Delhi District Court
Sc No. 440988/2016 Custom vs . Edi Rahman Sinaga Page No. 1/62 on 7 December, 2018
IN THE COURT OF AJAY GOEL, ADDL. SESSIONS
JUDGE-SPECIAL JUDGE (NDPS), DWARKA COURTS,
NEW DELHI.
Sessions Case No. 440988/2016
U/s: 8/22/23/28/29 NDPS Act
In the matter of:
Department of Customs
IGI Airport, New Delhi
Through Sh. Bhupendra Kumar,
Air Customs Officer,
IGI Airport, New Delhi. ....... Complainant
VERSUS
Edi Rahman Sinaga,
S/o Sh. Syamsul Sinaga,
R/o JL. UTAMA GG. ASRI No. 288,
RT/RW 03/03 Talang Mandi Mandau Bengkalis,
Indonesia. ........ Accused
Date of Filing of complaint : 01.05.2013
Date of Assignment to this court: : 12.07.2017
Date of Final Arguments : 06.12.2018
Date of Judgment : 07.12.2018
JUDGMENT:
CASE OF PROSECUTION:
1. The case of the custom department in brief is SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 1/62 that on 26.01.2013, accused was going to Kuala Lumpur from IGI Airport, New Delhi by flight No. MH 191 along with his baggage and accused was intercepted at IGI Airport, New Delhi by Anoop Kumar Gupta, Sub-Inspector CISF on suspicion and was handed over to the Custom Department for investigation. It is averred that during preliminary enquiries, it was observed that accused was feeling difficult to interact with the officers in the English or Hindi language, therefore two embassy officers from Indonesian Embassy, New Delhi namely Mr. Edy Wardoyo and Ms. Noviyanti Nurmala were called at Airport and they were requested to interpret the proceedings to which they voluntarily agreed.
2. It is the case of customs that in the presence of those embassy officers, the identity and nationality of accused was established from his travel documents including his passport. It is averred in SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 2/62 complaint that the said Embassy Officers also interacted with accused and made enquiries about travel, departure and other activities of the accused. Thereafter, two panch witnesses namely Sanjay Khantiwal and Kuldeep Garg were called and requested to join the proceedings to which they also joined voluntarily. It is the case of customs that notice U/s 50 of NDPS Act was served upon accused and contents of the same were read over and explained to accused in his language through the above said embassy officers. It is stated that reply of accused was also reduced into writing on the notice itself by the said embassy officers. Thereafter, the personal search of accused was conducted which resulted into the recovery of his passport, some currency, bank cards etc.
3. It is further the case of customs that after his personal search, search of his black colour hand bag SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 3/62 was conducted which apparently found containing clothes and personal effect etc., however the said articles were removed from the bag and it was observed that baggage of accused was unusual heavy, therefore out portion of the bag was cut opened and was found containing one packet made of Silver colour plastic. Thereafter, the packet was cut opened and was found containing white crystalline powdery substance.
4. It is averred in complaint that a little bit quantity of the substance was tested with the help of field drug test kit and it was found positive for 3, 4- methylenedioxy Phenyl, 2-propanone or 1-phenyl 2- proparone which is covered under the NDPS Act. Thereafter, the Custom Officer asked accused about the recovered substance with the help of embassy officers to which he replied that it was a drug. It is averred in complaint that the recovered substances SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 4/62 was found to be 2.900 kg and two samples mark A1 and A2 of 25 grams each were drawn from the recovered substance. It is stated that the remaining substance, samples and concealing material were sealed with the Custom Seal No. 6 after affixing paper slips on the same which were duly signed by the accused, panch witnesses, custom officer and the embassy officers. It is stated that the proceedings were recorded in the panchnama and contents of the panchnama were read over and explained to accused by the embassy officers.
5. Thereafter, accused tendered his voluntary statement U/s 67 of NDPS Act and said statement was recorded in the presence and with the help of the embassy officers, wherein accused admitted the recovery of contraband from his possession and other incriminating facts. Later on, seizure report U/s 57 of NDPS Act was prepared by the seizing officer and was SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 5/62 put up before Superintendent Custom. Thereafter, vide arrest memo, accused was put under arrest and his jamatalashi Memo was prepared and vide MLC, medical examination of accused was conducted. It is stated that recovered contraband, concealing material personal effect, samples etc. were deposited in the Customs Godown and entries were made in the Godown Register. It is stated that sample mark A1 was forwarded to the CRCL along with test memo, same was acknowledged by CRCL vide receipt.
6. Thereafter, sample was tested by the CRCL and vide test report, the sample was found positive for Methamphetamine Hydro chloride. It is stated that the remnant samples was deposited with godown. Later on, the travel documents i.e. passport, Air ticket etc. of accused were taken into possession for further enquiries. It is further averred in complaint that statements of embassy officer namely Ms. SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 6/62 Nobiyanti Nurmala and Mr. Edy Wardoyo were recorded wherein they deposed about the above said proceedings which was conducted in their presence. Thereafter, disembarkation of accused was called from the FRRO.
7. After completion of investigation and inquiries, complaint alongwith documents was filed in the Court by custom department.
CHARGE:
8. After hearing the arguments, charges U/s 8, 22, 23, 28 & 29 of NDPS Act was framed against the accused vide order dated 30.05.2013 by Ld. Predecessor of this Court to which he pleaded not guilty and claimed trial.
Prosecution Evidence:
9. In support of its case, prosecution had examined SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 7/62 following witnesses:
PW-1 is Sh. Murari Lal Meena, Superintendent Customs. He deposed that on 26.01.2013, Sh. Anoop Kumar Gupta came to his office and handed over a letter dated 26.01.2013 and apprised him about the facts of the case. He proved the copy of said letter as Ex. PW-1/A. PW-2 is Sh. Bhupender Kumar, ACO. He is the complainant/ IO of the case. He deposed that on the directions of Superintendent Customs/ PW-1, he took over the charge of present case and conducted further investigation in the present matter. He proved the several documents in his examination in chief.
PW-3 is Sh. Ajay Kumar. He is a witness before whom the accused tendered his voluntary statement U/s 67 of NDPS Act. He also proved various documents related to present case. SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 8/62 PW-4 is Dr. Meenakshi Salhan, Specialist, Department of Paediatrics, Safdarjung Hospital. She is the witness under whose supervision accused was examined in the hospital. PW-5 is Sh. Saurabh Agarwal, Nodal Officer, Vodafone. He brought the CDR of Mobile No. 8377078462 and proved the connection form as Ex. PW-5/A which was in the name of accused.
PW-6 is SI Anup Kumar Gupta, CISF,
Ahmedabad, Gujrat. He deposed regarding
stopping of accused on random basis for security check and observing some suspicious item in his bag.
PW-7 is Sh. Ranjeet Kumar, Inspector Service Tax. He is a witness who has issued custom seal No. 7 to Inspector Bhupender. He further deposed regarding receiving of case property in intact condition and entry No. 4593 as Ex. PW-7/A. SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 9/62 PW-8 is Sh. Sohan Singh, Protocol Officer, Embassy of Indonesia. He deposed that Ms. Noviyanti Nurmala, 3rd Secretary, Embassy of Indonesia has left India to her native country after completion of her job in India. He further stated that he can identify her signatures if shown to him as he has seen her writing and signing during the official business.
PW-9 is Sh. Sandeep Kumar Rawal, Deputy Commissioner of Customs. He deposed that on 28.01.2013, he had written a letter to the High Commissioner Indonesian Embassy, New Delhi whereby Embassy was informed about the arrest of accused in connection with recovery of narcotic substance from his possession and said letter was Ex. PW-9/A. PW-10 is Dr. Neha Mittal. She deposed that on 28.01.2013, accused was medically examined by SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 10/62 her under the supervision of Dr. Meenakshi Salhan. PW-11 Sh. Rajiva Ranjan, Superintendent, Service Tax. He deposed that on 28.01.2013, he was authorised by Sh. Ajay Kumar, Superintendent Customs to deposit the sample of present case with CRCL.
PW-12 Sh. Kuldeep Garg. He is one of the panch witness in the present matter and he deposed that on 27.01.2013, he was called by Customer Officer Sh. Bhupender to witness the proceeding of present case. He has identified the accused during his testimony.
PW-13 Sh. V. P. Bahuguna, Assistant Chemical Examiner, CRCL. He deposed regarding receipt of sample, verifying the particulars of sample and issuing of receipt. He further deposed that sample was alloted to him for analysis and it was found positive for SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 11/62 Methamphetamine Hydrochloride.
PW-14 Sh. Prem Chand, Superintendent. He deposed that on 18.03.2013, Inspector Sh. Bhupender Kumar came to him and handed over the remnant CRCL sample of present case to him in sealed condition and he made entry No. 4729 to this effect in SDO (A) Register.
PW-15 Sh. Malik Vishesh, Superintendent Customs and Central Excise. He deposed that he received the goods related to present case vide DR No. 64290 and he made entry in godown register.
PW-16 Sh. Kailash Chandra, Superintendent. He deposed that on 27.01.2013, he alongwith officers and Panch witnesses Amit Kumar Sharma and Vivek Sharma conducted search at Room No. 101, Hotel Shell Deluxe, Paharganj, New Delhi. During trial of case, witness Sh. Sanjay Khantwal SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 12/62 was dropped by Ld. SPP for the customs vide statement dated 08.03.2017 on the ground that other witnesses have already been examined on the similar lines.
STATEMENT OF ACCUSED:
10. After recording of the testimonies of the aforesaid PWs, the statement of the accused U/s 313 Cr. P. C. was recorded wherein accused pleaded his innocence and stated that he has been falsely implicated in the present matter and nothing was recovered from his possession. He further stated that the case property has been planted upon him.
11. I have heard the submissions of Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs and Sh. Rahul Nagpal, Ld. Defence Counsel from legal aid.
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ARGUMENTS OF PROSECUTION:
12. Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs submitted on the line of case filed by the department as well as on the line of the deposition of the aforesaid witnesses. Ld. SPP for the Customs stated that accused was intercepted at IGI Airport, New Delhi by Anoop Kumar Gupta, Sub-
Inspector CISF on suspicion and was handed over to the Custom Department for investigation. It is argued that during preliminary enquiries, it was observed that accused was feeling difficult to interact with the officers in the English or Hindi language, therefore two embassy officers from Indonesian Embassy, New Delhi and they were requested to interpret the proceedings to which they voluntarily agreed. It is further argued by Ld. SPP that two panch witnesses namely Sanjay Khantiwal and Kuldeep Garg were called and requested to join the proceedings to which SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 14/62 they also joined voluntarily and notice U/s 50 of NDPS Act was served upon accused and contents of the same were read over and explained to accused in his language through the above said embassy officers. It further argued that after his personal search, search of his black colour hand bag was conducted which apparently found containing clothes and personal effect etc., however the said articles were removed from the bag and bag was found containing one packet made of Silver colour plastic and the packet was cut opened and was found containing white crystalline powdery substance. Thereafter, a little bit quantity of the substance was tested with the help of field drug test kit and it was found positive for 3, 4- methylenedioxy Phenyl, 2-propanone or 1-phenyl 2- proparone which is covered under the NDPS Act. Thus accused is liable to be punished for the offences committed by him.
SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 15/62 ARGUMENTS OF DEFENCE:
13. On the other hand, Ld. Defence Counsel for accused submitted that accused has been falsely implicated in the present case and he has no concern with the alleged recovery. He further submitted that the alleged bag wherefrom the contraband was recovered does not belong to accused. Ld. Defence Counsel argued that provisions of Section 50 of NDPS Act has not been complied with and the valuable rights of the accused as available to him was not provided to him. The counsel for accused has argued that interpretor was not present at the time of conducting the proceedings by customs officer after interception of accused.
JUDGMENTS RELIED UPON BY LD. SPP FOR CUSTOMS:
1) Krishna Mochi & Ors. Vs. State of Bihar & SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 16/62 Ors. 2002 (2) CC Cases (SC) 58;
2) Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174;
3) Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1;
4) Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC);
5) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103,
6) M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631
7) Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174,
8) Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23;
9) Dalel Singh Vs. State of Haryana (2010) 1 SCC 149,
10) Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692, SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 17/62
11) Karnail Singh Vs. State of Haryana (2009) 8 SCC 539,
12) Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413,
13) Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125
14) State of Punjab Vs. Baldev Singh (1999) 3 SCC 977.
JUDGMENTS RELIED UPON BY LD. DEFENCE COUNSEL:
D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416
14. I have considered the rival submissions and gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence.
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FINDINGS:
15. From the perusal of record and evidence available on record, it is observed that the bag in question recovered from possession of accused very much belonged to him as same was booked by accused with the airline at the time of his check in and issuance of boarding passes.
16. PW-1 is Sh. Murari Lal Meena, Superintendent Customs who appeared in witness box and deposed that on 26.01.2013, Sh. Anoop Kumar Gupta came to his office and handed over a letter dated 26.01.2013 and apprised him about the facts of the case. He further deposed that said Anoop Gupta requested him to take over the case for the purpose of further inquiries. Consequently, he directed Sh. Bhupender Singh IO of the customs to take over the case with said passenger and his bagger. He had proved the SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 19/62 copy of said letter as Ex. PW-1/A. This witness has correctly identified the accused in the court. PW-1 was not cross-examined by accused despite grant of an opportunity.
17. Sh. Bhupender Kumar, ACO was examined as PW-2. He is one the material witness of the customs department being the complainant/ IO of the case. In his examination in chief, he deposed that on the directions of Superintendent Customs/ PW-1, he took over the charge of present case and conducted further investigation in the present matter. He has proved various documents in his examination in chief i.e. the notice U/s 50 of NDPS Act was proved as Ex.
PW-2/A, panchnama dated 27.01.2013 as Ex. PW-2/B, summons U/s 67 of NDPS Act as Ex. PW-2/C, statement of accused U/s 67 of NDPS Act as Ex. PW- 2/D, intimation U/s 57 of NDPS Act as Ex. PW-2/E, arrest memo of accused as Ex. PW-2/F, jamatalashi SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 20/62 memo of accused as Ex. PW-2/G, letter dated 28.01.2013 to CMO, Safdarjung Hospital as Ex. PW- 2/H, MLC of accused as Ex. PW-2/I, entries No. 4468 and 4469 as Ex. PW-2/J and PW-2/K, DR No. 60904 as Ex. PW-2/L, other DRs as Ex. PW-2/L1, PW-2/L2, PW- 2/L3, PW-2/L4, entry No. 4470 as Ex. PW-2/K1, another entry No. 4471 as Ex. PW-2/K2, receipt of CRCL as Ex. PW-2/K3, report of CRCL as Ex. PW-2/K4, DR No. 64290 as Ex. PW-2/K5, entry No. 4729 as Ex. PW-2/K6, copy of passport of accused as Ex. PW-2/K7, E-ticket of accused as Ex. PW-2/K8, the statement of Embassy officer as Ex. PW-2/K9, the entry cards of embassy officers as Ex. PW-2/K10 and K11, copy of test memo as Ex. PW-2/K12, letter dated 27.01.2013 as Ex. PW-2/K13, letter dated 04.02.2013 was Ex. PW- 2/K14 and CDR of accused as Ex. PW-2/L.
18. Sh. Ajay Kumar was examined as PW-3. He is a witness before whom the accused tendered his SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 21/62 voluntary statement U/s 67 of NDPS Act. He also proved several documents i.e. the authorization letter dated 28.01.2013 as Ex. PW-3/A, summons issued to panch witness Sh. Sanjay Khantwal as Ex. PW-3/B, statement of Sh. Sanjay Khantwal U/s 67 of NDPS Act as Ex. PW-3/C, summons issued to panch witness Sh. Kuldeep Garg as Ex. PW-3/D, statement of Sh. Kuldeep Garg U/s 67 of NDPS Act as Ex. PW- 3/E, copy of disembarkation as Ex. PW-3/F, letter written to Nodal Officer, Vodafone as Ex. PW-3/G. PW- 3 was also not cross-examined despite grant of an opportunity.
19. PW-5 Sh. Saurabh Aggarwal, Nodal Officer, Vodafone is a formal witness who brought the CDR of Mobile No. 8377078462 and proved the connection form as Ex. PW-5/A which was in the name of accused. Nothing contrary has come in his cross- examination.
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20. PW-6 SI Anup Kumar Gupta, CISF, Ahmedabad, Gujrat is one of the star witness of the customs department. He deposed regarding stopping of accused on random basis for security check and observing some suspicious item in his bag. He identified the accused in the court.
21. Sh. Ranjeet Kumar, Inspector Service Tax was examined as PW-7. He is a witness who has issued custom seal No. 7 to Inspector Bhupender. He further deposed regarding receiving of case property in intact condition and entry No. 4593 as Ex. PW-7/A. So issuance of seal and deposition of case property in intact condition stands duly proved.
22. PW-8 Sh. Sohan Singh, Protocol Officer, Embassy of Indonesia is also one of the material witness in the present case. He deposed that Ms. Noviyanti Nurmala, 3rd Secretary, Embassy of Indonesia has left India to her native country after SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 23/62 completion of her job in India. He further stated that he can identify her signatures if shown to him as he has seen her writing and signing during the official business.
23. PW-9 Sh. Sandeep Kumar Rawal, Deputy Commissioner of Customs has proved that on 28.01.2013, he had written a letter to the High Commissioner Indonesian Embassy, New Delhi whereby Embassy was informed about the arrest of accused in connection with recovery of narcotic substance from his possession and said letter was Ex. PW-9/A. So calling of embassy officers at the time of interception of accused is also duly proved.
24. Another important witness produced by customs is PW-11 Sh. Rajiva Ranjan, Superintendent, Service Tax. He deposed that on 28.01.2013, he was authorised by Sh. Ajay Kumar, Superintendent Customs to deposit the sample of present case with SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 24/62 CRCL. He proved the entry No. 4475 in the SDO (A) Register as Ex. PW-11/A. So the deposition of sample with CRCL has also been proved by this witness.
25. The Custom department has also produced panch witness namely Sh. Kuldeep Garg. He was examined as PW-12. In his examination, he deposed that on 27.01.2013, he was called by Customer Officer Sh. Bhupender to witness the proceeding of present case. He has identified the accused during his testimony correctly. So joining of public witness during proceedings has been duly proved by customs.
26. PW-13 Sh. V. P. Bahuguna, Assistant Chemical Examiner, CRCL has deposed regarding receipt of sample, verifying the particulars of sample and issuing of receipt. He further deposed that sample was alloted to him for analysis and it was found positive for Methamphetamine Hydrochloride. So SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 25/62 contents of the sample sent to CRCL has been duly proved.
27. Sh. Malik Vishesh, Superintendent Customs and Central Excise was examined as PW-15. He deposed that he received the goods related to present case vide DR No. 64290 and he made entry in godown register. The SDO Entry No. 4756 was proved as Ex. PW-15/A and entry No. 24/13 as Ex. PW-15/B. He proved further entries as Ex. PW-15/C, PW-15/D, PW-15/E and PW-15/F.
28. PW-16 Sh. Kailash Chandra, Superintendent.
He deposed that on 27.01.2013, he alongwith officers and Panch witnesses Amit Kumar Sharma and Vivek Sharma conducted search at Room No. 101, Hotel Shell Deluxe, Paharganj, New Delhi. He further deposed that before starting search, search authorization was shown to both panch witnesses and Sh. D. N. Joshi, Manager of said hotel and they SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 26/62 put their signatures on same. He also deposed that during search, nothing incriminating was recovered from the room of the hotel and entry register of the hotel in respect of entry No. 7719 to 7726 with the ID of the tourist/guest was taken into possession. He proved the panchnama alongwith ID and hotel register is Ex. PW-16/A.
29. Nothing contrary has come in the testimony of witnesses produced by customs and they have deposed as per their role in the investigation of the present case. Ld. Defence counsel has tailed to create any dent in the same.
30. Ld. Defence counsel further argued that the recovered substance was not tested at the spot and sample which was sent to the CRCL, was not in the sealed condition and was tempered with. In response to this argument, Ld. SPP submits that sample Mark A was sent to CRCL through PW-11 Sh. Rajiv Ranjan SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 27/62 who deposited the same with CRCL and obtained receipt. Deposition of PW-11 in this respect is reproduced herein below:-
"On 28.01.2013, I was posed at IGI Airport as Air Customs Officer. On that day, I was authorised by Sh. Ajay Kumar, the then Superintendent (Customs) to deposit the sample of the present case with CRCL, New Delhi. As per Authorisaation letter which is already Ex. PW-3/A bear my signatures at point B. I had collected sample mark A1 from SDO (A) in sealed condition. Entry in the SDO (A) register was made vide entry No. 4475 and same is Ex. PW-11/A which bears my signatures at point A and of SDO (A) at point B. After collecting the sample, I also collected the test memo in duplicate and went to CRCL. The sample and test memo in duplicate was SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 28/62 deposited with CRCL and obtained its receipt which is already Ex. PW-2/K3 and same was handed over to the IO of the case and informed Sh. Ajay Kumar, Superintendent Accordingly."
31. Moreover, PW-13 Sh. V. P. Bahuguna, Assistant Chemical Examiner, CRCL has deposed that "On 26.02.2013, the sample was taken out from the strong room for analysis and Sh. V. K. Sharma was the Incharge of Narcotics Section at that time. The particulars of sample Mark A1 were again tallied with the test memo and it was found in intact condition and in order. The sample was analysed by me under the supervision of Sh. V. K. Sharma, Chemical Examiner, Grade-II and it was found positive for Methamphetamine Hydrochloride."
32. Therefore, this argument of Ld. Counsel for defence does not hold water.
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33. Reliance is placed upon by counsel for accused on judgment titled as D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that "if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence"
34. Ld. Defence Counsel further argued that the statement of accused is not voluntary statement and same was obtained by Custom Officer under pressure and accused was not acquainted with Hindi and English language being Indonesian National.
35. In response to this argument, it is observed that the statement of accused recorded U/s 67 of NDPS Act Ex. PW-2/D is very much voluntary statement of accused because it has been reduced into writing by accused in the presence and with the help/ interpretation of the Embassy Officers and the Embassy officer Ms. Noviyanti Nurmala, Third SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 30/62 Secretary made an endorsement on the said statement to this effect. The relevant para of examination of PW-2 Sh. Bhupender Kumar, ACO in this respect is reproduced herein below :-
"In response to the aforesaid summon, accused appeared before Sh. Ajay Kumar, Supdt. Customs and tendered his voluntarily statement U/s 67 of the NDPS Act wherein he admitted the recovery of narcotics substance and other incriminating facts. The said statement is in own handwriting of accused and same is Ex. PW-2/D which bears signatures of Sh. Ajay Kumar at pt. A, accused at pt. B, on each page which runs into 3 pages. The aforesaid statement was recorded with the help/interpretation of the embassy officers. The embassy officer Ms. Noviyanti SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 31/62 Nurmala, Third Secretary made an endorsement on the aforesaid statement to the effect that Mr. EDI Rahman Sinaga tendered his voluntary statement in her presence without any pressure or threat, from Pt. X to X and put her signatures at Pt. C. Embassy officer Edy Wardoyo, Counsellor also put his signatures on the aforesaid statement at pt. D in continuation with the aforesaid endorsement of Ms. Noviyanti."
36. So perusal of statement recorded U/s 67 of NDPS Act, it is clear that his statement is a voluntary statement without any pressure and force and accused disclosed some special fact in his statement which were having in the special knowledge of accused. It is observed that the statement of SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 32/62 accused is otherwise admissible in evidence because same has been not recorded by police officer. There is no doubt that two interpretors/Embassy officers were very much present at spot. All the proceedings have been conducted in their presence. Moreover, they have signed all material documents alongwith accused in token of their presence apart from making noting that the documents has been signed in their present without any pressure or threat, voluntarily by accused.
37. Ld. SPP for Customs has relied upon case titled Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174, wherein it was held that section 67 NDPS Act permits the recording of statement made by the officers of NCB who are not the police officers. At this stage, the person concern is not an accused although he may be said to be in custody but on the basis of statement made by him, he could be made SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 33/62 an accused subsequently. It is further held in Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1 that :
"Even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under article 20 (3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence".
38. In case Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC) it was held that such statement made to officer of department of Revenue Intelligence were not hit by Section 25 of the Evidence Act though twin tests of voluntariness and truthfulness have to be satisfied by the Court. Further in M. Prabhu Lal Vs. Asst. Director Supra, it has been held that if confessional statement is found to SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 34/62 be voluntary and free from pressure, it can be accepted. No doubt, it all depends upon facts and circumstances of each case and no hard and fast rule can be laid down in this connection, as to whether a alleged confessional statement should be accepted. So in view of law laid down in the case M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631 Scm Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174, Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23, the statement U/s 67 is sufficient to base conviction. Further in the instant case, there is enough material to prove the guilt of accused beyond doubt. Ld. SPP for Custom in support of his contentions also placed reliance on the case titled Dalel Singh Vs. State of Haryana (2010) 1 SCC 149, Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692, Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, Firsozuddin Basheerudin & SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 35/62 Ors. Vs. State of Kerala 2001 VI AD SC 413, Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125. So in these circumstances, the arguments regarding statement U/s 67 NDPS Act is not tenable and same is held to be legally admissible document.
39. The accused stands charged for the conscious possession of commercial quantity of contraband. The stringent provisions are provided under that the punishment especially in the case commercial quantity of contraband is involved. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of such law on the one hand, the protection of citizen from oppression and injustice SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 36/62 on the other. The provisions are intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tempering with the record or the contraband. In the present case, the accused has concealed the plastic packet containing contraband in his bag, hence it cannot be stated that he was not in conscious possession of the contraband i. e. 2.900 kg of Methamphetamine Hydrochloride.
40. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out in their cross-examination to discredit them. Documentary and circumstantial evidence on record corroborate their statement. The counsel for accused has argued that accused has been falsely implicated and he has no connection with crime. It is observed that witnesses produced in court have no motive or reason to falsely implicate the accused in SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 37/62 this case. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
41. The present case is a case of recovery of huge quantity of Methamphetamine Hydrochloride. It is not possible to plant such a huge quantity upon the accused person. Moreover, there is no reason to falsely implicate the accused persons. In the case of SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 38/62 State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H. P. 2005 (1) Crimes 358 (H. P.) it was observed: it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to grind in implicating the accused."
42. The accused controverted the entire case of custom and pleaded his innocence, however the testimony of prosecution witnesses remained consistent and cogent. There is no evidence that the case property was at any stage tempered with. The case property and sample were also produced in the court which was identified.
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43. So far as argument raised by Ld. Defence counsel with respect to section 50 of NDPS Act is concerned, Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
44. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 40/62 officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 41/62 Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazette Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 42/62 Section 50 of NDPS Act. The Court did not agree with the contention that there was non- compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made".
45. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 43/62 suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and 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. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
46. The prosecution witnesses are clear and consistent in their deposition about the service of notice U/s 50 of NDPS Act before taking search of accused. The notice U/s 50 of NDPS Act Ex. PW-2/A is proved on record and on perusal of same, it is clear that statutory rights of accused in this regard was clearly explained to him.
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47. The attention of court is drawn towards the deposition of PW-2 Mr. Bhupender Kumar, ACO who deposed as under:-
"A notice U/s 50 of NDPS Act was served upon the accused whereby he was apprised about his legal right to the effect that his personal search and search of his baggage could be conducted in the presence of Magistrate or Gazettted Officer, to which he replied in writing on the body of the notice itself that he does not want the presence of a Magistrate or any Gazetted officer and any Custom officer can take his personal search and search of his baggage. Notice U/s 50 of NDPS Act is Ex. PW- 2/A which bears my signature at pt. A. The aforesaid reply of the accused is appearing from pt. X to X and signatures of accused at pt. B on Ex. PW-2/A. The contents of the notice SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 45/62 u/s 50 of NDPS Act were explained to the accused through both Embassy Officers, similarly, the answer of accused was received through them and they made an endorsement to this effect on the notice u/s 50 NDPS Act Ex. PW-2/A from pt. Y to Y and both embassy officers put their signatures at pt. C and D respectively. After having understood the contents and his reply, accused put his signatures at pt. E."
48. The said notice Ex. PW-2/A bears the signatures of accused at point B apart from signatures of Embassy officers at point C and D respectively. Same also bears the signatures of panch witness namely Sh. Kuldeep Garg who was examined as PW-12. Bag was opened in his presence who is totally independent witness. He has deposed in witness box about his role in the investigation SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 46/62 done in the present case and nothing contrary has come in his deposition as his testimony is consistent. He is a material witness as he had witnessed all the proceedings conducted in the matter. He has identified his signatures on all the documents prepared at spot.
49. The Ld. Defence counsel has argued that legal rights of accused were not explained before personal search and examination of baggage and has relied upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1 wherein the Hon'ble High Court of Delhi has held as under:-
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he (accused) has been apprehended and is required to be searched, if he so desires he can first take the SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 47/62 search of the police party - On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and the testimony of PW11 the Investigating Officer shows that the appellant was informed only about the option and not about his right of being searched before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
50. This judgment is not applicable to the facts of the present case because in the present case, perusal of notices U/s 50 of NDPS Act Ex. PW-2/A shows that legal right of accused was explained to him. The contents of above notice are reproduced herein below:-
"Whereas you, EDI Rahman Sinaga, Aged SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 48/62 30 yrs (approx) Indonesia national holder of Passport No. A4302784 dated 27.12.2012 issued by the Republic of Indonesia, with one black colour hand bag, were handed over by CISF officials to Customs on suspicion.
Your personal search and search of your baggage is to be conducted. This is your legal right that if you so desire the same could be conducted before a Magistrate or any Gazetted officer."
51. So from above perusal of contents of notices, it is clear that legal rights of accused to be searched of his person and examination of his baggage can be conducted before a Magistrate or a Gazetted officer to which he refused. So this argument of Ld. Defence counsel is not tenable and does not hold any water. Moreover, the contraband was recovered form the baggage given to authorities and recovery is not in SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 49/62 person from accused so section 50 NDPS Act is not applicable.
52. The interpretor was present at the time of conducting the proceedings by customs officer after interception of accused and panchnama was prepared in the presence of interpretor. Moreover, there is statement of said Interpretor/Embassy officer Ex. PW-2/K9 and perusal of same shows that both embassy officers explained the proceedings and contents of document to accused and accused tendered his voluntary statement in their presence without any pressure or threat in his own handwriting. Said embassy officers rather endorsed the documents i.e. Notice U/s 50 of NDPS Act, Panchnama and statement of accused. So the above argument of Ld. Defence Counsel is also not tenable.
53. Judgment titled Jayapalan Vs. State 1989 C. SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 50/62 C. Cases 239 (HC) relied by Counsel for accused is in respect of compliance of Section 42 of NDPS Act. In the instant case, there is due compliance of section 42 of NDPS Act.
54. The Counsel for accused has argued regarding tempering of case property till the same remained in the custody of custom officials. In rebuttal to same, Ld. SPP for the customs has rightly relied upon judgment titled Ranjodh Singh Vs. State of Haryana, Parminder Singh Vs. State of Haryana, Radha Kishan Vs. State, Beera Singh Vs. State of Punjab, Amarjit Singh Vs. The State of Punjab and Jarnail Singh Vs. State of Punjab. The sequence of deposit of case property with official is duly proved and does not point regarding tempering.
55. In the judgment titled Jarnail Singh Vs. State of Punjab, Hon'ble Supreme Court has referred SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 51/62 to Balbir Kaur Vs. State of Punjab wherein it has been observed that as far as delay in sending samples is concerned, in view of Hardip Singh's case where there was gap of forty days between seizure and sending the samples to the Chemical Examiner the court held that in view of the cogent evidence that opium was seized from the appellant and seals put on the samples were intact till it was handed over to the Chemical Examiner, delay itself is not fatal to the case of prosecution. Some time, it may be fatal but it depends on each and every case. In the present, the accused was intercepted at Airport on the basis of intelligence and they were carrying contraband in their baggage and on checking, same was recovered from their said baggage which was a commercial quantity and there is no possibility that same was planted upon them. In the instant case, the seals were not only intact, there were also tallied SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 52/62 with the specimen seal as per the forwarding authorities. Therefore, this argument of Ld. Defence counsel stands demolished.
56. Therefore, the argument of Ld. Defence counsel that there is absence of link evidence is also weak in nature. Link evidence has been duly proved.
57. It is confirmed with the CRCL result (admissible under Section 293 of Cr. P. C.) Ex. PW-2/K4 that contraband sent to FSL which was recovered from the accused persons was Methamphetamine Hydrochloride. The contents of report Ex. PW-2/K4 are reproduced herein below:-
"The sample is in the form of white crystals. On the basis of chemical and chromatographic examinations, it is concluded that the sample under reference answers positive test for the presence of Methamphetamine Hydrochloride".
58. In the light of consistent and reliable testimony SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 53/62 of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by him either by examining himself on oath or by leading any cogent evidence in his defence.
59. In the instant case all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided, suspicion. This case is not based on conjectures or surmises.
60. It is also argued by Ld. Defence counsel that public witnesses have not been produced to prove guilt of accused in the present case. Again this argument of Ld. Defence counsel does not hold water as panch witness Mr. Kuldeep Garg PW-12 is public witnesses who has appeared before the Court and SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 54/62 produced himself in witness box and has deposed substantially against the accused. He has correctly identified the accused in the court during his examination in chief. Moreover, in his cross- examination, he deposed that "I had offered my personal search to the accused. He had searched me. No videography and photography was carried out. The case property was sealed in my presence. I cannot recollect the name of Custom Inspector who drew the sample. Two samples were drawn. I cannot recollect the weight of same. The test upon the recovered substance was carried out. The substance was of white colour in crystal form. The test kit was available with the Inspector. After test, the property was sealed. The test was conducted in my presence. ........ I was working with Air India. I am not carrying my I-card. I SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 55/62 have left the job in August 2016. This was the first time when I was joined as a witness. I do not know how the investigation is carried out in NDPS Act. The person/accused is sitting in Court in Yellow T-shirt. (The witness has correctly identified the accused). When I was approached the accused was already intercepted by the Customs. The goods were opened in my presence".
61. So from above discussion, it is clear that all the proceedings were conducted in the presence of panch witness.
62. Even otherwise, if there is no public witness produced in evidence, same is not fatal to the case. The Ld. Defence counsel has contended that no independent witness was associated with custom officials despite recovery at public place, as such no reliance should be placed. For this Ld. Defence SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 56/62 Counsel has relied upon judgment titled Prithvi Pal Singh @ Munna Vs. State 2000 (1) JCC (Delhi) 274 and Pradeep Kumar Vs. State 1997 JCC 476. Ld. SPP for the Customs has rightly pointed out that in the given facts and circumstances, non-joining of witnesses from public, arrest of accused and recovery from his possession when all the witnesses to arrest and recovery have made cogent and convincing statements regarding the manner in which the investigation was conducted that there is no discrepancy and material contradiction therein.
63. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there is no reason to discredit the convincing testimony of witnesses of customs. This SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 57/62 is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 58/62 independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
64. It is settled law as laid down in Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution". Rather, in the present matter, PW-12 is a public witnesses.
65. Moreover, reliance is placed upon judgment titled Raghuvir Singh Vs. State AIR 1971 Supreme Court 2156 wherein it was held that prosecution is not bound to produce all the witnesses said to have seen the occurrence. It becomes the duty of the Court to make an effort and find out the SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 59/62 things. In the case of State Vs. Kishangopal AIR 1988 SC 2154, it was held that doubts would be called reasonable if they are free from zest for abstract speculation. Law cannot afford any favourite other than truth. So this argument is not tenable and does not hold water.
66. From perusal of documents and material available on record, it is observed that accused was carrying contraband in his baggage knowingly and accused conceal the recovered drug in the said baggage and he was having possession of said contraband and he tried to export the same out of India in contravention of the provisions of Section 8 of NDPS Act. From the above discussion of evidence, it is clearly made out that the accused herein had made conspiracy, abetment and attempt to export the contraband from India.
67. On considering the facts available on record, SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 60/62 the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was in conscious possession of Methamphetamine Hydrochloride.
68. In view of the documents available on record, testimonies of the prosecution witnesses and the aforesaid discussion, this court holds that prosecution has proved its case beyond any shadow of doubt. The accused Edi Rahman Sinaga was found in possession of commercial quantity of contraband articles from his baggage. Thus, it is held that he committed offence as prescribed under Section 8, 22, 23, 28 & 29 of NDPS Act and accused entered into a criminal conspiracy for possessing contraband and tried to export the said recovered substance/ contraband out of India in contravention of provisions of NDPS Act and thus the accused herein had made conspiracy, abetment and attempt to export the contraband from SC No. 440988/2016 Custom Vs. Edi Rahman Sinaga Page No. 61/62 India and committed the offences punishable under abovesaid sections. Hence, accused Edi Rahman Sinaga is held guilty for the offence committed by him and he is convicted U/s 8, 22, 23, 28 & 29 of NDPS Act, 1985.
69. Copy of this judgment be also given to accused free of costs. The case property is confiscated to the State and be disposed of as per rules. Digitally signed by AJAY AJAY GOEL Date:
GOEL 2018.12.11
15:36:48
+0530
Pronounced in the open court. (AJAY GOEL)
Dated: 07.12.2018 ASJ/Special Judge (NDPS),
Dwarka Courts, New Delhi.
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