Delhi District Court
Sc No. 441099/2016 Custom vs . Mahboobsubharani Mohd. Arif & Anr. ... on 8 May, 2018
IN THE COURT OF AJAY GOEL, ADDL. SESSIONS
JUDGE-SPECIAL JUDGE (NDPS), DWARKA COURTS,
NEW DELHI.
Sessions Case No. 441099/2016
U/s: 8/22(c)/23/28/29 NDPS Act
Department of Customs
IGI Airport, New Delhi
Through Sh. Babu Lal,
Air Customs Officer,
IGI Airport, New Delhi. ....... Complainant
VERSUS
1. Mahaboobsubharani Mohammed Arif,
w/o Sh. Mohammed Arif,
R/o Old No. 14, New No.112,
Sastri Nagar, Tondiarpet,
Chennai-600081.
2. Syed Abdul Rahman Sait
(Proceedings against him already stood abated)
........ Accused
Date on which the complaint was filed :16.10.2012
Date of assignment to this court: :19.07.2017
Date on which judgment was reserved :02.05.2017
Date on which judgment was pronounced :08.05.2018
JUDGMENT:
CASE OF PROSECUTION:
1. The case of the prosecution is that on the basis SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 1/84 of intelligence received from DRI to the effect that two passengers namely Smt. Mahboobsubharani Mohammed Arif and Syed Abdul Rahman Sait have to board by Malaysian Airline Flight No. MH-191 from Delhi to Kuala Lumpur and further from Kuala Lumpur to Johor Bahru and both were carrying shipment of ketamine/ephedrine. Both the persons were identified with the help of Ms. Visakha Arya (ground handling staff of Malaysian Airlines in the transit area), as they were waiting to board the flight on 18.04.2012 after their immigration and security clearance, identities of both the accused were established through their Indian Passport No. J 6630062 dated 04.07.2011 and Passport No. J 4715764 dated 12.04.2011, both issued by Chennai respectively. Since, both the accused persons were speaking in Tamil Language, so, Sh. Gobinath S, was called by Customs Department as he was acquainted with Tamil SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 2/84 Language. Both the accused persons were asked whether they were carrying any Indian/Foreign currency or any contraband goods, to which they replied in negative but they appeared to be nervous and their reply was not satisfactory and as a result of which, they were taken to Customs Room situated in the departure hall for examination of their baggage and persons. Two panch witnesses were also called and in their presence, notice under Section 102 of the Customs Act and 50 of the NDPS Act, 1985 was served upon both the accused and they were apprised about their legal rights to the effect that if they want to examined themselves and their baggage in the presence of Magistrate or Gazetted Officer, to which they replied in writing on the said notice and put their signatures in token of having and accepted that they do not want presence of Gazetted officer or Magistrate and any Customs Officer can SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 3/84 examined their baggage and can also take their personal search. Thereafter, on query, both the accused disclosed that they were carrying two checked in baggage, one greenish colour stroller bag and one Grey (Slati) colour stroller bag having baggage Tag No. EYCL No. 0232600023 & EYCL No. 0232600024 respectively and two hand baggages and they produced their checked in baggage stub No. EYCL 0232600023 and EYCL No. 0232600024 which were in the name of accused No.1. Customs officer called the aforesaid checked in baggages of both the accused from the Malaysian Airlines. Thereafter, Airline staff produced the same having name of Mrs. Mohammed Arif, accused No.1. Both the accused persons identified aforesaid baggages and their baggage tags were found tallied with the baggage claim stubs. Both the accused persons were offered their personal search but denied for the same and SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 4/84 thereafter, Customs officer started checking the baggages of the accused persons. On checking the bag, having baggage Tag No. EYCL No. 0232600023, it was in the name of accused No. 1, thereafter, baggage was examined and it was found containing 30 sarees and one black packet concealed in the false bottom of the bag was also found. On examination of the said black colour packet by tearing the outer layer of black colour fabric, it was observed that there was layer of carbon on the plywood and in between the plywood sheets, a polythene bag containing white crystal powder was found and on weighing it was found to be of 5 kg, the same was checked by taking a small quantity from the same with the help of drug testing kit and found to be positive for Drug/Ketamine. Thereafter, the second bag was also checked and it was having baggage Tag No. EYCL 0232600024, which was SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 5/84 issued in the name of accused No. 1, thereafter, baggage was examined and it was found containing 30 sarees and in the false bottom of the aforesaid baggage, one packet concealed therein was also found and on tearing the outer layer of black colour fabric of said packet, it was observed that there was a layer of black carbon on the plywood and between two sheets of plywood, a polythene bag containing white crystal powder was found and it was found 5 kg in weight. On testing the said powder by drug testing kit, it was found positive for drug/ketamine. From both the baggage, three representative samples of 25 gms each from each baggage were drawn, kept in small polythene pouches and thereafter, kept in brown paper envelopes separately and Marked as A1,A2,A3, B1,B2 and B3 and sealed with Customs seal No. 6 with the signatures of signatories to Panchnama. Thus, total 10kg, white crystal powder SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 6/84 was recovered from both bags. Both accused failed to produce any evidence documentary or otherwise for lawful possession and export of 10 kg crystal white powder/ketamine, the same was seized alongwith concealing material under the provisions of the Section 43 of the NDPS Act read with Section 42 of the NDPS Act, 1985 and Section 110 of the Customs Act, 1962. Thereafter, test memo in triplicate were prepared on the spot. The remaining contraband weight to be 9.850kg was also seized and sealed with Customs Seal No. 6 over a paper slip containing signatures of signatories to panchnama, the value of ketamine is to be estimated about 3,00,000/- per kg. Thereafter, greenish colour stroller bag was put inside the grey colour stroller bag alongwith packing material and then wrapped and sealed with the Customs Seal No.6 over a paper slip containing signature of the signatories of SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 7/84 panchanama.
2. During the course of enquiries, both accused revealed that recovered contraband of white crystal powder was handed over to them by person namely Nasir alongwith E-Ticket Nos. 2329551269243 and 2329551269242.
3. On checking of hand bag of accused No. 1, it was found containing one old and used Nokia Mobile IMEI 358316/03/887358/2 having Sim No. 9941224352 and Sim Sr. No. 899141000002981149 of pax-1, currency notes 50X30=1500 Malaysian ringgit of pax 1 and used personal effects. On checking of hand bag of accused No.2, it was found containing E-Ticket No. 2329551269243 of Sh. Syed Abdul R.S. Nainamohammed, E-ticket No.2329551269242 of Mrs. Mahaboobsubharani Mohammed Arif of Malaysian Airline from Delhi to Kuala Lumpur and SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 8/84 Kuala Lumpur to Johor Bahru, ticket of Mrs. Mahaboob Subharani No. XCNYAH from Chennai to Delhi, ticket of Sh. Syedabdul Rahman No. BCR1BB from Chennai to Delhi, two boarding cards for the flight from Chennai to Delhi dated 17.04.2012, two boarding cards for the flight from Delhi to Kuala Lumpur dated 18.04.2012, two boarding cards for flight Kuala Lumpur to Johor Bahru, two Stub Tags bearing Sr. No. 0232600024 and 0232600023 and personal effects i.e. used clothes etc. All the aforesaid items/articles except the personal effects/clothes were sealed by the Customs Seal No.6 under the signatures of the signatories of panchanama.
4. On 19.04.2012, accused No.1 was summoned by Sh. H.K. Singh, ACS under Section 67 of the NDPS Act, she appeared and tendered her voluntarily statement dated 19.04.2012 U/s 67 of NDPS Act, under which she admitted recovery of contraband SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 9/84 from her two bags and seizure of aforesaid recovered substance. The abovesaid statement was reduced into writing by Ms. Vishakha in the presence of Gobinath S. the Interpreter of Tamil Language.
5. On 19.04.2012, accused No.2 was also summoned by Sh. H. K. Singh, ACS under Section 67 of the NDPS Act, he appeared and tendered his voluntarily statement dated 19.04.2012 U/s 67 of NDPS Act, under which he admitted recovery of contraband from his two bags and seizure of aforesaid recovered substance. He further deposed that the recovered substance was given to him by one Nasir for the purpose of taking the same to Thailand and he was having the knowledge about the recovered substance and he had already taken similar type of consignment to Thailand on his earlier visits and same were also given by Nasir. The abovesaid statement was written by accused no.2 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 10/84 himself in Tamil Language and same was translated in English by Sh. S. Gobinath, the Interpreter of Tamil Language.
6. During the course of enquiries, Ms. Vishakha Arya, Sh. Parveen, Sh. S. Gobinath, Sh. Shashi Singh Khetwal (duty manager of Malaysian Airline, IGI Airport) were summoned by Sh. H.K. Singh under Section 67 of the NDPS Act and they tendered their respective voluntarily statement as what role they played during whole investigation in their presence.
7. On 19.04.2012, hotel M/s Gold Inn, where both the accused persons were stayed was also searched and panchnama to this effect was made, statement of Sh. S. R. Oberoi, owner of hotel was recorded under Section 108 of the Customs Act.
8. The customs seal No.6 was deposited with Sh. Pankaj Kr. SDO(A), case property, samples, concealing materials, personal effects and jamatalashi's were SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 11/84 detained vide DR Nos.06001, 06002, 06003, 06004, 06005, 06006, 060012 & 060013 all dated 19.04.2012 and same was deposited by Sh. Raj Kumar seizing officer Sh. Pankaj Kumar, SDO(A) vide SDO(A) register Entry No. 3120 dated 19.04.2012, both the accused persons were arrested under Sections 8/22(c)/23/28/29 of the NDPS Act, 1985 on 19.04.2012 and intimation of their arrest was communicated. Thereafter, on 20.04.2012, both the accused persons were medically examined vide MLC No. 63421 & 63422, intimation of seizure as required under Section 57 of the NDPS Act was conveyed to Sh. H. K. Singh by Sh. Raj Kumar, intimation of arrest of both accused as required under Section 57 of the NDPS Act was prepared by Sh. Raj Kumar Meena and Ms. Suchita Lokhande jointly and was conveyed to Sh. H. K. Singh, ACS on 20.04.2012. Sh. Satyapal, ACO deposited the samples A1 and B1 alongwith test SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 12/84 memo and forwarding letter in CRCL and obtained the receipt from CRCL issued by Sh. Rajeev Anand, ACE dated 20.04.2012. A letter dated 23.04.2012 was written to CRCL to expedite the process and thereafter, test reports were received alongwith remnant samples and the same were deposited by Sh. Radheshyam, ACO with SDO(A) Sh. T. C. Thakur, entire seized goods, case property, samples and remnant samples were transferred to valuable godown on 07.05.2012. During enquiries from Customs Commissionrate Chennai, it was revealed that both the accused are not residing at their given addresses, verification of passport from the office of Chennai Passport was done, intimation in respect of seizure of substance and about arrest of accused persons were conveyed to the Deputy Director General NCB North Region as well as South region and to Chief Commissioner of Customs, New Delhi. SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 13/84 The call details of Mb. No. 9941225352, 9941847195 and 8608645700 were collected, person with the name of Nasir was searched, whose name was disclosed by both the accused persons but despite best efforts summons could not be served upon him and after completion of investigation, it transpired that in contravention of the provisions of Section 8 of the NDPS Act, both the accused entered into a criminal conspiracy alognwith Nasir for the purpose of possession and export of the recovered ketamine, the complaint was filed against both the accused for the offences punishable under Sections 8/22(c)/23/28/29 of the NDPS Act.
CHARGE:
9. After completion of investigation and inquiries, complainant filed complaint Ex. PW-1/A alongwith documents in the Court. After hearing the SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 14/84 arguments, vide order dated 03.12.2012, charges U/s 8, 22 (c), 23, 28 & 29 of NDPS Act was framed against both the accused by Ld. Predecessor of this Court to which they pleaded not guilty and claimed trial.
10. During the proceedings of the present case, accused No. 2 Syed Abdul Rahman Sait expired on 05.02.2017 in DDU Hospital and thus proceedings against him were abated vide order dated 17.03.2017.
Prosecution Evidence:
11. In support of its case, prosecution had examined following witnesses:
PW-1 is Sh. Babu Lal, ACO. He deposed that in the month of May, 2012, investigation of the present case was assigned to him and after completion of investigation, he filed the present SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 15/84 complaint alognwith list of witnesses and documents and proved the same as Ex.PW1/A. PW-2 is Sh. H.K. Singh, Superintendent, Custom. He deposed that on 18.04.2012, he alongwith other Customs officers were called by Sh. Arun Kumar, the then Addl. Commissioner of Customs, IGI Airport in his office and he went to the office, where Sh. Raj Kumar Meena, Sh. Dipin Singhla, Ms. Suchita Lokhande and two or three more custom officers were already present. He further deposed that there, Sh. Arun Kumar apprised about the information, about passenger Smt. Mahaboobsubharani Mohammed Arif and Syed Abdul Rahman Sait, who had to board by Malaysian Airline Flight No. MH-191 from Delhi Airport to Kuala Lumpur alongwith ketamine/ephedrine and he marked the same to ACS (AIU) with the direction to take appropriate SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 16/84 action to apprehend the aforesaid persons and further deposed about the whole proceedings conducted by him and in his presence by other Customs Officers. He proved the said information as Ex.PW2/A, summon issued to accused no.1 under Section 67 of the NDPS Act as Ex.PW2/A, statement recorded by him of accused No.1 dated 19.04.2012 as Ex.PW2/C, summon issued to accused no.2 under Section 67 of the NDPS Act as Ex.PW2/D, statement recorded by him of accused No.1 dated 19.04.2012 as Ex.PW2/E (in Tamil Language), translate version in English language of statement of accused No. 2 as Ex. PW2/F, summon issued to panch witness Ms. Vishakha Arya dated 19.04.2012 and 08.05.2012 as Ex.PW2/G and Ex.PW2/I respectively, statement of Ms. Vishakha dated 19.04.2012 and 08.05.2012 as Ex.PW2/H & Ex.PW2/J, summons issued to panch SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 17/84 witness Sh. Parveen Srivastava dated 19.04.2012 as Ex.PW2/K and his statement as Ex.PW2/L, summons issued to interpreter Sh. S. Gobinath as Ex. PW2/M and his statement dated 19.04.2012 as Ex. PW2/N, summons issued Duty Manager of Malaysian Airline Sh. Shashi Khetwal as Ex.PW2/O and his statement as Ex. PW2/P, his letter written to Medical Superintendent dated 19.04.2012 as Ex.
PW2/Q and Ex. PW2/R. Detention receipts No. 06001 to 06006, 06012 and 06013 all dated 19.04.2012 as Ex. PW2/R1 to Ex. PW2/R7 (colly), authorization letter of Sh. Satyapal dated 19.04.2012 as Ex.PW2/S, receipt issued by CRCL as Ex. PW2/T, intimation of seizure and arrest as Ex. PW2/U, intimation received from Sh. Raj Kumar Meena and Ms. Suchita Lokhande jointly as Ex. PW2/V, envelope containing CRCL reports and remnant samples as Ex. PW2/W, another small SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 18/84 envelope (which was kept inside the aforesaid envelope) as Ex. PW2/W1, detention receipt No. 06014 dated 29.04.2012 as Ex. PW2/W2, letter written to Nodal Officer Aircel to provide call details of mobile No. 9941224352 and 9941847195 and reminder of aforesaid letter as Ex. PW2/X and Ex. PW2/X1, letter written to Nodal Officer, Idea Cellular mobile company to provide the details of Mb No. 8608645700 as Ex. PW2/X2, letter received from Idea Cellular company as Ex. PW2/X3 and Ex. PW2/X4, Id and call details provided by the Aircel mobile company as Ex. PW2/X5 (colly from pg. no. 125 to 188), reports regarding investigation of addresses of both the accused as Ex. PW2/Y and Ex. PW2/Y1.
PW-3 is Sh. N. K. Gupta, ACO. He deposed that on 19.04.2012, he issued Customs seal No. 6 to Sh. R. K. Meena, ACO, IGI Airport, New Delhi vide SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 19/84 SDO(A) register Entry No. 3114 dated 19.04.2012 and at that time, ACO Sh. Radhey Shyam was also accompanied with ACO Sh. R. K. Meena and he also put his signatures on the entry No. 3114. He further deposed that after completion of his duty hours, he handed over his charge to next coming SDO vide register No. 3118 dated 19.04.2012 and proved entry no. 3113 dated 19.04.2012 as Ex.PW3/A, Entry No. 3114 dated 19.04.2012 as Ex.PW3/B and Entry No. 3118 dated 19.04.2012 as Ex.PW3/C. PW-4 is Ms. Suchita Lokhande, ACO. She is the witness of the panchnama proceedings in the present case. She deposed about the information received by Sh. Arun Kumar about the two passengers namely Smt. Mahaboobsubharani Mohammed Arif and Syed Abdul Rahman Sait carrying narcotics drugs. She further deposed that SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 20/84 during conversation with the aforesaid persons, she noticed that accused understood Hindi and English languages but they were not fluent with Hindi and English language, so, Sh. S. Gobinath, who was acquainted with Tamil Language was called by her staff to interpret the aforesaid persons in their language i. e. Tamil. She has proved the notice under Section 50 of the NDPS Act of the accused Mahaboobsubharani Mohammed Arif as Ex. PW4/A, notice under Section 102 of the Customs Act served to Smt. Mahaboobsubharani Mohammed Arif as Ex. PW4/B, arrest memo of accused Smt. Mahaboobsubharani Mohammed Arif as Ex. PW4/C, her personal search/ jamatalshi as Ex. PW4/D, her MLC as Ex. PW4/E and intimation report under Section 57 of the NDPS Act as Ex. PW2/V. PW-5 is Sh. Satyapal, Superintendent, SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 21/84 Central Excise. He deposed that on 20.04.2012, he was authorized by Sh. H. K. Singh vide authorization letter to deposit the samples A1 and B1 with CRCL alongwith test memo in duplicate. He has deposed that as per instructions and authorization, he met Raj Kumar Meena and collected test memo in duplicate from him, samples Mark A1 and B1 from SDO(A) in intact condition and made his endorsement in SDO(A) register against Entry No.3122 and thereafter deposited the same in CRCL and obtained the receipt and handed over the same to Sh. H.K. Singh. He proved Entry No. 3122 as Ex.PW5/A and receipt of CRCL as Ex.PW2/T. PW-6 is Sh. Raj Kumar Meena, Inspector Customs. He deposed that on 18.04.2012, he was called by Sh. Arun Kumar with other Customs officers in his office and there, he shared the SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 22/84 information received by him about two passengers namely Smt. Mahaboobsubharani Mohammed Arif and Syed Abdul Rahman Sait, who were carrying narcotics drugs and he alongwith other Customs officer enquired the matter and he further deposed about the proceedings conducted by him and other customs staff member in his presence. He proved said information as Ex. PW2/A, notice under Section 50 of the NDPS Act and notice under Section 102 of the Customs Act, which were served upon the accused Syed Abdul Rahman Sait by him as Ex. PW6/A and Ex. PW6/B and notice under Section 50 of the NDPS Act and notice under Section 102 of the Customs Act, which were served upon the accused Mahaboobsubharani Mohammed Arif by Ms. Suchita Lokhande as Ex.PW4/A and Ex. PW4/B, panchnama dated 18.04.2012 which was concluded on 19.04.2012 as Ex. PW6/C, a receipt SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 23/84 of hotel Gold Inn issued in the name of accused No.2 as Ex. PW6/D, DR No. 06001, 06002 as Ex. PW2/R1 and Ex. PW2/R2, DR No. 06003, 06004, 06005, 06006, 06012, 06013 as Ex. PW6/E, Ex. PW6/E1, Ex. PW6/E2, Ex. PW6/E3, Ex. PW6/D4 and Ex. PW6/E5, arrest memo of accused Syed Abdul Rahman Sait as Ex. PW6/F, his jamatalashi memo as Ex. PW6/F1, his MLC as Ex. PW6/F2, intimation report under Section 57 of the NDPS Act as Ex. PW2/U, intimation report prepared by him alongwith Ms. Suchita Lokhande under Section 57 of the NDPS Act about seizure and arrest as Ex. PW2/B, test report as Ex. PW6/G and Ex. PW6/H, verification report regarding passport of accused persons as Ex. PW6/I, air ticket of Mahaboobsubharani as Ex. PW6/J, boarding passes of accused No.1 as Ex. PW6/J1 and Ex. PW6/J2, air ticket of Sayed Abdul Rahman as Ex. PW6/J3, his SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 24/84 boarding passes as Ex. PW6/J4 and Ex. PW6/J5, two baggage bearing tag No. EOICL0232600023 and EOICL0232300024 of accused Mahboobsubharani as Ex. PW6/J6 and Ex. PW6/J7, her hand baggage as Ex. PW6/J8 ad Ex. PW6/J9, passenger manifest of concerned airline as Ex. PW6/J10, letter written in respect of off loading of both the accused as Ex. PW6/J11, copy of passport of both the accused as Ex. PW6/J12 and Ex. PW6/J13, departure cards of accused as Ex. PW6/J14 and Ex. PW6/J15, travel documents of both the accused as Ex. PW6/J16 and he also proved the case property.
PW-7 is Sh. B.S. Dhankar, Superintendent Central Excise. He deposed that on 19.04.2012, he visited Gold Inn, Paharganj, New Delhi for the purpose of enquiries of the present case and where he met with Sh. Rajiv Oberoi, the owner of the hotel and conducted enquries. Panchnama in SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 25/84 respect of search of the room no.2 of the said hotel was prepared. He proved the panchnama as Ex.PW7/A and voluntarily statement of Sh. Rajiv Oberoi under Section 108 of the Customs Act as Ex.PW7/B. PW-8 is Sh. Arun Kumar, Addl. Commissioner, Customs. He deposed that on 18.04.2012, at about 7.30/8 p.m., he had received one sealed envelop from DRI, DZU, New Delhi and the found containing information provided by Sh. Alok Gupta, the Addl. Director, DRI, DZU, New Delhi. He further deposed that as per information, two carriers of a gang namely Ms. Mohammed Arif Mahboob Subharani and Mr. Syed Abdul Rahman Sait (PNR K4T2C) travelling by Malaysian Airlines Flight No. MH-191 to Johor Baru scheduled to depart at 2300 hours on 18.04.2012 and they might be carrying narcotic drugs concealed in their bags. Thereafter, SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 26/84 he called Sh. Dipin Singla, Sh. H.K. singh, Sh. R. K. Meena and Ms Suchita Lokhande and apprised about the aforesaid information and marked the same to Air Custom, Superintendent (AIU) to take necessary action and sent the information to Sh. V. K. Goyal, the then Commissioner Customs, IGI Airport, New Delhi in writing as he left the office and proved said information as Ex. PW2/A, letter dated 19.04.2012 written to Sh. V. K. Goyal as Ex.PW8/A. PW-9 is Sh. Radhey Shyam, Superintendent Central Excise. He deposed that on 29.04.2012, test report alongwith remnant samples Mark A1 and B1 were received from CRCL and were taken on record and were deposited with SDO (A) Sh. T. C. Thakur in intact condition sealed with seal of CRCL. He further deposed that both sealed samples were put in envelope and sealed with SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 27/84 Customs Seal No.6 and deposited with SDO (A) Sh. T. C. Thakur. He has proved envelopes of remnant samples and test reports received from CRCL as Ex. PW2/W, Ex. PW2/W1, Ex. PW6/H and Ex. PW6/G respectively, detention receipt No. 06014 dated 29.04.2012 as Ex. PW2/W2, register entry No. 3171 dated 29.04.2012 for the purpose of sealing the remnant samples as Ex. PW9/A, Entry No. 3172 for depositing the remnant samples as Ex. PW9/B, Entry No. 3173 as Ex. PW9/C regarding deposition of customs seal No. 6 with SDO(A).
PW-10 is Sh. Alok Gupta, Addl. Director, DRI, DZU. He deposed that on 18.04.2012, he received intelligence from reliable sources that Mrs. Mahaboobsubharani Mohammed Arif and Mr. Syed Abdul Rahman Sait is going to Malaysia by flight No. MH-191 on 18.04.2012 with narcotics drugs /ephidrine/ketamine from IGI Airport, New Delhi, SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 28/84 the said information was reduced into writing and conveyed to Sh. Arun Kumar, Addl. Commissioner (Customs), IGI Airport, New Delhi for further action. He proved the said information as Ex.PW2/A, the envelopes used to keep the said information as Ex.PW10/A and Ex.PW10/B collectively. PW11 Sh. Shashi Singh Khetwal, Customder Service Supervisor, Malaysian Airlines. He deposed that on 03.05.202, he received summon under Section 67 of the NDPS Act and on receiving of the same, he tendered his voluntarily statement, wherein he explained the procedure of check in of the passenger with the airlines at the time of their departure and proved his statement as Ex.PW2/P. PW12 Sh. V. K. Goel, Commissioner, Directorate of Publicity and Public Relation. He deposed that on 19.04.2012, he received SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 29/84 information about both the accused persons from Sh. Arun Kumar, the then Addl. Commissioner of Customs that they were going to Malaysia by flight No. MH-191 and suspecting to carry narcotic substance with them. He proved the said information as Ex. PW8/A and his direction on the said information at point C. PW13 Sh. Faiyaz Alam. He deposed that on 19.042012, he alongwith Imamuddin joined the proceedings as panch witness conducted at hotel Gold Inn, Paharganj, New Delhi and proved the panchnama Ex. PW7/A. PW14 Sh. Imamuddin. He deposed that on 19.042012, he alongwith Faiyaz Alam joined the proceedings as panch witness conducted at hotel Gold Inn, Paharganj, New Delhi and he also proved the panchnama Ex. PW7/A. PW15 Sh. Rajiv Oberoi. He is the owner of hotel SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 30/84 Gold Inn situated at 4653-54, Shora Kohti, Main Bazar, Paharganj, New Delhi. He proved the panchnama Ex. PW7/A, copy of guest register as Ex. PW15/A (entry No. 2251 in guest register to the effect of stayed of accused Syed Abdul Rahman on 17.04.2012), copy of driving licence of accused Syed Abdul Rahman as Ex. PW15/B (which he kept as ID proof), one receipt of payment as Ex. PW15/C, his statement as Ex. PW7/B. PW16 Sh. Praveen Srivastava. He deposed that on 18.04.2012, he was called by Mr. Meena and SH. H. K. Singh to join the proceedings of the present case as independent witness and they disclosed about the two passengers destination as Malaysia by flight No. MH-191 and he further deposed about the investigation conducted in his presence by the Customs officers. He proved notice under Section 50 of the NDPS Act and notice SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 31/84 under Section 102 of the Customs Act of Mahaboobsubharani as Ex. PW4/A and Ex. PW4/B, notice under Section 50 of the NDPS Act and notice under Section 102 of the Customs Act of male passenger as Ex. PW6/A and Ex. PW6/B, panchnama prepared by customs officers as Ex. PW6/C, receipt of hotel Gold Inn as Ex. PW6/D recovered from the possession of both the passengers, air tickets, boarding passes, passenger manifest, offloading letter, copy of passports, disembarkation cards, baggage tags, handbag tags of the passengers as Ex. Pw6/J, Ex. Pw6/J1, Ex. Pw6/J2, Ex. Pw6/J3, Ex. Pw6/J4, Ex. Pw6/J5, Ex. Pw6/J6, Ex. Pw6/J7, Ex. Pw6/J8, Ex. Pw6/J9, Ex. Pw6/J10, Ex. Pw6/J11, Ex. Pw6/J12, Ex. Pw6/J13, Ex. Pw6/J14, Ex. Pw6/J15 and Ex. Pw6/J16, air ticket of male passenger as Ex. PW16/A, boarding passes of passengers as Ex. PW16/B, SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 32/84 paper slips as Ex.P1, P2, P3,P4,P5,P7,P9 and P11 and paper slips affixed on the case property during panchnama proceedings as Ex. PW16/C and Ex. PW16/D, summons under Section 67 of the NDPS Act as Ex. PW2/K, his statement was Ex. PW2/L. PW17 Sh. S. Gobinath. He is the interpreter in the present case and he deposed that on 18.04.2012, he was called by the Custom Officers to joined the proceedings at Customs office in departure hall of IGI Airport, where two passengers namely Smt. Mahaboobdsubharani and Syed Abdul Rahman Sait were present and were enquired with the help of him. He made them understand all he proceedings conducted by the Customs Department and proved pachnama Ex. Pw6/C, statement of accused Syed Abdul Rahman Sait under Section 67 of the NDPS Act as Ex. PW2/E (in Tamil), translated version of said statement in SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 33/84 English as Ex. PW2/F, summon issued to him under Section 67 of the NDPS Act as Ex. PW2/M and his statement as Ex. PW2/N. PW18 Dr. Pankaj Ranjan, Medical Officer, Safdarjung Hospital. He deposed that patient Smt. Manhaboobsubharani Mohammed Arif and Sh. Syed Abdul Rahman Sait were examined by Dr. Owais-UI-Nissar and Dr. Mamta Luckwal and proved the MLCs of aforesaid persons as Ex. PW4/E and Ex. PW6/F2.
PW19 Sh. Bhuwan Ram, Chemical Examiner, CRCL. He deposed that on 20.04.2012, two samples Mark A1 and B1 with test memo in duplicate alongwith forwarding letter were produced by one Customs officer Satyapal before him and on 26.04.2012, both the samples were examined him Sh. Rajiv Anand in his presence and found positive for ketamine hydrochloride. He SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 34/84 proved the receipt issued by Sh. Rajiv Anand as Ex. PW2/T, report in respect of sample Mark A1 as Ex. PW6/H and of sample Mark B1 as Ex. PW6/H, resealing of sample Mark A1 and Mark B1 with the seal of CRCL as Ex. PW2/W and Ex. PW2/W1. PW20 Ms. Vishaka Arya. She deposed that on 18.04.2012, some Customs officers approached to her at her counter and inquired about two passengers namely Smt. Mahaboobsubharani Mohammed Arif and Syed Abdul Rahman Sait and she identified them at the request of the Customs Officers and joined the proceedings conducted by Customs Officers. She also deposed that both the said persons understood Hindi and English Language, however, they were not influent with the Hindi or English language. She has proved notice under Section 50 of the NDPS act and notice under Section 102 of the Customs Act served upon SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 35/84 female as Ex. PW4/A and Ex. Pw4/B, notice under Section 50 of the NDPS act and notice under Section 102 of the Customs Act served upon male as Ex. PW6/A and Ex. Pw6/B, hotel receipt as Ex.PW6/D, notice under Section 67 of the NDPS Act served upon female accused as Ex. PW2/B, Ex. PW2/G & Ex. Pw2/I and her statement under Section 67 of the NDPS Act as Ex. PW2/C, Ex. PW2/H & Ex. Pw2/J and she also identifies the case property.
PW21 Sh. Dipin Singla, Deputy Commissioner. He deposed that on 18.04.2012, Sh. Arun Kumar, called him as well as Sh. R.K. Meena, Ms. Suchita Lokhande, Sh. H.K. Singh in his office and shown them a letter received from DRI, wherein information about two passengers namely Mahboobsubharani and Syed Abdul Rahman Sait were written that they might be carrying some SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 36/84 narcotic substance and travel from IGI Airport, New Delhi by Malaysia Airline Flight on 18.04.2012. He proved a letter dated 23.04.2012 as Ex. PW21/A (request to CRCL to expedite the process), a letter dated 29.04.2012 as Ex. PW21/B (request from Joint Commissioner Customs Chennai to expedite the follow up action), letter dated 23.05.2012 addressed to Deputy Commissioner Customs, Chennai to verify the address of Accused No.1 as Ex. PW21/C, letter dated 17.05.2012 addressed to the Regional Passport Office Chennai to provide correct address of both the accused as Ex. PW21/D, letter dated 28.05.2012 addressed to Deputy Director General NCB, New Delhi, wherein information about the booking of present case was communicated to him as Ex. PW21/E and letter dated 28.05.2012 addressed to Deputy Director General NCB, Chennai, wherein information about SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 37/84 the booking of present case was communicated to him as Ex. PW21/F. PW22 Sh. Rajeev Anand, Chemical Examiner, CRCL. He deposed that on 20.04.2012, on the directions of Sh. Bhuwan Ram, he received two samples Mark A1 and B1 from Sh. Satyapal alongwith forwarding letter and two test memos in duplicate and on 26.04.2012, analysis of both the samples was conducted by him under the supervision of Sh. Bhuwan Singh and found positive for ketamine hydrochloride. He has proved the forwarding letter as Ex. PW2/S, receipt issued to Sh. Satyapal as Ex. PW2/T, test report qua sample Mark A1 as Ex. PW6/G, test report qua sample Mark B1 as Ex. PW6/H. PW23 Sh. A. Manimaran, Joint Director, DG Systems, Samrat Hotel. He deposed that as per letter dated 19.04.2012 received from Delhi SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 38/84 Customs, a team comprises of Customs Officers of Chennai Customs was constituted for enquiries of the addresses provided by the Delhi Customs of Naina Mohammad Sayed Abdul Rehman Sait and Mohammad Arif Mahboobsubharani. He proved his report to this effect dated 27.04.2012 as Ex. PW2/Y. PW24 Sh. Pankaj Kumar, Inspector Service TAx. He deposed that on 19.04.2012, Sh. Raj Kumar Meena alongwith another ACO came to him and deposited customs Seal No.6 and entry was made to this effect in SDO(A) register. He has further deposed that Sh. Raj Kumar Meena also deposited case property, samples, concealing material, personal effects and jamatalashi articles through different detention receipts in sealed condition sealed with customs seal No.6 and he made entry to this effect in SDO(A) register. He SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 39/84 proved Entry No. 3119 dated 19.04.2012 as Ex. PW24/A, 3120 as Ex. PW20/B, Entry No. 3121 regarding handing over charge to SDO (A) as Ex. PW24/C. PW25 Sh. B.C. Gaur, Superintendent CPC Cell. He deposed that on 27.08.2012, he had issued summons under Section 67 of the NDPS Act to Sh. Nasir and proved the said summon as Ex. PW25/A. PW26 Sh. Jagdish Chander, SI FRRO. He brought the record of FRRO and proved the departure card in respect of Mahaboobsubharani Mohammed Arif as Ex. PW6/J15 and of Syed Abdul Rahman Sait as Ex. PW6/J14.
PW27 Sh. M. Murali Krishna, Addl.
Commissioner (Audit). He deposed that in
response to the inquiry letter received from Delhi Customs, his staff conducted inquiry and said SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 40/84 inquiry report was forwarded by him to Delhi Customs by letter dated 01.06.2012 and he proved the same as Ex. PW2/Y1.
PW28 Sh. Pradeep Malik, Superintendent GST. He deposed that he received the case property pertaining to this case in sealed condition and he made entry to this effect in godown register. He proved Entry No. 27/12 to 34/12 as Ex. PW28/A (OSR) to the said effect.
PW29 Ms. V. Muthu Lakshmi, Superintendent GST. She deposed that on 20.04.2012, she received the charge from Sh. Pankaj Kumar vide Entry No. 3121 and he handed over her all the goods received by him is sealed condition. She further deposed that during her tenure, sample Mark A1 and Mark B1 were released to Sh. Satyapal for depositing the same in CRCL, New Delhi vide Entry No. 3132. She proved Entry No. SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 41/84 3121 as Ex. PW24/C, Entry No. 3122 as Ex. PW29/A and Entry No. 3124 (regarding handing over charge to another SDO(A)) as Ex. PW29/B. PW30 Sh. Dhiraj Wadhwa, Station Wadhwa, Malaysian Airline. He deposed that both the accused persons were check in with the Malaysian Airline Counter at IGI Airport, New Delhi alongwith their check in baggage and at that time, his staff issued boarding passes to both of them. He proved the boarding passes as Ex. PW6/J1, Ex. PW6/J2, Ex. PW6/J4 and Ex. Pw6/J5 and their baggage tags as Ex. PW6/J6 and Ex. Pw6/J7, their hand baggage as Ex. PW6/J8 and Ex. PW6/J9, E-tickets as Ex. PW6/J and Ex. PW6/J3, flight Manifest/list of the passengers as Ex. PW6/J10, letter dated 18.04.2012 regarding offloading of both the passengers were handed over to the customs as Ex. PW6/J11, record of refund as well as detail of SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 42/84 current management of airline alongwith certificate of Section 65(b) of the Indian Evidence Act as Ex. PW30/A (collectively).
PW31 Sh. S. Ganesh, Senior Superintendent Regional Passport Office, Chennai. He deposed that in compliance of letter received in Regional Passport Office, necessary information alongwith documents was provided by his letter dated 16.07.2012 and he proved abovesaid letter as Ex. PW21/D and Ex. PW6/I. STATEMENT OF ACCUSED:
12. After recording of the testimonies of the aforesaid PWs, the statement of the accused U/s 313 Cr. P. C. was recorded wherein she stated that she is innocent and falsely implicated in the present case. It is stated that her co-accused knew her husband who told her husband that he used to travel abroad to sell SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 43/84 India goods such as saries and he wanted her to accompany him to Malaysia being a lady and she would be able to sell the saries to Tamalian peoples there and she agreed and she did not know what was in the said travel bags as the same belonged to him.
She further deposed that when they were arrested, they were not explained anything as no one present there, who knew Tamil language and she was made to sign some papers without explanation. She further pleaded that she was never in knowledge of or in actual physical or constructive possession of bags which allegedly contained some drug. She wished not to lead Defence evidence.
13. I have heard the submissions of Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs and Sh. Ashwin Vaish and Sh. V. Thomas, Ld. Defence Counsels.
SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 44/84 ARGUMENTS OF PROSECUTION:
14. 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 persons were carrying a bags having 5 Kg of Ketamine each which was concealed in false bottom of bag, however, they were intercepted at Airport and notice U/s 50 of NDPS Act was served upon them and she made her disclosure statement thereby admitting her guilt. Thus she is liable to be punished for the offences committed by her.
ARGUMENTS OF DEFENCE:
15. On the other hand, Ld. Defence Counsel for accused submitted that accused has been falsely implicated in the present case and she has no SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 45/84 concern with the alleged recovery of the ketamine. He further submitted that the alleged bag wherefrom the ketamine 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 her was not provided to her. Written arguments have been filed. 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. He has argued that panchnama was prepared before interpretor reached the office of custom and bags were already opened. JUDGMENTS RELIED UPON BY LD. SPP FOR CUSTOMS:
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58;
2) Rehmatullah Vs. NCB (2008) (3) JCC SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 46/84 (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,
11) Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 47/84
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
16. 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.
FINDINGS:
17. From the perusal of record and evidence SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 48/84 available on record, it is observed that the bag in question recovered from possession of accused Mahaboobsubharani Mohd. Arif very much belonged to her as same was booked by accused with the airline at the time of her check in. PW-6 during his examination has specifically deposed that "On demand accused produced baggage claim stub numbers EYCL No. 0232600023 and EYCL No. 0232600024 which were issued in the name of accused No. 1 i.e. Smt. Mahaboobsubharani Mohd. Arif and were affixed on the boarding pass. On directions, the staff of the concerned airlines produced two checked in baggages of the accused persons and they were having the baggage numbers as referred above issued in the name of accused No. 1. The particulars of the baggage tag were tallied with the baggage claim stubs and were found in order, besides SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 49/84 that both accused also identified the said bags as their bags which they had booked with the airlines at the time of their check-in".
18. PW-6 has proved the Air ticket of Mahaboobsubharani as Ex. PW-6/J, her boarding passes were Ex. PW-6/J1 and J2, her baggage tag Nos. were Ex. PW-6/J6 and PW-6/J7 and her hand baggage tags were Ex. PW-6/J8 and PW-6/J9. So from above deposition of PW-6, it is clear that bag in question belonged to accused No. 1.
19. 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 samples A1 and B1 were sent to CRCL through PW-5 Satyapal who deposited the same with CRCL and obtained receipt. Deposition of PW-5 in this respect is SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 50/84 reproduced herein below:-
"On 20.04.2012, he was authorized by Sh. H.K. Singh vide authorization letter to deposit the samples A1 and B1 with CRCL alongwith test memo in duplicate. He has deposed that as per instructions and authorization, he met Raj Kumar Meena and collected test memo in duplicate from him, samples Mark A1 and B1 from SDO(A) in intact condition and made his endorsement in SDO(A) register against Entry No.3122 and thereafter deposited the same in CRCL and obtained the receipt and handed over the same to Sh. H.K. Singh. He proved Entry No. 3122 as Ex.PW5/A and receipt of CRCL as Ex.PW2/T."
20. PW-9 Sh. Radhey Shyam has deposed that "On 29.04.2012, test report alongwith remnant samples Mark A1 and B1 were received from SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 51/84 CRCL and were taken on record and were deposited with SDO (A) Sh. T. C. Thakur in intact condition sealed with seal of CRCL. He further deposed that both sealed samples were put in envelope and sealed with Customs Seal No.6 and deposited with SDO (A) Sh. T. C. Thakur. He has proved envelopes of remnant samples and test reports received from CRCL as Ex. PW2/W, Ex. PW2/W1, Ex. PW6/H and Ex. PW6/G respectively, detention receipt No. 06014 dated 29.04.2012 as Ex. PW2/W2, register entry No. 3171 dated 29.04.2012 for the purpose of sealing the remnant samples as Ex. PW9/A, Entry No. 3172 for depositing the remnant samples as Ex. PW9/B, Entry No. 3173 as Ex. PW9/C regarding deposition of customs seal No.6 with SDO(A)".
21. Moreover, PW-19 Sh. Bhuwan Ram Chemical SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 52/84 Examiner, CRCL has deposed that "Samples were in sealed condition with custom Seal No. 6. After verifying the samples and their particulars, the same were directed to Sh. Rajiv Anand, the then Assistant Chemical Examiner for their receipts....... Before starting of analysis, seals and another particulars were tallied again and they were found in order".
22. Therefore, this argument of Ld. Counsel for defence does not hold water.
23. 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"
24. Ld. Defence Counsel further argued that the statement of accused is not voluntary statement and SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 53/84 same was obtained by Custom Officer under pressure and she was not acquainted with Hindi and English language being Tamil.
25. In response to this argument, it is observed that the statement of accused recorded U/s 67 of NDPS Act Ex. PW-2/C is very much voluntary statement of accused because it has been reduced into writing by Ms. Vishaka the airline officer which was narrated to her in verbatim in her own language by Interpretor PW-17 Gobinath. It bears the signatures of accused at point B. During the course of arguments, certain question were asked to accused to which she replied in Hindi. PW-2 Sh. H. K. Singh, Superintendent Customs during his examination in chief recorded on 07.02.2013 had deposed as under:-
"In compliance of the said summon accused No. 1 Smt. Mahboobsubharani Mohd. Arif SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 54/84 appeared before me and I had recorded her statement dated 19.04.2012 U/s 67 of NDPS Act. The said statement was reduced into writing by Ms. Vishaka the airline officer on the request of accused as she was not able to write Hindi, English or even Tamil language. During recording of the aforesaid statement Mr. S. Gobinath the interpretor was also present and said statement was recorded with his assistance".
26. So perusal of statement recorded U/s 67 of NDPS Act, it is clear that her statement is a voluntary statement without any pressure and force and she disclosed some special fact in her statement which were having in the special knowledge of accused No.
1. It is observed that the statement of accused is otherwise admissible in evidence because same has been not recorded by police officer. SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 55/84
27. So far as retraction of accused is concerned, Ld. SPP rightly submits that the said so called retraction is an after thought document and the contents of the same nothing except concocted story based on advice of third person. Ld. SPP further rightly submits that the accused does not raise any allegation or averment against the custom officers when she was produced after her arrest before the Hon'ble Court for remand, therefore, the so called retraction should be discarded. Further from the perusal of the said statement, it reveals that it is voluntary in nature as it has been reduced into writing by accused herself and she did not make any complaint to the court while she was produced first time in the Court. Therefore, this argument of Ld. Counsel for defence also does not hold water. Ld. SPP for Customs has relied upon case titled Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 56/84 174, 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 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".
28. In case Raj Kumar Karwal Vs. UOI 1991 Crl.
Law Journal 97 (SC) it was held that such SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 57/84 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 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 58/84 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 & 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.
29. 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 59/84 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 tempering with the record or the contraband. In the present case, the accused has created false bottom in the bag where the contraband was concealed, hence it cannot be stated that he was not in conscious possession of the contraband i. e. ketamine.
30. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out in their cross-examination to discredit SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 60/84 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 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 61/84 be branded as liar".
31. The present case is a case of recovery of huge quantity of ketamine. 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 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."
32. The accused controverted the entire prosecution SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 62/84 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 tempered with. The case property and sample were also produced in the court which was identified.
33. 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. SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 63/84
34. 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 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 64/84 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 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 65/84 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 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". SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 66/84
35. 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 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.
36. The prosecution witnesses are clear and consistent in their deposition about the service of SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 67/84 notice U/s 50 of NDPS Act before taking search of accused. The notice U/s 50 of NDPS Act Ex. PW-4/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 her.
37. The attention of court is drawn towards the deposition of PW-4 Ms. Suchita Lokhande, ACO who deposed as under:-
"I had served a notice U/s 50 of NDPS Act upon the female accused Mahaboobsubharani Mohd. Arif whereby she was apprised about her legal right to the effect that her personal search and search of their baggage could be conducted in the presence of a Magistrate or a Gazetted Officer to which she replied in writing in her own hand on the notice itself from pt. X to X that she does not want the presence of Magistrate or Gazetted officer and SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 68/84 Custom officer can take her personal search and search of her baggage. During this process, S. Gobinath was present".
38. The said notice Ex. PW-4/A bears the signatures of accused at point B apart from signatures of panch witnesses Ms. Vishaka Arya and Praveen Srivastava at point C and D respectively. Both the panch witnesses have deposed in witness box about their role in the investigation done in the present case and nothing contrary has come in their deposition as their testimony is consistent. They are material witnesses as they had witnessed all the proceedings conducted in the matter. They have identified their signatures on all the documents prepared at spot.
39. The Ld. Defence counsel has argued that legal rights of accused were not explained before personal search and examination of baggage and has relied SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 69/84 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 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 70/84 before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
40. 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 and U/s 102 of Customs Act Ex. PW-4/A and B and Ex. PW-6/A and B respectively show that legal right of accused was explained to them. The contents of above notice are reproduced herein below:-
"The examination of your baggage and your personal search is to be conducted as per NDPS Act. It is your legal right that the same could be conducted before a Magistrate or a Gazetted officer".
41. So from above perusal of contents of notices, it is clear that legal rights of accused to be searched of his/her person and examination of their baggage can be conducted before a Magistrate or a Gazetted SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 71/84 officer to which they refused. So this argument of Ld. Defence counsel is not tenable and does not hold any water.
42. There is another argument of counsel for accused with regard to non-providing of interpretor to the accused and it is argued that interpretor was not present at the time of conducting the proceedings by customs officer after interception of accused and panchnama was prepared before interpretor reached the office of custom and bags were already opened.
43. However, this argument is not tenable because Sh. S. Gobinath PW-17, Interpretor was present at that time. Records of present case show that accused had understood the purpose of notice and deliberately declined to get herself searched before the Gazetted Officer or the Magistrate. During the course of cross-examination of prosecution witnesses, no substantial question or suggestion was SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 72/84 put forth in this aspect. PW-16 Sh. Praveen Srivastava during his examination recorded on 15.01.2015 has deposed that "Proceedings were going on with the assistance of interpretor who was interpreting the proceedings to the passengers in their language".
44. Thus, it has to be kept in mind that evidence is to be read in totality and not in isolation. So the above argument of Ld. Defence Counsel is also not tenable.
45. Judgment titled Jayapalan Vs. State 1989 C. 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.
46. 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, SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 73/84 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.
47. In the judgment titled Jarnail Singh Vs. State of Punjab, Hon'ble Supreme Court has referred 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 74/84 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 with the specimen seal as per the forwarding authorities. Therefore, this argument of Ld. Defence counsel stands demolished.
48. 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.
49. It is confirmed with the CRCL result (admissible SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 75/84 under Section 293 of Cr. P. C.) Ex. PW-6/G that contraband sent to FSL which was recovered from the accused persons was Ketamine. The contents of report Ex. PW-6/G are reproduced herein below:-
"The sample is in the form of white crystalline powder. On the basis of chemical and chromatographic examinations, it is concluded that the sample under reference answers positive test for ketamine hydrochloride".
50. In the light of consistent and reliable testimony of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by her either by examining herself on oath or by leading any cogent evidence in her defence.
51. In the instant case all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 76/84 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.
52. 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 witnesses Ms. Vishaka Arya PW-20 and Praveen Srivastava PW-16 are public witnesses who have appeared before the Court and produced themselves in witness box and have deposed substantially against the accused. 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. SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 77/84 For this Ld. Defence 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.
53. It is evident from the testimony of prosecution witnesses that sincere efforts were made to join the public witnesses but none was willing to come forward. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 78/84 proceedings. 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 prosecution witnesses. This 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. SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 79/84 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 independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
54. 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 SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 80/84 care and caution". Rather in the present matter, PW-16 and PW-20 are public witnesses.
55. 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 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.
56. It is also argued by counsel for accused that it has come in the disclosure statement of accused No. 2 that accused No. 1 was having no knowledge about concealment of contraband in the seized baggage in SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 81/84 question and thus she be acquitted in the present case. However, from perusal of documents and material available on record, it is observed that accused was carrying contraband in her baggage knowingly in conspiracy with accused No. 2 and accused conspired with each other to conceal the recovered 10 kg of ketamine in the said baggage and they were having possession of said contraband and or they 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.
57. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was in conscious possession of ketamine.
SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 82/84
58. 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 No. 1 Mahaboobsubharani Mohd. Arif was found in possession of commercial quantity of contraband articles i. e. 5 of ketamine from her baggage. Similarly, Accused No. 2 Syed Abdul Rahman Sait (expired now) was also found in possession of 5 kg of ketamine from his baggage and thus she committed offence as prescribed under Section 22(c), 23, 28 & 29 of NDPS Act and accused entered into a criminal conspiracy for possessing contraband and tried to export the said recovered 5 kg each ketamine of her as well as assisted other accused person Syed Abdul Rahman in exporting the contraband out of India in contravention of provisions of NDPS Act and thus the accused herein had made SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 83/84 conspiracy, abetment and attempt to export the contraband from India and committed the offences punishable under abovesaid sections. Hence, accused Mahaboobsubharani Mohd. Arif is held guilty for the offence committed by her and she is convicted U/s 22(c), 23, 28 & 29 of NDPS Act 1985.
59. 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. Pronounced in the open court. (AJAY GOEL) Dated: 08.05.2018 ASJ/Special Judge (NDPS), Dwarka Courts, New Delhi.
Digitally
signed by
AJAY AJAY GOEL
Date:
GOEL 2018.05.13
22:14:32
+0530
SC No. 441099/2016 Custom Vs. Mahboobsubharani Mohd. Arif & Anr. Page No. 84/84