Delhi District Court
Customs vs Yoganathan Jaganathan on 29 April, 2025
SC no. 56/2023 Customs Vs Yoganathan Jaganathan
IN THE COURT OF MANU GOEL KHARB:
SPECIAL JUDGE (NDPS)-02 SOUTH-WEST DISTRICT
DWARKA COURTS:NEW DELHI
SC no. 56/2023
CNR No. DLSW01-000903-2023
The Customs Vs Yoganathan Jaganathan
Through Drawinder Singh S/o Sh. Rajangam Jaganathan
Air Customs Officer, R/o Plot no. 24/77, Saraswathi
IGI Airport, New Delhi Street, Bharath Nagar,
Adambakkam, Chennai, Tamil
Nadu-6000088
Date of Commission of : 02.08.2022
offence
Offence complained of : 21(c)/23(c) NDPS Act
Plea of accused : Pleaded not guilty and claimed
trial
Date of Institution : 25.01.2023
Date when final arguments : 29.04.2025
heard
Date of Judgment : 29.04.2025
JUDGMENT:
1. The case of the Customs in brief is that on 02.08.2022, accused Yoganathan Jaganathan arrived at Terminal-3, IGI Airport, New Delhi vide Flight No. ET 686 dated 01.08.2022 from Addis Adaba (ADD) to New Delhi (DEL) and he was carrying two checked-in trolley bags, one of maroon colour having tag no-ET 27-19-63 and another blue colour bearing Tag No. ET 27-19-62 and one Hand Bag of green colour. On the basis of information, the accused was intercepted after he had Page no. 1 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan crossed the Green Channel and was approaching Exit Gate, and asked by the Customs Officer on duty, whether he was carrying any dutiable or contraband or prohibited goods, to which he replied in negative. Thereafter, his baggage was scanned through 'X-Ray Baggage Inspection Machine' and during X-ray, some suspicious images were noticed in his checked-in trolley bag of maroon colour. During Door Frame Metal Detector (DFMD) examination of the accused no beep sound was heard. The accused, along with his bags, was taken to the Customs Preventive Room at International Arrival Hall of the T-3, IGI Airport for detailed examination and two panchas i.e. Sh. Sharif and Sh. Mukesh were called to witness the search proceedings and in their presence Customs officer again asked the accused that whether he was carrying any contraband items like drugs etc., to which he replied in negative. Thereafter, Notice under Section 50 of the NDPS Act, 1985 and under Section 102 of the Customs Act, 1962 were served upon to the accused by the Customs Officer, wherein he was informed, about the requirement of his personal and baggage search and was apprised of his legal rights that his personal search and search of his baggage could be conducted in the presence of a Magistrate or a Gazetted Officer of Customs, to which the accused gave his consent in writing on the body of both the Notices itself that his personal and baggage search could be conducted by any Customs Officer. The personal & Baggage search of the Pax was conducted by the Page no. 2 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan Customs Officer. During personal search of accused, nothing objectionable was found, but while searching the maroon colour checked-in trolley bag having tag no- ET 27-19-63, it was found that the bag contained clothes and old & used personal effects but the said bag was abnormally heavy even after removing all his personal belongings. On the detailed scrutiny of the said bag, four packets of black coloured polythene (weighing 1380 grams, 1340 grams, 1400 grams & 1400 grams respectively) of off-white colour powdery/granules, wrapped with transparent adhesive tape, total weighing 5520 grams (including the weight of the packing material) suspected to be narcotic substance, was recovered from the specially made cavities in the base of the said bag. From the search of the remaining bags, nothing objectionable was found. Thereafter, four black coloured polythene bags wrapped with transparent adhesive tape were opened and the same was kept in transparent plastic pouches and were numbered from 01 to 04. Each plastic pouch was weighed and found 1225, 1175, 1230 and 1217 grams respectively and were kept in a transparent plastic container having green colour lid, weighing 580 grams. Those transparent plastic containers having green colour lid containing transparent plastic pouches containing suspected narcotics substance, numbered from 01 to 04 were weighed and totally weighed as 5450 grams. Beside above, during the personal and baggage search of the accused, his Boarding Pass of Flight No. ET 686 dated 01.08.2022 and Flight No. Page no. 3 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan ET 873 dated 01.08.2022 from LUN to ADD, One black colour old and used Samsung mobile having mobile No. +91-9445167594, Indian Passport No. V 1439544 Currency - USD-5000/-Zambian Currency 25 and INR 9320/-, One blue color trolley bag and one green colour hand bag having items of used personal effect have been recovered.
The representative sample of the recovered white colour powder/granules, kept in two packets suspected to be narcotic substance were tested with the help of Modified Narcotic Drugs Detection Kit, manufactured by Hindustan Antibiotics Limited (a Govt. of India Enterprise), Pimpri, Pune-411018. The white colour powder/granules substance recovered from all two packets, separately were tested positive as "Heroin" and the same was seized under Section 43(a) the NDPS Act, 1985 and wrapped with customs tape and further with white marking cloth, stitched and sealed with Brass Seal having mark "IGI Air Customs New Delhi, T-3, A OPEN", a paper slip duly signed by Customs Officer, accused and witnesses affixed thereon and detained under D.R. No.66676 dated 02.08.2022 and deposited in the Non-valuable godown. Four black coloured polythene bags wrapped with transparent adhesive tape were put into the maroon colour trolley bag and wrapped with Customs Adhesive Tape and sealed with Customs plier seal 'PA IGI' on one side and "Ashoka Stambh' on another side and paper slip duly signed by Customs Officer, the accused and witnesses was Page no. 4 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan affixed thereon and the same were detained under D.R. No. 66677 dated 02.08.2022 and deposited in the Non- valuable godown. Thereafter, a panchnama dated 02.08.2022 was drawn on the spot and typed on the Computer System available in the Customs Preventive Room in the presence of witnesses and read over and explained in vernacular to the accused and the witnesses and they alongwith the Customs officer have signed in token of having been drawn correctly. The customs seal Customs pliers seal ' AIR CUSTOM IGI AIRPORT T-3 NEW DELHI OPEN A" was taken from Incharge of seal and deposited with him with after use. Thereafter, statement of the accused was recorded under section 67 of the NDPS, Act, 1985 on the spot wherein, he admitted the search, recovery and seizure of 'Heroin from him in the manner incorporated in the Panchnama and is well versed with English &Tamil. Accused was put under arrest, after informing him grounds of his arrest. The accused was medically examined and produced before the court on 02.08.2022, where he was remanded to J.C. On 02.08.2022 the case property was deposited in Non- valuable Godown vide entry No. 291/2022 in the Disposal Godown register.
Thereafter, the application under section 52-A of the NDPS Act 1985 was moved before concerned Ld. M.M. and Ld. M.M. issued production warrants with directions to the Jail Superintendent to produced the accused on 08.09.2022. On 08.09.2022 the accused was produced Page no. 5 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan from Jail, the case proper i.e seized drugs was also produced by Incharge Godown and proceedings in terms of section 52-A of N.D.P.S Act, have been conducted. Eight representative samples of 5 gms each marked SO-1, SD-1 from packet A-1, and SO-2 and SD-2 from Packet 'A-2, SO-3 and SD-3 from Packet A-3 and SO-3 and SD-3 from Packet A-4 were drawn. The samples SO-1 SO-2, SO-3 and SO-4 have been kept for chemical examination in Laboratory and SD-1, SD-2, SD-3 and SD-3, have been kept for record. The samples and remnant case property have been sealed with the seal of the court i.e. 'AA' and signed by the court. The stepwise photographs of the proceedings were also taken up. On conclusion of proceedings, the samples, envelopes and remaining sealed property was handed over to the Incharge Godown. On 15.09.2022, photographs of the sampling proceedings were attested and signed by the court. Incharge Godown deposited the remaining case property and samples in the Godown by making endorsement in the Disposal Godown register (entry No. 337/2022 dt.08.092022 in respect of samples).
On 23.09.2022 Sh. Mohd. Sajid ACO under authorization dated 09.09.2022 issued by Assistant Commissioner of Customs, collected envelopes containing samples SO-1, SO-2 SO-3 and SO-4 from the Godown Incharge, by making endorsement in the Godown register and took them to C.R.C.L. and deposited them against the Page no. 6 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan receipt entry No. 361 dated 23.09.2022 issued by the laboratory.
On 01.11.2022, test report alongwith remnant samples were received in the office of Assistant Commissioner Customs (Disposal). As per report of Chemical examiner, the samples marked SO-1, SO-2 SO-3 and SO-4 under reference, answered positive test for (Heroin) diacetylmorphine Hydrochloride with purity 32.1% 32.8%,20.% & 26.5% respectively. The remnant samples were deposited in the Customs Godown vide D.R No.419 dated 12.12.2022. After completion of investigation, charge sheet was filed against the accused under Sections 21(c) and 23(c) read with section 28 NDPS Act.
2. The copy of charge-sheet and annexed documents were supplied to accused in compliance of Section 207 Cr. P. C. On 24.04.2023, charge for the offence punishable under Sections 21(c)/23(c) NDPS Act was framed against the accused to which he had pleaded not guilty and had claimed trial.
3. To prove the offence under section 21(c)/23(c) NDPS Act against the accused, Customs has examined 09 witnesses.
4. PW1 is Sh. Drawinder Singh, ACO, who has filed the present complaint Ex.PW1/A. PW1 also received test Page no. 7 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan report and remnant sample and deposited the sample vide DR no. 45919 on 12.12.2022 Ex.PW1/B. PW1 also recorded statement u/s 67 NDPS Act of panch witnesses Mukesh Kumar vide Ex.PW1/C and of Sharif Nat vide Ex.PW1/D.
5. PW2 is Sh. Basudeo Banerjee, Assistant Commissioner. PW2 deposed that on 02.08.2022, Seizing IO/ACO Umesh Jayas had given written request for issuance of brass seal and PW2 had issued brass seal having impression 'AIR CUSTOMS OPEN A' and thereafter after sealing the case property, PW5/Umesh Jayas gave another written request for depositing the custom brass seal. PW5/Umesh Jayas gave written arrest report Ex. PW2/A of accused and seizure of 4847 grams of Heroin. On 09.09.2022, PW2 had written a letter Ex.PW2/B to CRCL for submission of four representative samples and authorized PW4/Mohd. Sajid to deposit the sample to CRCL.
6. PW3 is Sh. Ajit Singh, Air Custom Superintendent.
PW3 deposed that on 02.08.2022, ACO Umesh Jayas informed him about the seizure of case property. PW3 issued summons Ex. PW3/A under section 67 NDPS Act and recorded voluntary statement vide Ex. PW3/B of accused under section 67 NDPS Act. PW3 had issued letter Ex.PW3/C to Medical Superintendent, DDU Hospital. PW3 had also issued letter Ex. PW3/D to Page no. 8 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan Director/CEO M/s. Omini Comp for forensic examination of mobile phone recovered from accused. During investigation, IO deposited case property vide DR Ex. PW3/E and Ex. PW3/F.
7. PW4 is Air Custom Officer Mohd. Sajid. PW4 deposed that on 09.09.2022, he was authorized by the PW2/ Basudeo Banerjee to carry samples drawn in the present case to Chemical Examiner CRCL vide authority letter Ex. PW2/B. On 23.09.2022, PW4 collected four samples mark SO1, SO2, SO3 and SO4 duly sealed with the seal of 'AA' in one envelope along with one copy of test memo and deposited the same at CRCL and CRCL issued receipt Ex. PW4/A vide diary no. 361 dated 23.09.2022.
8. PW5 is Sh. Umesh Jayas, ACO. PW5 deposed that on 02.08.2022, he was present at green channel and accused arrived at T-3, IGI Airport from ADDIS ABABA. On the information received from AIU, PW5 intercepted the accused at exit gate after he had crossed the green channel and he was carrying two check in bags i.e. one Maroon color trolly bag and one blue color trolly and one green color hand bag. PW5 inquired from accused whether he was carrying any contraband/prohibited item with him, to which he replied in negative. PW5 diverted accused for X-ray examination of his baggage and in X-ray some suspicious images were noticed in Mahroon colour checked in baggage. During Page no. 9 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan DFMD of accused, no beep sound was heard. Thereafter, PW5 took the accused alongwith his baggage in the Customs Preventive Room and called two independent witnesses. In the presence of witnesses, PW5 further asked the accused whether he was carrying any prohibited item/contraband with him, to which he again replied in negative. Thereafter, PW5 served upon the accused two notices i.e. under section 50 NDPS Act Ex.PW5/A and Section 102 of Customs Act Ex. PW5/B and informed the accused that his personal and baggage examination is to be conducted, and it is his legal right to be examined before Magistrate or Gazetted officer of Customs. The accused replied in the body of the notice and stated that his personal and baggage search can conduct by any officer of Customs. PW5 conducted baggage and personal search of the accused vie memo Ex. PW5/C and nothing objectionable was recovered from the possession of accused. However, white colour powdery/granule substance in four black colour polythene bags wrapped with transparent adhesive tape was recovered from the false cavity in the Mahroon colour trolley bag of the accused. PW5 emptied the powdery substance from each black colour polythene in four separate polythene pouches and on testing, the same was found positive for Heroin and the weight of each pouch came out to be 1225, 1175, 1230 and 1217 grams respectively and the total weight was 4847 grams. PW5 numbered those pouches as 1, 2, 3 and 4. All the four transparent pouches containing drug were thereafter, put in Page no. 10 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan a transparent plastic box after sealing the same with Customs brass seal 'IGI Air Customs New Delhi T-3 A Open'. The concealing material i.e. black colour polythene pouches had been kept in the same Mahroon colour trolley bag and sealed with the Customs Plier Seal 'PAIGI'. Both the above sealed containers were detained vide DRs i.e. 66676 Ex.PW3/E and 66677 Ex. PW5/N dated 02.08.2022 respectively. PW5 prepared panchnama Ex.PW5/D at the spot. PW5 took into possession documents i.e. two boarding passes of connecting flights of accused vide Ex.PW5/E and Ex.PW5/F, baggage tags vide Ex.PW5/G and Ex.PW5/H, impression of brass seal used vide Ex.PW5/I. PW5 prepared the seizure memo vide Ex.PW5/J, prepared the inventory of seized goods vide Ex.PW5/K. Photocopy of the passport of accused is marked as Mark L. PW5 also taken the possession of computer generated passenger manifest of Ethiopian Airlines vide Ex. PW5/M. DR No. 66678 drawn by him was Ex. PW3/F. PW5 arrested accused vide arrest memo Ex.PW5/O, prepared the jamatashi of accused vide memo Ex.PW5/P of the accused, prepared report in terms of Section 57 of NDPS Act after seizure and arrested and submitted the same to his superior Sh. Basudeo Banerjee, Assistant Commissioner of Customs vide Ex.PW2/A. During investigation, mobile phone of the accused was sent for forensic examined by Sh. Bhupender Singh (Forensic Expert) on 10.08.2022 and PW 5 drawn the panchnama dated 10.08.2022 vide Ex. PW5/Q. Page no. 11 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan On 17.08.2022, PW5 moved application Ex. PW5/T under section 52 (A) of NDPS Act before Ld. MM and on 08.09.2022, Sh. Ravi Kumar, godown Incharge had produced the case property before the Ld. MM and accused joined the proceedings through V/C. The four pouches containing case property was produced and two representative samples mark SO1 to SO4 and SD1 to SD4 have been brought. The test memo in triplicate Ex. PW5/R were prepared before the court for sending the samples SO1 to SO4 to CRCL. The 23 photographs Ex. PW5/S and CD of the photographs Ex. PW5/S1 of the sampling proceedings were also taken before the Ld. MM. PW5 issued letter of request to the witnesses to join the proceedings vide Ex. PW5/U and Ex. PW5/V. PW5 identified case property i.e. one Mahroon colour trolley bag vide DR slip 66677 Ex. PW5/W. PW5 identified the Mahroon Colour trolley bag Ex. X1. PW5 demonstrated the manner in which the drug was concealed inside the bag and PW5 identified the four packets Ex. X2. Godown Incharge produced destruction certificate Mark Z and relevant entry is at sl. no. 6 at Z1 and endorsement regarding destruction is marked Z2.
9. PW6 Ravi Kumar is the then Incharge, Customs Non- Valuable Godown. He deposed that on 02.08.2022, ACO Umesh Jayas deposited four packets containing narcotic substance/contraband duly sealed with Customs seal vide entry no. 291/2022 Ex. PW5/K. Page no. 12 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan On 08.09.2022, PW6 produced case property before Ld. MM for sampling proceedings. PW6 removed paper slip Ex. PW6/A attached on the case property. Thereafter, proceedings under section 52A NDPS Act and representative samples of the case property marked SO1 to SO4 and SD1 and SD4 were drawn. After completion of proceedings, two envelopes containing SO1 to SO4 and SD1 to SD4 were were handed over to him.
10. PW7 Mahendra Kumar Meena Superintendent received one envelope containing remnant sample along with test report from CRCL on 12.12.2022 PW7 directed the IO to deposit the same with godown and IO had issued DR for depositing the sample in godown vide Ex. PW1/B.
11. PW8 is panch witness Sharif Nat. PW8 deposed that he was working at T-3 IGI Airport in Housekeeping. On 02.08.2022, PW5/Umesh called him to join the investigation and he reached the spot where one passenger was present. PW5 served two notices upon accused for conducting his search under section 102 Customs Act and under section 50 NDPS Act. Accused was asked that his search is required and if he so wish the same could be conducted before a Magistrate or Gazetted Officer of Customs to which accused replied that any Custom Officer can conduct his search. During personal search of accused, nothing objectionable was recovered and accused was carrying two checked in baggages, one Mehroon Page no. 13 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan colour and one blue colour. From blue colour baggage nothing objectionable was found except his personal effects. Thereafter, Mehroon colour checked in baggage was searched and when inner lining of the bag was removed it was found containing four black coloured packets/pouches and on opening white colour powdery substance was recovered. On testing by the IO, the same was found to be narcotic drugs and after weighing the substance the weight of the same was found to be 4Kg 800 Grams. All the four packets were kept in a container, secured with custom seal and wrapped with white cloth and sealed with the seal of custom. PW8 identified his signatures on notice under section 50 NDPS Act Ex. PW5/A, notice under section 102 Customs Act Ex. PW5/B, documents Ex. PW5/C, Ex. PW5/D, Ex. PW5/V, Ex. PW5/I, Ex. PW5/J, Ex. PW5/K, Ex. PW5/F, Ex. PW5/N, Ex. PW5/Q and Ex. PW6/A. Later on, he was called by the IO and he had tendered his statement under section 67 NDPS Act Ex. PW1/D.
12. PW9 is Sh. Mukesh Kumar panch witness. PW9 stated that he was working in Housekeeping and on 02.08.2022, PW5 IO/Umesh called him to join the investigation and when he reached the spot, one passenger was intercepted by him. IO served two notices upon the accused for conducting his search under section 102 Customs Act and under section 50 NDPS Act. Accused was asked that his search is required and if he so wish the Page no. 14 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan same could be conducted before a Magistrate or Gazetted Officer of Customs to which accused replied that any Custom Officer can conduct his search. During personal search of accused, nothing objectionable was recovered and accused was carrying two checked in baggages, one Mehroon colour and one blue colour. From blue colour baggage nothing objectionable was found except his personal effects. Thereafter, Mehroon colour check in baggage was searched and when inner lining of the bag was removed it was found containing four black coloured packets/pouches and on opening white colour powdery substance was recovered. On testing by the IO, the same was found to be narcotic drugs and after weighing the substance the weight of the same was found to be 4Kg 047 Grams. All the four packets were kept in a container, secured with custom seal and wrapped with white cloth and sealed with the seal of custom. PW9 identified his signatures on notice under section 50 NDPS Act Ex. PW5/A, notice under section 102 Customs Act Ex. PW5/B, documents Ex. PW5/C, Ex. PW5/D, Ex. PW5/E, Ex. PW5/U, Ex. PW5/I, Ex. PW5/J, Ex. PW5/K, Ex. PW5/F, Ex. PW5/N, Ex. PW5/Q and Ex. PW6/A. Later on, he was called by the IO and he had tendered his statement under section 67 NDPS Act Ex. PW1/C. Statement of the accused Page no. 15 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan
13. After the examination of the prosecution witnesses, prosecution evidence was closed and statement of accused was recorded under section 313 Cr.P.C. wherein he denied all the incriminating evidence was put to him and he stated that he has been falsely implicated in the present case and that recovery was planted against him. He further stated that Customs official demanded money from him and on his refusal they implicated him in false case.
14. I have heard the submissions of Ld. SPP for the Customs, the accused and his counsel and have perused the record.
ARGUMENTS OF PROSECUTION:
15. Sh. Pramod Bahugana, 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 carrying a maroon color bag having 4847 grams of Heroine in commercial quantity, which he imported into India illegally and thus he is liable to be punished for the offences committed by him.
ARGUMENTS OF DEFENCE:
16. On the other hand, Ms. Nidhi Kalia, Ld. Counsel for the accused from the office of Legal Aid Defence Counsel System submitted that accused has been falsely implicated Page no. 16 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan in the present case and he has no concern with the alleged recovery of the heroin. He further submitted that the alleged bag wherefrom the heroin was recovered does not belong to accused. Ld. Defence Counsel argued that provision 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.
17. 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.
18. The prosecution has to prove foundational facts of apprehension and recovery of contraband from the possession of accused Yoganathan beyond reasonable doubt prior to raising of presumption under section 35 and 54 NDPS Act.
19. The NDPS Act is divided into VI Chapters accommodating 83 Sections out of which Chapter V outlines the procedure to be followed by the officers appointed for the implementation of the various provisions of the Act. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned officials so Page no. 17 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan that laxity on the part of the investigating authority is curbed.
20. Section 54 of NDPS Act places burden of proof on the accused as regards the possession of the contraband to account for the same satisfactorily but the statutory presumptions under Section 54 of the NDPS Act must not be mechanically invoked. Courts must scrutinize the totality of evidence-- testimonies of official witnesses, presence of independent witnesses, chain of custody, forensic results, and the presence or absence of contradictory evidence. Thus, a "cumulative view"
decides whether the contraband truly was recovered from the accused and was indeed illicit. Only if procedural defects jeopardize or cast a serious doubt on the authenticity of the contraband or the fairness of the investigation does the likelihood of an acquittal arise and conviction can stand only if, despite procedural lapses, the overall evidence remains credible. For attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
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21. The court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:
22. The prosecution for proving factum of recovery of contraband from the bag carried by accused Yoganathan has relied upon the testimony of PW5 ACO Umesh Jayas and the panch witnesses PW8 Sharif Nat and PW9 Mukesh Kumar.
23. PW5 ACO Umesh Jayas deposed that the accused Yoganathan Jaganathan arrived by Ethiopian Airlines at T-3 IGI Airport from Addis Ababa. Passenger Manifest of Flight no. ET686 Ethiopian Airlines Ex. PW2/M shows the list of passengers who travelled in the said flight on 01/02.08.2022 which also includes the name of accused herein. Copy of the passport of the accused Mark L shows the date of stamping at Republique De Cote D'Ivoire is 01.08.2022 and stamping date at Delhi Airport is 02.08.2022 showing arrival of the accused in India. It has further been deposed that PW5 intercepted the accused at exit gate after he had crossed the green channel and the accused was carrying one blue color trolley bag, one maroon color trolley bag and baggage tags of both the bags bearing tag no. ET 27-19-62 and ET 27-19-63 have been duly proved as Ex. PW5/G and Ex. PW5/H and the name of accused Yoganathan Jaganathan is typed on the Page no. 19 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan baggage tags which establishes on record that both the bags belonged to none other than the accused Yoganathan. There is nothing in the cross-examination of PW5 or any other witness to dispute the arrival of accused into India on 02.08.2022 with blue color and maroon color trolley bag having baggage tags and the third green color handbag without any tag. Even in his statement u/s 313 CrPC, the accused has admitted that he arrived in India on 02.08.2022 and was carrying blue color bag with baggage tag ET 27-19-62 and maroon color bag with baggage tag no. ET 27-19-63.
24. PW5 asked the accused if he was carrying any contraband/prohibited item to which he replied in negative. The accused was then diverted for x-ray examination of his baggage during which some suspicious images were observed in the maroon bag and thereafter PW5 took the accused to the customs preventive room and called two independent witnesses. PW8 Sharif Nat and PW9 Mukesh Kumar, the independent witnesses, also stated that they joined the investigation as independent witness.
25. PW5 stated that accused was given notices u/s 50 NDPS Act and Section 102 Customs Act for taking personal search but the accused refused to be searched in presence of magistrate or gazetted officer, however, nothing was recovered from personal search of accused Page no. 20 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan but on searching the check-in trolley bag, 4 black color packets were recovered from the specially made cavities in the base of the maroon bag which contained 1225, 1175, 1230 and 1217 grams respectively of white powdery substance. PW5 tested the substance with the help of field drug testing kit and the same was positive for Heroin.
26. The manner of recovery and testing of contraband is also corroborated through testimony of PW8 and PW9 who also stated that the inner lining of maroon color bag was removed and it was found to contain four black color packets/ pouches from which white powdery substance was recovered and tested by the IO with the help of drug testing kit and the said powder was a narcotic drug. Thereafter the four packets were weighed and then kept in a container and sealed.
27. Both the panch witnesses in their examination described thoroughly about the recovery and seizure proceedings and also gave description of the bags. Their cross-examination does not in any way appear to dislodge their presence and factum of being a witness to the proceedings of recovery at spot. Therefore, as far as the factum of recovery and testing of contraband at the spot is concerned, all the witnesses duly corroborated the said fact and nothing material came in their cross-examination to create dispute over the said fact. The factum of recovery of heroin from maroon color bag and its testing is duly Page no. 21 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan proved through all these witnesses which is corroborated through CRCL report (Ex.P1).
Discussion on the point of compliance of Section 50 of NDPS Act.
28. Another argument raised by Ld. Counsel for accused is with respect to Section 50 NDPS Act that despite refusal, the accused was required to be searched before magistrate or gazetted officer, however, the search was not conducted in presence of magistrate or gazetted officer and this is non- compliance of section 50 NDPS Act (reliance placed upon Sumit Rai @ Subodh Rai Vs. State CRL.A. 578/2017 dated 29.07.2019, Arif Khan Vs. State of Uttarakhand AIR 2018 SC 2123, Dilip Vs. State of MP (2007) 1 SCC 450, State of Rajasthan vs Parmanand (2014) 5 SCC 345 and State Vs Vicky CRL.L.P. 143/2017 dated 13.09.2019).
29. Section 50 NDPS Act lays down the conditions under which search shall be conducted and section 50 reads as :-
"50. Conditions under which search of persons shall be conducted:- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
Page no. 22 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior."
30. As per prosecution case, after apprehension of the accused Yoganathan, he was served with the mandatory notice under section 50 of the NDPS Act and only after his refusal to avail his legal right to be searched before a Gazetted Officer or a Magistrate, his search was carried out. However, during cross-examination of IO/PW5, the defence counsel raised defence and gave suggestions to the witness that the accused was forced to sign on the notice u/s section 50 NDPS Act and that the accused was not apprised that under Section 50 NDPS Act, he has the legal right to be searched only before a Gazetted Officer and in Page no. 23 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan his statement recorded under Section 313 Cr.P.C., accused has denied having been served with any such notice.
31. In view of the said denial of the accused, it is to be seen whether or not compliance of section 50 of the NDPS Act was properly made before search of the accused.
32. PW5 in his deposition categorically stated that he served notice under section 50 of NDPS Act on the accused and stated that he apprised the accused regarding his legal rights, as mentioned in the notice under section 50 NDPS Act. Testimony of PW5 on this aspect is reproduced as under :
"Thereafter, I served upon the accused two notices i.e. u/section 50 NDPS Act and Section 102 Customs Act and informed the accused that his personal and baggage examination is to be conducted, and it is his legal right to be examined before Magistrate or Gazetted Officer of Customs."
33. The witness was cross-examined as regards notice under section 50 NDPS Act and he deposed "It is correct that the word 'nearest' Magistrate or Gazetted Officer is not written in the notice Ex. PW5/A. It is correct that endorsement made by the accused in Ex. PW5/A is in typed form. It is wrong to suggest that the accused was forced to sign on the notice u/s section 50 NDPS Act."
Page no. 24 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan
34. In State of Punjab v. Baldev Singh, Constitution Bench of the Supreme Court addressed and harmonised the inconsistencies in the judgments as laid down by different Benches with regard to the ambit and scope of Section 50 and it was held as :
"24. ... it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate. The failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so....
32. ... The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible -- it cannot be disregarded by the prosecution except at its own peril. (emphasis supplied)"
35. Similarly, in Vijaysinh Chandubha Jadeja vs State of Gujarat, another Constitution Bench unanimously reiterated the position as laid down in Baldev Singh case and further clarified the persisting confusion concerning the procedure to be followed for searches made under Section 50 and held that the empowered officer is bound to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate. (emphasis supplied) The Bench further held that:
Page no. 25 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan "...it is not necessary that the information required to be given should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so, required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.(emphasis supplied)"
The Court also observed that:
"32. ... in order to impart authenticity, transparency, and creditworthiness to the entire proceedings, in the first instance, an endeavour should be made to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
36. The law as laid down in Baldev Singh case and Vijaysinh case was thereafter followed in several judgments including in Myla Venkateswarlu v. State of A.P., Ashok Kumar Sharma v. State of Rajasthan, State of Rajasthan v. Parmanandand, Sekhar Suman Verma v. Narcotics Control Bureau.
37. Recently, in Criminal Appeal no. 4931 of 2024, arising out of SLP(Cr.L) No. 1173 of 2024 titled State of NCT of Delhi Vs Mohd. Jabir delivered on 2 December, 2024, it is held by the Hon'ble Supreme Court :
"The provision vide sub-section (1) mandates that when an officer duly authorized under Section 42 is about to search a person under the provisions of Section 41, 42 or 43, he shall, if the person about to be searched so requires, take the person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Page no. 26 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan Magistrate. It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression "nearest" refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word "unnecessary delay" and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision."
38. Thus, it becomes clear from the ratio of the aforementioned case laws that the absence of the word nearest will not make much difference if the accused was otherwise informed of his legal right to be searched before a magistrate. Even the fact that the consent of the accused is not recorded in his own handwriting will not make the slightest difference if it is established from record that the accused was made aware of the option to be searched before a Magistrate or Gazetted Officer.
39. Adverting to the facts of this case, there is nothing on record to disprove the fact that the notice u/s 50 NDPS Act was duly served upon the accused and that his refusal was taken upon the same. The deposition of PW-5 finds due corroboration by the deposition of panch witnesses PW-8 and PW-9 as far as informing the accused about his legal rights and serving of notice under Section 50 NDPS Act is concerned. Similar is the case with regard to service of notice u/s 102 Customs Act and informing the accused about his legal right to be searched before a Magistrate or Page no. 27 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan a Gazetted Officer. No questions whatsoever has been asked to PW5 regarding any violation done in the manner of serving notice upon the accused or in informing legal rights to the accused. Further, the defence has not been able to show as to what prejudice is caused to the accused by omission of the word 'nearest' or by recording the consent of the accused in typed form and not in his own handwriting. It is also to be noted that counsel for the accused took the defence that his signatures were taken forcibly on the notices, this itself goes to show that the notice was served on the accused.
40. It is also be noted that from the bodily search of the accused, no contraband was recovered. The contraband (heroine) was found in the mahroon color trolley bag being carried by the accused and as regards recovery from bags, briefcase etc being carried by a suspect, it has been observed by the Hon'ble Apex Court that the provisions of section 50 of NDPS Act do not apply to recoveries other than those made from the person of the accused.
41. In the present case, PW5 Umesh Jayas, PW8 Sareef Nat and PW9 Mukesh Kumar have duly proved the service of mandatory notice under section 50 of the Act (Ex. PW5/A) on the accused and refusal of the accused to exercise his legal right to be searched before a Gazetted Officer or the Magistrate. Therefore in my opinion, the Page no. 28 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan requirement of Section 50 (1) of the Act has been duly complied with by the prosecution.
42. In judgment titled as Innocent Vs. State Crl.A. 139/2017 dated 14.01.2020, Hon'ble Delhi High Court held as under:
"In view of the decisions as mentioned above, it is no longer res integra that it is mandatory to comply with section 50 of the NDPS Act. There is also no ambiguity as to manner in which Section 50 of the NDPS Act is required to be complied. Plainly, there is no requirement to conduct the search in the presence of a Magistrate or Gazetted Officer, if the person proposed to be searched did not so desire, after being informed of his right in this regard. The words "if such person so requires" as used in section 50 of the NDPS Act make it amply clear that the person to be searched would be taken before a Magistrate or a Gazetted Officer, only if he so requires."
43. Therefore, in present facts and circumstances it cannot be held there is non compliance of section 50 as accused himself refused the option to be searched before gazetted officer or magistrate. During the course of cross- examination of prosecution witnesses, no substantial question or suggestion was put forth in this aspect. The accused has scribed the same and signed the same. Even otherwise section 50 is not applicable as the recovery is effected from bag not from personal search.
PW8 Sarif Nat and PW9 Mukesh are independent or stock witnesses.
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44. Ld. counsel for accused vehemently argued that PW8 and PW9 are not at all independent witnesses and are stock witnesses. Ld. Counsel submits that both these witnesses are found to be almost illiterate but have given statement in very refined manner which itself suggests that these are stock witnesses and not independent witnesses.
45. The joining of both these witnesses in proceedings is corroborated by other custom officials. Both these witnesses seem to be semi literate and of a very humble background. Their testimonies were consistent and unshaken. Both these witnesses were thoroughly cross- examined, and from their cross-examination it cannot be inferred that they were not present at IGI Airport Customs Preventive area at relevant time. Moreover, despite detailed cross-examination, Ld. Defence counsel has not been able to impeach the credit of any of the two panch witnesses. There is nothing in testimony of these witnesses or other custom officials from which it can be inferred that these witnesses are not independent. 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. Merely on the basis of fact that they have also been joined as a witness in other cases, cannot, in the absence of any contradiction, be considered as a circumstance to infer that they are not eligible or Page no. 30 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan independent witnesses. Therefore the submissions that the testimony of PW8 and PW9, cannot be relied upon does not hold any ground and both these witnesses are found to be independent witnesses and their testimony duly corroborated the testimony of custom officials over the recovery and apprehension of accused in the manner relied by prosecution.
46. 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 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."
47. The present case is a case of recovery of huge quantity of Heroin. It is not possible to plant such a huge quantity upon the accused. Moreover, there is no reason to falsely implicate the accused. In the case of 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 Page no. 31 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan 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."
Probative value of statement of accused u/s 67 NDPS Act
48. The prosecution further relied upon the statement of accused under section 67 NDPS Act. As far as the admissibility of said statement is concerned, Apex court in case titled Ram Singh Vs Central Bureau of Narcotics 2011(11) SCC 347 after relying upon judgment of Apex court in case titled as Kanhaiya Lal Vs UOI, held that if the confessional statement u/s 67 are found voluntary then they could form the basis of conviction, but because of the difference in view, the later Bench of Apex Court in case titled Tofan Singh Vs State of Tamil Nadu 2013(16) SCC 31 referred the matter to the larger Bench. Delhi High Court in case titled Raphael vs Devender Singh (Intelligence Officer) (Directorate Of Intelligence Officer) Crl. Appeal No. 1394/2013 dated 24.05.2015 held that "it is trite that a statement under Section 67 of the NDPS Act is admissible in evidence and can be considered by the Court against the accused. It is also settled law that if the same is found to be made voluntarily, then the same can even be made the sole basis of conviction of accused. However, if the same is subsequently retracted by the accused then such a statement cannot be made the sole basis of conviction of accused and independent Page no. 32 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan corroboration is required." Apex court in case titled as Mohd. Fasrin Vs. State Crl. Appeal No. 296/2014 dated 04.09.2019 held that even if confessions made to investigating officers are held to be admissible under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. Thus the law till today is that the statement under section 67 is admissible however if it is retracted then the court cannot act upon it without any corroboration. Furthermore, before acting on the statement, the court has to satisfy whether it is voluntary and accused was apprised of their right that it could be used against them. Therefore, the conviction cannot be maintained merely on the basis of confessional statements under section 67 but it could be used for the purpose of corroboration with other evidence on record.
49. Accused Yoganathan in his statement u/s 67 NDPS Act admitted that he was apprehended with the bag containing contraband however, he stated that the bag was handed over to him but he did not know the contents of the said bag. In his statement under section 313, accused Yognathan did not say anything except that he has been falsely implicated by the customs officials as he refused to pay them money demanded by custom officials. Apart from this, accused did not raise any other defence but that Page no. 33 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan too is a lame defence as the accused himself admitted in his statement under Section 313 CrPC that he came to India with the mahroon color trolley bag. Thus, the defence as laid by accused does not appear to be at all credible and as such the statement of accused Yognathan despite retraction could be used as corroboration.
50. Ld. Defence counsel argued that there is tampering of case property in the present case and that the chain of custody has not been properly proved. He also argued that the samples which were sent to the CRCL were not in the sealed condition and was tampered with.
It is a matter of record PW-6 Ravi Kumar deposed that on 02.08.2022, PW-5 ACO Umesh Jayas deposited the case property i.e. 04 packets containing narcotic substance and the concealing material duly sealed with Customs Brass Seal and in sealed intact condition and the same was received by PW-6 vide entry in the Godown Register at serial no. 291/2022 which is also mentioned on the inventory of seized goods Ex. PW5/K. As per his further deposition, he took out the case property from Godown on 08.09.2022 and produced the same in the Court of Ld. M.M. for sampling proceedings and thereafter, took the safe custody of the representative samples marked SO1 to SO4 and SD1 to SD4 and the remaining case property and he further deposed that the case property was not tampered with till it remain in his custody. It is clear from the testimony of PW-6 that the case property was deposited in Page no. 34 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan the customs godown by the IO on the same day immediately after it was seized and there was no tampering of the case property till its production before the court of Ld. M.M.
51. Not only this, the case property remained in sealed condition and safe till it was deposited at CRCL. Ld. SPP rightly submitted that sample marked SO1, SO2, SO3 and SO4 was sent to CRCL through PW-4 ACO Mohd. Sajid who was authorized by PW-2 vide letter Ex. PW2/B to deposit the sealed samples with CRCL and receipt of same issued by CRCL which was Ex. PW-4/A in this regard. Ld. Defence counsel conducted thorough cross examination of PW-4 but nothing adverse could be elicited during the cross examination of PW-4. The CRCL Report has been duly admitted by the accused vide his statement dated 03.08.2024 u/s 294 C.r.P.C., as Ex. A-3. As per the CRCL Report, each of the four samples were found to be sealed with three lac seals and received in sealed intact condition and the sample seal tallied with the fascimile of the seal as given in the test memo. It proves that samples were in sealed condition when received in the laboratory as well as when tested by chemical examiner in the laboratory. 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 Page no. 35 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan of case property with official is duly proved and does not point regarding tampering. So, this argument of Ld. Defence counsel does not hold water.
52. Further, as per the report the samples were subjected to chemical, chromatographic and spectroscopic examination and each of the 04 samples tested positive for 'Diacetylmorphine (Heroin)' which shows that the drug which was carried by the accused Yoganathan in his Maroon colour trolley bag was Heroin which he had imported into India illegally.
53. The accused has been charged in the present matter for the offence under section 21(c) and 23(c) NDPS Act. The stringent provisions are provided under that law qua punishment especially in the cases where 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 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 tampering with the record or the Page no. 36 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan contraband. The accused has himself admitted that the mahroon color trolley bag was given to him by some person to carry the same to India. All the discussion shows that he was in conscious possession of bag containing contraband.
54. The accused denied the entire prosecution case 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 tampered with. The case property and samples were also produced in the court which were duly identified.
55. In the instant case all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of providing 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.
56. On considering the facts available on record, the document, testimony of witnesses, after detailed scrutiny, this court holds that prosecution has proved its case beyond any shadow of doubt. There remains no doubt that accused was found in conscious possession of commercial quantity of Heroin and committed offence as Page no. 37 of 38 SC no. 56/2023 Customs Vs Yoganathan Jaganathan prescribed under section 21(c) of NDPS Act and further the accused was trying to import the said commercial quantity of contraband in India and committed offence as prescribed under section 23(c) of NDPS Act, hence, accused is held guilty for the offence committed by him and he is convicted under section 21(c) read with section 23(c) of NDPS Act.
57. 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 MANU by MANU GOEL KHARB GOEL Date:
2025.04.29 KHARB 17:56:54 +0530 Announced in the open Court today i.e.29.04.2025 (Manu Goel Kharb) Special Judge (NDPS)-02 Dwarka Courts, New Delhi Page no. 38 of 38