the following observations were made by the Hon ' b le Supreme Court in the following words :-
87. " Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is " beyond all reasonable doubt "
but it is ' preponderance of probability ' on SC No. 01A/06 DRI Vs. Luikham Fennylang 38 the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. "
41. In view of the above propositions it can be said that even though there is a presumption of a culpable mental state of the accused U/S 35 of the NDPS Act in such a case, but even despite the above presumption the prosecution has not been able to prove the culpable mental state of the accused for possession of the above contraband substance beyond reasonable doubts and even in the absence of any defence evidence being led on record by the accused, the above presumption in not enough to hold the accused guilty for the offences for which she has been charged by this court. It is so because the evidence on record rather suggests that she was not aware about the presence of the above contraband substance in her baggage and this court has serious doubts regarding their being any such criminal intent or knowledge on her part to possess the same. In view of the peculiar facts and circumstances of this case and the propositions of law as laid down in the above said cases, the judgments in cases Madan Lal & Anr. Vs. State of Himachal Pradesh-2003(3) JCC 1330, Megh Singh Vs. State of Punjab-2003 VIII AD (SC) 27, Pawan Mehta Vs. State-2002 Drugs Cases 183 (DHC), Union of India Vs. Munna & Anr.-2004(3) JCC 1385 and Karam Singh & Ors. Vs. State-1981 Cr.L.J. NOC 123 (Raj) etc. being relied upon by Ld. SPP for SC No. 01A/06 DRI Vs. Luikham Fennylang 39 DRI are of no help to the case of the DRI as though the propositions of law as laid down in the above said cases cannot be disputed, but the facts of this case can be distinguished and the evidence led on record in this case negates any conscious possession or culpable criminal intent on the part of the accused and further despite the above presumption contained in Section 35 of the NDPS Act, the defence has been able to establish from the evidence led on record by the prosecution itself that the same is not sufficient to prove the presence of any such culpable mental state or conscious possession on the part of the accused for the above said contraband substance, i.e heroin.
42. Though certain other judgements have also been referred to by Ld. Counsels for the parties, but the discussion about the same is either felt not necessary or the same have also not been found to be applicable to the facts and circumstances of the present case.
43. Therefore, in view of the above discussion, it has been held that prosecution has not been able to establish on record the conscious possession or the culpable mental state of the accused for possessing 11.224 kg of heroin in the above baggage and hence the charge for the offence U/S 21(c) of the NDPS Act is not made out against her. Consequently, the charge for the offence U/S 23 of the NDPS Act, which relates to an attempt to export the above contraband substance out of India is also not made out.
SC No. 01A/06 DRI Vs. Luikham Fennylang
40
The accused is, therefore, acquitted of the above said
charges. The accused is running in custody in this case and hence she is directed to be immediately released from custody. However, the bond U/S 437A Cr.P.C has yet not been furnished on behalf of the accused. Hence, file will be consigned to the record room only after the furnishing of the above said bond.
44. Let the case property, except the personal documents and belongings of the accused on record, be confiscated and destroyed as per rules, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of the appeal, if any, to be filed against this judgment.
Announced in the open
court on 22.10.2011 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 01A/06 DRI Vs. Luikham Fennylang