Madras High Court
Senthil Kumar vs The Assistant Commissioner Of Customs on 5 September, 2014
Crl.A.No.570 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving Judgment Date of pronouncing Judgment
20.08.2018 14.11.2019
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.570 of 2014
and
M.P.No.1 of 2015
Senthil Kumar .. Appellant
Versus
The Assistant Commissioner of Customs
Prosecution Unit (Air)
New Customs House
Chennai – 600 027. .. Respondent
Appeal filed u/s.374 (2) of Cr.P.C. against the Judgment of
conviction and sentence passed by the learned Principal Special
Judge for NDPS Act Cases, Chennai, in C.C.No.25 of 2014 dated
05.09.2014.
For Appellant : Mr.M.Ramesh
For Respondent : No appearance
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Judgment
The respondent (Customs) registered a case against the
appellant for the offence under sections 8(c) r/w.22 (c) of NDPS
Act and after investigation, the respondent (Customs) laid a
private complaint before the Special Court for NDPS Cases in R.R.
No.23 of 2013 in O.S.No.57 of 2013 - INT and the learned Special
Judge, after taking the complaint on file in C.C.No.25 of 2014 and
after completing the formalities, framed charges against the
appellant for the offences under sections 8(c) r/w.22 (c) of NDPS
Act.
2. Subsequently, in order to prove the case of
prosecution, during the trial, on the side of prosecution, as many
as 3 witnesses were examined as PW.1 to PW.3 and 17 documents
were marked as Exs.P1 to P17, besides 4 Material Objects.
3. After completing the prosecution witnesses, when
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incriminating circumstances culled out from the evidence of
prosecution witnesses were put before the accused/appellant, he
denied as false. On the side of defence, no oral and documentary
evidence was produced.
4. After completing the trial and hearing the arguments
advanced on either side and perusing the oral and documentary
evidences, the learned Special Judge has come to the conclusion
that the accused/appellant is guilty for the offence under
sections 8(c) r/w.22 (c) of NDPS Act and convicted him for the
above said offence and sentenced him to undergo 10 years
rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in
default to remit the fine amount, the accused to undergo six
months rigorous imprisonment.
5. Challenging the said judgment of conviction passed by
the learned Special Judge, the convict has preferred the present
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appeal before this Court.
6. The learned counsel for the appellant would submit
that based on the evidence of PW.1 alone, the trial Court has
convicted the appellant and that even there is no independent
witness examined in this case, when the alleged offence taken
place in the airport. Though the case of the prosecution is that
on information received by the Superintendent of Customs
Officials, they intercepted the appellant. The alleged information
received from the informer has not been reduced into writing
under Section 42 of the NDPS Act, which is violation of the
mandatory provisions of the said Act. The respondent did not
explain the right of the appellant as per Section 50 of the NDPS
Act and therefore, the seizure and arrest itself is very doubtful
and the violation of mandatory provisions of Section 50 of the
NDPS Act is fatal to the case of the prosecution. As per the
provisions of the Act, the appellant should have been searched
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before the Gazetted Officer of Customs or the Magistrate.
Though the prosecution has stated that the appellant was
searched before the Superintendent of Customs (Gazetted
Officer) and seized the contraband, the above officer was not
shown as prosecution witness. The said Superintendent was
neither cited as witness nor examined as prosecution witness.
The prosecution has not proved its case beyond reasonable doubt
and the mandatory provisions of the NDPS Act, viz., Sections 42,
50 and 57 have not been duly complied with. Further, conviction
recorded based on the statement given by the appellant/accused
under Section 67 of the NDPS Act is not permissible. The
prosecution has to establish its case through independent witness
and also the statement of PW.1 needs corroboration. In this
case, the prosecution failed to establish its case beyond
reasonable doubt. The learned trial Judge failed to consider the
legal as well as factual position and simply convicted the
appellant based on the unreliable evidence of prosecution, which
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warrants interference.
7. The learned counsel for the appellant has placed his
reliance on the following decisions in support of his case:-
(i) III (1999) CCR 109 (SC) (State of Punjab ..vs.. Baldev
Singh etc.,);
(ii) (2012) 1 Supreme Court Cases (Crl.) 385 : (2011) 12
Supreme Court Cases 207 (State of Delhi ..vs.. Ram Avtar alias
Rama);
(iii) (2013) 2 Supreme Court Cases 67 (Ashok Kumar Sharma
..vs.. State of Rajasthan);
(iv) (2013) 1 Supreme Court Cases (Cri) 933 : (2013) 2
Supreme Court Cases 212 (Sukhdev Singh ..vs.. State of Haryana);
(v) (2013) 4 MLJ (Crl.) 499 (SC) (Gurjant Singh @ Janta
..vs.. State of Punjab);
(vi) (2014) 5 Supreme Court Cases 345 (State of Rajasthan
..vs.. Parmanand and another).
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8. According to the prosecution, it is an admitted fact
that the appellant was intercepted in Anna International Airport
Terminal at Chennai on 31.07.2013 and he was in possession of air
ticket to Jakarta and also when he reached the security point, at
that time, when he was doubted about, the Customs Officials
questioned him and as he appears to be severe and nervous, on
suspicion, they made a search and found that the slipper was
beyond the weight, therefore, they suspected and when it was
searched, there was a special designated base in it and they
recovered contraband from that slipper in accordance with law
and subsequently, it was tested and found as contraband
'ephedrine'. PW.1 took two samples, each weighing 25gm, and
also packed and labelled in accordance with the procedures and
also sealed the same. After recovery, the appellant was arrested
through Mahazar and the arrest was duly informed to their
relatives and the contraband was also recovered through the
Mahazar. After completing the formalities, he preferred a report
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under Section 57 of the NDPS Act and based on this report,
subsequently, the case was also filed. The report was also filed
before the superior official and subsequently, the appellant was
produced along with the report before the Special Court. After
the investigation, a complaint was filed before the Special Court.
After trial, the Special Court, has rightly come to the conclusion
that there is no violation of mandatory provisions and the
prosecution has established its case beyond reasonable doubt.
9. Heard and perused the records.
10. It is the case of the prosecution that on specific
information that the appellant, who bound for Jakarta via Kuala
Lumpur by Malasian Airlines Flight - MH0181/31.07.2013, would
be smuggling narcotic drugs concealed in his sandals worn by him,
the appellant was identified and intercepted at the security area
of the departure hall at Anna International Terminal, Chennai
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Airport. For the specific question whether he was carrying any
narcotic drugs on his person or in his hand bag, the appellant
replied in negative. As he was found nervous, he was brought to
the AIU room situated at the Arrival Hall of Anna International
Airport along with his blue and black colour zipper shoulder bag.
The appellant, holder of Indian Passport No.H4420824/18.08.2009
was bound for Jakarta via Kuala Lumpur by Malasian Airlines
Flight MH0181 dated 31.07.2013; the appellant was having two
boarding passes, one for travel from Chennai to Kuala Lumpur
and another for travel from Kuala Lumpur to Jakarta, in the name
of the appellant. When the appellant was questioned again as to
whether he was in possession of any narcotic drugs or controlled
substance/contraband, to which, he replied in negative. Not
satisfied with his reply, the same was informed to the
Superintendent, AIU Hall, who was present there, who in turn,
directed PW.1 to arrange for two independent witnesses for
further proceedings. As directed, PW.1 arranged for two
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witnesses and briefed them the details, showed them the
appellant, his passport and travel documents. PW.1 also
informed them about their intention to search the appellant's
package and his person in their presence under the provisions of
NDPS Act, to which they agreed and PW.1 introduced the
witnesses to the team of officials and the appellant, then he
informed, in the presence of the witnesses, the appellant that his
package would be examined and searched, for his person search
would be conducted under the provisions of the Narcotic Drugs
and Psychotropic Substances Act and as per Section 50 of the
NDPS Act, he had right to be searched either before the
Magistrate or a Gazetted Officer and that the Superintendent was
a Gazetted Officer. The appellant agreed to be searched before
the said Superintendent (AIU) and PW.1 examined the appellant's
hand bag - one blue and black colour zipper shoulder bag, which
contains only his personal belongings. Thereafter, PW.1
examined the appellant and conducted examination of his person
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and during the search, he examined the black and light brown
colour stanza sandals worn by the appellant and found them to be
unusually heavy, and on suspicion that the same might contain
any narcotic drugs or ephydrine etc., PW.1, in the presence of
the witnesses and in the presence of the appellant, cut open the
said black and light brown colour stanza sandals worn by the
appellant and recovered two polythene covers, one from each
sandal, containing some white colour crystalline substance
suspected to be narcotics drug. The contents of both the
polythene covers were transferred to one 'Flemingo Red and
White Duty Free Shop carry bag' and marked as 'P'. A small pinch
of powder from the above white colour crystalline substance was
taken by PW.1 and tested with Narcotic Field Kit and all of them
answered positive for the presence of Ephedrine, a controlled
substance under the provisions of the NDPS Act. Therefore, in
the presence of both the appellant and the witnesses, he weighed
the above said white crystalline powder and the same was
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weighed to 510gm. The entire 510gm of white coloured granules,
suspected to be ephedrine, the controlled substance under the
Narcotic Drugs and Psychotropic Substances Act and valued
internationally at Rs.5,10,000/-, was seized by PW.1 under the
Mahazar. After that, he drew two representative samples of
25gm each in the presence of the appellant and two witnesses
and did the packing and sealing of the samples as given in the
Mahazar. He also seized one pair of stanza sandals and packing
materials used for concealing the substance etc., (Material
Objects), travelling ticket (e-ticket), two boarding passes and
passport for further action under the NDPS Act. The entire
proceedings were conducted as narrated in the Mahazar and was
completed on 31.07.2013 at 5.15 hrs. He returned the hand bag -
blue and black colour bag to the appellant. The appellant
accompanied PW.1 along with AIU team to main Customs House,
RSI, where the appellant was placed under arrest under Section
8(c) r/w. 22(c) of the NDPS Act at 13.00 hrs on 31.07.2013, after
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explaining to him the grounds of the arrest under NDPS Act.
Thereafter, he handed over the appellant along with the
documents to the prosecution Officer one Santhosh Kumar and
assisted him in the prosecution of the appellant and in producing
the seized properties before the Chief Metropolitan Magistrate
(E.O. - II), Egmore, Chennai and therefore, deposited the
properties with the Detention Officer, Customs, International
Airport. Thereafter, after the investigation, the prosecution has
filed a complaint, otherwise police report, before the Special
Court under NDPS Act and the trial Court has also taken
cognizance of the offence.
11. In order to prove the case of the prosecution, as
already stated, on the side of the prosecution, three witnesses
were examined. The Intelligence Officer (AIU – Air Intelligence
Unit) was examined as PW.1. He has clearly deposed that on
specific information that the appellant, who bound for Jakarta via
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Kuala Lumpur by Malasian Airlines Flight - MH0181/31.07.2013,
would be smuggling narcotic drugs concealed in his sandals worn
by him, they identified and intercepted the appellant at the
security area of the departure hall at Anna International
Terminal, Chennai Airport. For the specific question whether he
was carrying any narcotic drugs on his person or in his hand bag,
the appellant replied in negative. As he was found nervous, he
was brought to the AIU room situated at the Arrival Hall of Anna
International Airport. PW.1 arranged for two witnesses and
introduced the witnesses to the team of officials and the
appellant and then informed the appellant that his person and his
package would be examined and searched and as per Section 50
of the NDPS Act, he had right to be searched either before the
Magistrate or a Gazetted Officer and that the Superintendent was
a Gazetted Officer. The appellant agreed to be searched before
the said Superintendent (AIU) and PW.1 examined the appellant's
blue and black colour zipper shoulder bag, which contains only his
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personal belongings, hence, the same was returned to the
appellant. While examining his person, PW.1 examined the
black and light brown colour stanza sandals worn by the appellant
and found them to be unusually heavy, and on suspicion, PW.1
cut open the said black and light brown colour stanza sandals and
recovered two polythene covers, one from each sandal,
containing some white colour crystalline substance suspected to
be narcotics drug. The contents of both the polythene covers
were transferred to one cover and the same was weighed to
510gm. A small pinch of powder from the above white colour
crystalline substance was taken and tested and all of them
answered positive for the presence of Ephedrine. After that, he
drew two representative samples of 25gm each and did the
packing and sealing of the samples and obtained signatures from
the appellant and the witnesses and he also signed on the pack.
The remaining white colour crystalline substance was kept in a
polythene cover and taped by adhesive and then kept in a carton
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box and labelled it. He recovered Boarding Passes, Flight Ticket
and Passport from the appellant under spot Mahazar and obtained
the signatures of the appellant and the witnesses and he also
signed. The Mahazar prepared on 31.07.2013 was marked as
Ex.P1, Boarding Pass of the appellant dated 31.07.2013 from
Kaula Lumpur to Jakarta was marked as Ex.P2, Boarding Pass from
Chennai to Kaula Lumpur dated 31.07.2013 was marked as Ex.P3,
ticket dated 31.07.2013 was marked as Ex.P4, passport of the
appellant was marked as Ex.P5, old passport of the appellant was
marked as Ex.P6, confession statement given by the appellant in
the Airport before PW.1 in the presence of witness PW.2 and
others dated 31.07.2013 was marked as Ex.P7, confession
statement recorded by the Customs Officers was marked as
Ex.P8, Chart of the passengers dated 31.07.2013 on the particular
flight was marked as Ex.P9. The arrest of the appellant/accused
was also duly informed to his wife. The arrest memo dated
31.07.2013 was marked as Ex.P10 and the telegram to the wife of
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the appellant/accused dated 31.07.2013 was marked as Ex.P11.
12. The evidence of PW.1 was corroborated by PW.2, who
has clearly deposed that he was working as salesman in Flemingo
Duty Free in the International Airport on 31.07.2013 and when
PW.1 asked him to stand as a witness for the proceedings, he also
accepted the same and one Shanthikumar also stood as a witness
along with him for the search proceedings conducted by PW.1 on
31.07.2013 in the International Airport.
13. PW.2 has also clearly corroborated the evidence of
PW.1 and he was all along with PW.1 ie., from the search till the
arrest and handover before the authorities. He also admitted
that he has signed in the Mahazar and he was the witness to all
the proceedings. Therefore, the prosecution has proved its case
about the secret information received while PW.1 was in duty in
the International Airport and he also intercepted the appellant
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and since the appellant appeared to be very severe and nervous,
he suspected and also questioned the appellant whether he was
carrying any narcotic drugs on his person or in his hand bag, and
during questioned, though the appellant denied, subsequently
when belongings were searched at the Terminus, his sandals
appeared to be unusually heavy, therefore, suspected and opened
it and found the contraband by name ephedrine and also
prepared Mahazar and recovered the same. The evidence of
PW.1 was corroborated by PW.2. Therefore, all the procedures
contemplated under the NDPS Act were complied with.
14. The Scientific Expert was examined as PW.3. She has
clearly deposed that the samples were received from the Court
for analysis and she found the substance and all the sample packs
and also the seals and everything were intact and after
examination, she found that the substance is Metha Phetamine
Hydrochloride and her report was marked as Ex.P16. So PW.3
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herself proved that the recovered contraband from the appellant
was Metha Phetamine Hydrochloride (Ephedrine), which is a
prohibited substance under the NDPS Act. The appellant has not
produced either any licence or permission to possess the
contraband. Therefore, he has committed the offence under
Sections 8(c) r/w.22 (c) of NDPS Act.
15. The prosecution has also clearly proved through PWs.1
to 3 and Exs.P1 to P17 besides M.Os.1 to 4 that the appellant was
in conscious possession and he did not possess any valid licence or
permission from appropriate Government or competent authority.
16. Though the learned counsel for the appellant would
submit that the mandatory provisions of NDPS Act like Sections
42, 50 and 57 were not complied with, but on reading of the
entire evidence of PW.1, who was in duty on the date of
occurrence in the International Airport, he received the secret
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information and immediately, he intercepted the appellant and
questioned and thereafter, he proceeded and therefore, the
contention of the learned counsel for the appellant is not
acceptable since proceedings under Section 43 was done in this
case. The appellant was searched before Superintendent of AIU,
who is also the Gazetted Officer. So in the presence of the
Gazetted Officer only, the appellant was searched and the
belongings of the appellant was searched. Though the Gazetted
Officer was not examined in this case, but witness to all the
proceedings and the Mahazar was examined as PW.2. In the
Airport, that too, in the security area, one cannot expect the
public, that too, the passengers as a witness, where the
passengers are proceeded to catch the flights and the passengers
may not be in a position to stay for hours to give evidence. The
reason stated by the learned counsel for the appellant that the
independent public was not examined, is not acceptable.
Therefore, mere non-examination of any independent public as a
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witness is not fatal to the case of the prosecution and the non-
examination of the Gazetted Officer in the presence of whom,
the appellant was searched is also not fatal to the case of the
prosecution.
17. PW.1 has clearly deposed about the entire
proceedings and PW.2 has clearly corroborated the evidence of
PW.1. The appellant has also not denied that he was not in
possession of Boarding Passes and Air-Ticket (Exs.P2, P3 and P4),
which itself shows that he was present in the Airport on that day
and he scheduled to be travelled from Chennai to Jakarta and
also he went upto the security area. Therefore, the presence of
the appellant on the date of occurrence in the Airport is not
disputed and the recovery alone is disputed by the appellant. In
this case, from the evidences of PWs.1 and 2, recovery was also
clearly proved and the alleged contraband in possession of the
appellant was also proved and that the samples contained the
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substance, viz., Metha Phetamine Hydrochloride (Ephedrine) was
also proved through PW.3 and his report. Therefore, in this case,
PW.1 prepared the report under Section 57 of the NDPS Act and
has produced before the prosecution officer.
18. On reading of the entire materials available on record,
this Court finds that the prosecution has proved its case for the
offence of the appellant under Sections 8(c) r/w.22(c) of NDPS
Act and on reading of the judgment of the trial Court also, the
trial Court has found that the prosecution has established its case
beyond reasonable doubt and also there is no violation of
mandatory provisions of NDPS Act. Therefore, this Court does not
find any perversity in the judgment of the trial Court. This Court
also finds that the prosecution has proved its case through cogent
and reliable evidence and there is no merit in the appeal and the
appeal is liable to be dismissed and accordingly dismissed.
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19. There is no quarrel with the propositions laid down in
the above said decisions referred to by the learned counsel for
the appellant. The facts and circumstances involved in those
cases are not identical to the facts of the present case and the
facts and circumstance of the present case is entirely different
from those cases. Therefore, the decisions relied on by the
learned counsel for the appellant are not applicable to the
present case.
20. In the result, the Criminal Appeal stands dismissed and
the conviction and sentence passed by the learned Principal
Special Judge for NDPS Act Cases, Chennai, in C.C.No.25 of 2014
dated 05.09.2014 are hereby confirmed. Consequently,
connected Miscellaneous Petition is closed. The period of
sentence already undergone, if any, by the appellant/sole
accused shall be set off under Section 428 Cr.P.C.
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14.11.2019
Speaking / Non-speaking
Index : Yes/No
mra
To
1. The Principal Special Judge for NDPS Act Cases
Chennai.
2. The Assistant Commissioner of Customs
Prosecution Unit (Air)
New Customs House
Chennai – 600 027.
3. The Special Public Prosecutor (Customs)
Chennai.
4. The Public Prosecutor
High Court, Chennai.
P.VELMURUGAN, J.
mra 24/25 http://www.judis.nic.in Crl.A.No.570 of 2014 Judgment in Crl.A.No.570 of 2014 and M.P.No.1 of 2015 14.11.2019 Pre-delivery Judgment in Crl.A.No.570 of 2014 To THE HONOURABLE MR. JUSTICE P.VELMURUGAN 25/25 http://www.judis.nic.in Crl.A.No.570 of 2014 humbly submitted by mra P.S. 26/25 http://www.judis.nic.in