Delhi District Court
Sc No. 35A/07 Dri vs Supaporn Patsak on 8 November, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Ms Anju Singh
Intelligence Officer
Directorate of Revenue Intelligence
Delhi Zonal Unit
New Delhi.
V E R S U S
Ms Supaporn Patsak
D/o Mrs Phapapron Kachok
R/o 185, Jaloenkhung
16 Bangkok, Thailand.
SC No. : 35A/07
U/S : 21/23 NDPS Act
Computer ID No. 02403R0349892007
19.11.2012
ORDER ON SENTENCE
Present: Sh Vikas Gautam proxy counsel for SPP for DRI.
Convict in JC with Counsel Sh T. K. Mahapatra.
After having convicted the accused for the
offences punishable U/S 21(c) and Section 23(c) read with
Section 28 of the NDPS Act vide my judgment dated
SC No. 35A/07 DRI Vs Supaporn Patsak
2
08.11.2012, arguments have been heard today as advanced by
Sh Vikas Gautam, Ld proxy counsel for Ld SPP for DRI and Sh
T. K. Mahapatra, Ld counsel for the convict on the point of
sentence to be awarded to the convict. The submissions
made by the convict herself have also been heard.
2. It has been submitted on behalf of the prosecution
that the maximum term of imprisonment be imposed upon the
convict and she does not deserve any leniency from this
court as she has been found guilty of possessing and trying
to export a commercial quantity of Heroin. The offences
punishable U/S 21(c) and 23(c) read with Section 28 of the
NDPS Act, which have been proved against the convict,
carry a minimum term of rigorous imprisonment for a period
of 10 years extending up to 20 years each and also a fine
of not less than Rs.1 Lac and extending up to Rs.2 Lac
each.
3. On the other hand, it is submitted on behalf of
convict that she is aged around 31 years only and she is
still unmarried and there is no other member in her family
to take care of her old mother who is living in her native
country of Thailand as her mother was divorced by her
father even prior to her birth. It is, thus, submitted that
lenient view be taken in awarding sentence to the convict
and minimum sentences should be imposed upon the convict.
4. I have thoughtfully considered the above
SC No. 35A/07 DRI Vs Supaporn Patsak
3
submissions being advanced on the point of sentence. The
convict is a female aged only around 31 years. As per the
prosecution story, she was acting only as a carrier of the
contraband substance and is not alleged to be a kingpin or
any drugs racket. No previous involvement of the convict in
any such case has also been brought on record till date on
behalf of DRI.
5. Therefore, keeping in view the age, family
background and all other attending circumstances, the
convict is being awarded the minimum sentence of rigorous
imprisonment for a period of 10 years each and a fine of
Rs.1 Lac each for the abovesaid offences U/S 21(c) and
23(c) read with Section 28 of the NDPS Act. In case of non
payment of fine she shall further undergo simple
imprisonment for a period of one month each. Both the
sentences to run concurrently and the period of custody
already undergone by her is allowed to be set off in terms
of the provisions of Section 428 Cr.P.C. Let her to undergo
the above sentences as per law. Fine has not been paid.
6. A copy of the judgment and the order on sentence
be supplied to the convict free of cost.
7. The case property be also confiscated and
disposed of as per law, after the expiry of the period of
limitation for filing of the appeal and subject to the
outcome of any appeal to be filed against this judgment
SC No. 35A/07 DRI Vs Supaporn Patsak
4
and order on sentence and orders of the appellate court.
Announced in the open
court on 19.11.2012 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 35A/07 DRI Vs Supaporn Patsak
5
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Ms Anju Singh
Intelligence Officer
Directorate of Revenue Intelligence
Delhi Zonal Unit
New Delhi.
V E R S U S
Ms Supaporn Patsak
D/o Mrs Phapapron Kachok
R/o 185, Jaloenkhung
16 Bangkok, Thailand.
SC No. : 35A/07
U/S : 21/23 NDPS Act
Computer ID No. 02403R0349892007
Date of institution : 25.05.2007
Date of reserving judgment : 06.11.2012
Date of pronouncement of judgment : 08.11.2012
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by Ms Anju Singh, Intelligence Officer of the Directorate of Revenue Intelligence (hereinafter referred to as DRI) against the accused for the offences punishable U/S 21 and 23 of the NDPS Act, 1985.
SC No. 35A/07 DRI Vs Supaporn Patsak 6
2. Brief facts of the case are that on 24.12.2006 a specific intelligence was received by PW1 Sh K.S.Ratra, an Intelligence Officer of DRI, DZU, New Delhi, through some reliable source that one lady named Supaporn Patsak holding a Thailand Passport No. X-671742 is bound to travel to Beijing by flight no. CA-948 at 4.40 PM (a delayed flight) on that day from the IGI Airport, New Delhi, with a checked-in baggage (suitcase) containing about 1.250 KG of Heroin in false bottom of the above suitcase. The above intelligence was immediately reduced into writing by PW1 as PW1/A and the same was placed by him before a senior officer and on the directions of the senior officer a team of DRI officers was constituted and it had reached at the above airport.
3. It is alleged in the complaint that the above lady passenger, i.e. the accused facing trial herein, was off- loaded from the above flight and she was carrying a black colour strolley bag marked Grand Polo and an off-white colour lady zipper purse as her hand bag at that time. Two witnesses were called and they were apprised about the above intelligence regarding the carrying of some contraband substance by the accused, either concealed in her checked-in baggage or on her person and the witnesses were also introduced to the accused. The accused was taken to the Customs Preventive Room located at the departure hall of the above airport, Terminal II, where in the presence of the witnesses the accused was asked whether she SC No. 35A/07 DRI Vs Supaporn Patsak 7 was carrying any contraband goods, to which she had replied in negative.
4. Thereafter, a notice U/S 50 of the NDPS Act Ex. PW7/B was served upon the accused asking specifically from her as to whether she required the presence of a Magistrate or a Gazetted Officer for her search and the search of her checked-in baggage and the accused had given a written reply in her own handwriting on the above notice itself to the effect that she did not require the presence of the abovesaid officers and any lady officer can take her search. Thus in the presence of the public witnesses, the search of the above checked-in baggage of the accused was carried out and some old and used clothes, sandals and cosmetics etc. kept therein were taken out and it was observed that the bottom of the above zipper strolley bag was abnormally thick. After removal of the screws inside the bag and on breaking open the bottom of the said bag, a packet secured with brown adhesive tapes and covered with carbon papers of Korex brand was found concealed therein and on opening the said packet was found to contain some off-white colour granule/powder, which gave a pungent smell. A pinch of the said powder on testing with the help of a UN Field Drug Testing Kit had given positive result for Heroin and the gross weight of the packet was found to be 1.450 KG and the net weight of the substance to be 1.300 KG and the above substance/Heroin, alongwith its packing material and strolley bag etc., was seized under the SC No. 35A/07 DRI Vs Supaporn Patsak 8 provisions of the NDPS Act.
5. It is also alleged that three representative samples of 5 Grams each were taken out from the abovesaid off-white granule/powder and the same were kept in separate press-sealed polythene bags and were marked as A1, A2 and A3 and these were further kept in brown craft paper envelopes and sealed with the DRI seal over a paper slip bearing the signatures of the witnesses, the accused and the complainant/PW7 and a facsimile of the above DRI seal was affixed alongside. The remaining granule/powder was repacked in the original packing and then kept in a yellow colour paper envelope and this envelope was further kept in a tin box, which was wrapped in a white markine cloth, stitched and sealed with the abovesaid seal over a paper slip bearing the signatures of all the above persons. The above black colour Grand Polo zipper strolley bag was also separately wrapped in a white cloth and a separate parcel thereof was prepared, which was similarly sealed with the above seal of DRI. The search of the ' p erson ' of the accused was carried out by the complainant and 40 Thai Bhats were recovered from her possession and in the search of the above hand bag being carried by the accused also 700 US Dollors, 2500/- Thai Bhats, a visiting card of Hotel Saina International and her photograph, air ticket no. 2638610152, boarding pass no. 053 and checked-in baggage tag no. CA 708140, besides some other articles were also recovered. The above documents and the above currency SC No. 35A/07 DRI Vs Supaporn Patsak 9 amount found in her hand bag were also taken into possession, being relevant to the investigation, and a separate envelope parcel of the above currency amount found in her hand bag was also prepared and similarly sealed with the same seal. A detailed panchnama Ex. PW7/C was also drawn with regard to the above proceedings and the same was also signed by all the above signatories and a facsimile of the above seal of DRI was affixed thereon as well as on the test memos prepared at the spot.
6. It is further alleged in the complaint that in response to the summons U/S 67 of the NDPS Act Ex. PW7/L dated 24.12.2006 served upon the accused, she had also appeared before the IO/complainant on 25.12.2006 and had tendered her voluntary statement Ex. PW7/M under the above provisions in her own handwriting. In her above statement, besides disclosing her personal and family details, the accused had admitted her off-loading from the above flight, the recovery of the above packet of Heroin from her above checked-in baggage and the other documents and currency amounts from her and also the seizure and sealing work etc. done at the airport with regard to the above substance and other articles. She had also stated in her above statement, inter-alia, that in November 2006 also she had visited India twice and she had first come to India with her friend Ms Uralinee, who was known to her for the last about three years and was working in an office in Bangkok, and she and Ms Uralinee had returned back to Bangkok after two days.
SC No. 35A/07 DRI Vs Supaporn Patsak 10 She had also stated therein that on the second time she had come to India with Ms Uralinee in the third week of November 2006 and returned back to Bangkok alone and Ms Uralinee stayed back in India and on third occasion she had come to India on 15.12.2006 on the request of Ms Uralinee to help her as Ms Uralinee did not know English or Hindi at all and she was knowing a little bit of English. She had also stated that the above Ms Uralinee was having a boyfriend named Mr Chinedo, who was a black person, and she had met Mr Chinedo for the first time with Ms Uralinee in the District Centre Janakpuri, New Delhi and though Ms Uralinee used to stay sometime with her in hotel and sometime with her above boyfriend, but she had always stayed in the hotel and she was not aware about the address of Mr Chinedo in Delhi. She had also stated in her above statement that during her third visit in India, Ms Uralinee had left for Bangkok on 20.12.2006 as her mother was hospitalized in Bangkok and she (accused) had stayed back in India as Ms Uralinee had told her that she will return back to India on 21.12.2006. However, on 21.12.2006 she was told by Ms Uralinee that her mother was serious and she might not return to India and she also asked the accused to return back to Bangkok and then the accused had booked her above ticket for Beijing for the above flight dated 24.12.2006 as there was no direct ticket available for Bangkok at the earliest and she also wished to buy some shoes and electronic items in China.
SC No. 35A/07 DRI Vs Supaporn Patsak 11
7. She had also disclosed in her above statement that she was not aware about the concealment of the above drugs (Heroin) in her above baggage as her above strolley bag had got damaged/broken while coming from Bangkok on 15.12.2006 and the same was collected by Mr Chinedo on 21.12.2006 from her hotel for repair and the same was with Mr Chinedo from 21.12.2006 to 23.12.2006, when it was delivered back to her after repair and Mr Chinedo told her nothing about the concealment of any contraband in her abovesaid bag. She had further disclosed in her above statement that her air fare for the first two visits was borne equally by her and her friend Ms Uralinee and the ticket for her third visit was purchased by her and on all the three occasions she had stayed at Hotel Saina International at Paharganj, New Delhi.
8. It is further alleged in the complaint that in response to the summons Ex. PW8/A dated 25.12.2006 issued U/S 67 of the NDPS Act to Sh Kulbir Singh, Manager of the above hotel, he had also appeared before PW8 Sh Arvind Kumar Sharma, an Intelligence Officer of DRI, and had tendered his voluntary statement Ex. PW8/B on the same day and in his above statement he had stated that no guest with the name of Supaporn Patsak had stayed in their hotel during the above periods in the months of November and December, as disclosed by the accused in her above statement. Summons Ex. PW7/N were again served upon the accused and she had also tendered another statement Ex.
SC No. 35A/07 DRI Vs Supaporn Patsak 12 PW7/O dated 25.12.2006 under the above provisions before the complainant/PW7 and on being confronted with the statement of the Manager of the above hotel, she had admitted in her above subsequent statement that she was aware that Mr Chinedo had concealed Heroin in her above black colour strolley bag and the same was to be delivered by her in China to one person named Obiora and as per the instructions of Mr Chinedo she was to make a call to the above Obiora on his number +8613719372056 after reaching at the Beijing Airport for delivering the above consignment of Heroin concealed in her above suitcase and she was to get 2000 US Dollors for carrying the above consignment of Heroin from New Delhi to Beijing. She had further disclosed in her above subsequent statement Ex. PW7/O that during her first two visits in November she had stayed in the above hotel with some other name, which was not known to her as the hotel was booked by Mr Chinedo and during her third visit in December 2006 from 15th to 23rd December, she did not stay in the above hotel and rather she had stayed with the above Mr Chinedo, the boyfriend of her friend Ms Uralinee in a house at Janakpuri, the address of which or the telephone number of Mr Chinedo she did not now remember.
9. Thereafter, as the accused appeared to have committed offences punishable U/S 21 and 23 of the NDPS Act, she was arrested in this case vide arrest memo Ex. PW7/P dated 25.12.2006 and the intimations regarding her SC No. 35A/07 DRI Vs Supaporn Patsak 13 arrest were sent to the Ministry of External Affairs, the Ambassador, Thailand Embassy, New Delhi and also to her mother in Bangkok at the address disclosed by her. One of the sealed parcels of this case, alongwith the test memos and forwarding letter, as well as the sealed parcels of the case property were got deposited with the CRCL and the Valuable Godown, New Customs House on 26.12.2006 and some details regarding the disclosure statements made by the accused and also regarding the booking of her tickets etc. were collected and some statements recorded with regard to the same. It was found during the investigation that the above ticket no. 2638610152 of the accused for her above flight of Air China was issued by M/S Riya Travels and Tours (I) Pvt. Ltd., an IATA agent, through some other agent M/S Brooks Travels, New Delhi, and the same was got issued by M/S Brooks Travels, New Delhi on the request of one Mr Pawa, a person of African origin, who had made payment for the above ticket to M/S Brooks Travels in cash and had also delivered to them a zerox copy of the above passport no. X 671742 of the accused to them. It was further disclosed during the investigation that the tickets of the accused for her previous two journeys to India were also got issued by the above Mr Pawa through M/S Brooks Travels on her one other Thai passport no. 652299.
10. A report about the seizure of the above quantity of Heroin and the arrest of the accused was also sent by the complainant/PW7 to her immediate superior Sh SC No. 35A/07 DRI Vs Supaporn Patsak 14 N.D.Azad/PW4 on 25.12.2006 and during investigation the postal envelope sent in the name of the mother of the accused was received back undelivered and hence one other statement dated 28.02.2007 Ex. PW7/V of the accused was also recorded in the Tihar Jail, with the permission of the court, to explain the return of the above process and the accused in her above statement had stated that though the above address disclosed by her was correct but her mother was staying at some other address in Bangkok and that might be the reason why the postal process was returned back. In the CRCL test report Ex. PW9/A received subsequently, the above sample on testing was confirmed to be containing diacetylmorphine (Heroin) and the percentage thereof in the said sample was opined to be 73.9%. Since the other persons named by the accused in her statements could not be traced out, a complaint was ultimately filed against the accused for commission of the offences punishable U/S 21 and 23 of the NDPS Act.
11. The complaint against the accused was filed in this Court on 25.05.2007 and cognizance of the offences was taken. A prima-facie case for commission of the offences punishable U/S 21(c) and 23 read with Section 28 of the NDPS Act was also found to be made out against the accused and charges for the abovesaid offences were framed against her by this Court on 10.09.2007.
12. The prosecution/DRI in support of its case has SC No. 35A/07 DRI Vs Supaporn Patsak 15 examined on record total 17 witnesses and their names and the purpose of examination etc. is being stated herein below:-
13. PW1 Sh K.S.Ratra, Intelligence Officer of DRI is the person who had gathered the above intelligence and had reduced the same into writing as Ex. PW1/A and had further put up the same before his Joint Director, Sh Sanjay Bansal. He has also stated that he was a member of the raiding team of DRI which had visited the above airport, but after the accused was identified and intercepted he came back and did not join in any further proceedings.
14. PW2 Sh Jaiveer Singh, Lab Assistant of CRCL had received the sealed sample parcel of this case on 26.12.2006 from Sh Devender Singh, an Intelligence Officer of DRI, alongwith the forwarding letter and test memos in duplicate, in intact condition vide acknowledgment receipt Ex. PW2/A issued by him.
15. PW3 Sh Devender Singh, Intelligence Officer of DRI had taken the above sealed sample parcel and documents to the CRCL on 26.12.2006, as stated above, vide forwarding letter Ex. PW3/A issued by Sh N.D.Azad, Senior Intelligence Officer of DRI. He had also deposited the sealed parcels of the case property of this case in the Valuable Godown, New Customs House, New Delhi vide deposit memo Ex. PW3/B on the same date.
SC No. 35A/07 DRI Vs Supaporn Patsak 16
16. PW4 Sh N.D.Azad, Senior Intelligence Officer of DRI had directed PW3 to deposit the parcels of the case property and sample of this case on 26.12.2006, as stated above. He had also written a letter dated 25.12.2006 Ex. PW4/A to the CMO of RML Hospital for medical examination of the accused and had sent the intimations of arrest of the accused to her mother, Ministry of External Affairs and the Embassy of Thailand vide letters Ex. PW4/B & F, PW4/C and PW4/D respectively. Besides the above, he had also received the information U/S 57 of the NDPS Act Ex. PW4/E of this case from the complainant/PW7 and had also written letters Ex. PW4/G and PW4/H to the FRRO and the Customs Department requiring some information from them and had received one letter Ex. PW4/J from the Customs Department in response to the same. The returned envelope addressed to the mother of the accused has also been brought on record in his statement as Ex. PW4/K.
17. PW5 Sh Dharambir, was posted as the Incharge of the Valuable Godown, New Customs House, New Delhi when the sealed parcels of the case property of this case were deposited with him on 26.12.2006 and he had made his endorsement on the deposit memo Ex. PW3/B in this regard.
18. PW6 Sh Sanjay Kumar, Tax Assistant of DRI had only issued the above seal of DRI used in this case to the complainant/PW7 vide entry Ex. PW6/A of the seal movement register made by him.
SC No. 35A/07 DRI Vs Supaporn Patsak 17
19. PW7 Ms Anju Singh, Intelligence Officer of DRI is the main investigating officer of this case and she has broadly deposed on the above lines of the prosecution story regarding the apprehension of the accused, recovery of the above contraband substance from the above baggage of the accused etc. and also the seizure and sealing proceedings etc. carried out by her with regard to the same. She has identified the accused as well as the remaining case property and samples etc. and has also deposed regarding the various documents prepared by her in this case. She has also deposed about the arrest etc. of the accused in this case, the recording of her above statements U/S 67 of the NDPS Act and getting conducted the proceedings U/S 52A of the NDPS Act with regard to the above recovered substance.
20. PW8 Sh Arvind Kumar Sharma, Intelligence Officer has also claimed himself to be a member of the raiding team of the DRI which had intercepted the accused and had recovered the above contraband substance from her checked- in baggage, though he has not deposed in detail regarding the search and seizure proceedings etc. carried out by the IO/PW7 regarding the recovered substance. He had also conducted some further investigation in this case and had recorded the statements U/S 67 of the NDPS Act of the Manager, Sh Kulbir Singh of the above Saina International Hotel, Sh Suresh, Accounts Manager of M/S Riya Travels and Tours (I) Pvt. Ltd., and one Sh Rajesh Kumar Sethi, SC No. 35A/07 DRI Vs Supaporn Patsak 18 proprietor of M/S Brooks Travels and some documents to him were submitted by the above persons regarding the stay of the accused in the above hotel and the ticket booking etc. of the accused.
21. PW9 Sh S.K.Mittal, Chemical Examiner of CRCL had directed PW2 Sh Jaiveer Singh to receive the above sample parcel, alongwith the above documents, in CRCL on 26.12.2006. Subsequently on 17.01.2007 he had started the analysis of the above sample, with the assistance of Sh P.R.Meena, Chemical Assistant, and had prepared the test report dated 19.01.2007 Ex. PW9/A and the above sample was confirmed to be of Heroin (diacetylmorphine). He has stated that the above report was given by Sh P.R.Meena under the signatures of this witness. He has also stated that the Section II report Ex. PW7/V in the test memo is also signed by Sh P.R.Meena.
22. PW10 Sh P.R.Meena, as stated above, is the Assistant Chemical Examiner of the CRCL who had assisted PW9 in testing of the above sample and had prepared the test report.
23. PW11 Sh Sanjay Bansal, is the Joint Director of DRI before whom the above information Ex. PW1/A was put up by PW1 and he had directed for taking action on the same vide his endorsement made on the above information itself.
SC No. 35A/07 DRI Vs Supaporn Patsak
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24. PW12 Sh Suresh.K.A. was working as an Accounts
Manager of M/S Riya Travels and Tours (I) Pvt. Ltd. and he has deposed regarding the issuance of the above air ticket of the accused for the abovesaid flight of Air China by their company on the request of M/S Brooks Travels. He has also deposed regarding the making of his statement U/S 67 of the NDPS Act Ex. PW8/D and the tendering of the documents Ex. PW8/E to E3 and photocopy of the above ticket Mark 8B in this regard, as also deposed by PW8.
25. PW13 Sh Kulbir Singh, was working as the Manager of the above Saina International Hotel and he has also deposed regarding his statement U/S 67 of the NDPS Act Ex. PW8/B recorded during the investigation and tendering of the copies of documents Ex. PW13/A of the hotel record in this regard.
26. PW14 Sh Satender was working as a loader at the IGI Airport at the relevant time and he was alleged to be an eye witness of the interception of the accused and recovery of the above contraband substance from her above baggage and also recording of the proceedings concerning the same, but, however, he has not supported the prosecution case in this regard and has only stated that he had not seen anything and he had only signed some blank documents at the instance of some officers. He has even refused to identify his alleged signatures appearing on the notice U/S 50 of the NDPS Act Ex. PW7/B, panchnama Ex.
SC No. 35A/07 DRI Vs Supaporn Patsak 20 PW7/C and its annexures, test memo Ex. PW7/V and also on some paper slips etc. shown to him.
27. PW15 Sh Rajesh Kumar Sethi is the proprietor of M/S Brooks Travels and he has also deposed regarding his statements U/S 67 of the NDPS Act Ex. PW8/G and PW8/J tendered during the investigation and the tendering of the documents/invoices Mark 8/C and 8/D at the time of making the said statements. He has also produced on record computerized copies of the above documents as Ex. PW15/A and PW15/B, which pertain to the booking of the above air ticket of the accused.
28. PW16 Sh Prashant Rajani was working as an Assistant Supervisor in Air China at the relevant time and he is a witness of the interception of the accused from the above airport and the recovery etc. of the above contraband substance from her baggage. He has broadly supported the prosecution case in this regard and has also identified the accused, all the case property and also his signatures on different documents.
29. PW17 Ms Kavita is the then Assistant Superintendent of Jail No. 6 and she is a witness of the statement U/S 67 of the NDPS Act Ex. PW7/V dated 28.02.2007 of the accused recorded in the jail in her presence.
SC No. 35A/07 DRI Vs Supaporn Patsak
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30. After the conclusion of the evidence of the
prosecution/DRI, all the incriminating evidence brought on record by the prosecution was put to the accused in her statement recorded U/S 313 Cr.P.C. and the same was either denied by the accused to be incorrect or being not in her knowledge. Though she has admitted her apprehension by the DRI Officers from the IGI Airport on the above date and time, but she has specifically denied the recovery of any contraband substance from her baggage. It is her case that she had been falsely implicated in this case and no proceedings were conducted at the Airport and all the proceedings were done at the office of the DRI, where her signatures were also forcibly taken on many blank papers and paper chits etc. and she was further brutally beaten there. However, no defence evidence was led by her on record.
31. I have heard the arguments advanced on behalf of the DRI as well as the accused and have also perused the entire record of the case, including the written arguments/submissions filed by Sh Satish Aggarwal, Ld SPP for DRI and Sh T.K.Mahapatra, Ld counsel for the accused. The evidence led on record by the prosecution and the challenges made by the defence to the prosecution case can be appreciated and discussed broadly under the following heads :
SC No. 35A/07 DRI Vs Supaporn Patsak 22 Non Compliance of the Provisions of Section 50 of the NDPS Act
32. The first challenge of Ld defence counsel to the prosecution story is that the mandatory provisions of Section 50 of the NDPS Act have not been complied with in this case as the accused was not apprised of his legal right to be searched in the presence of a magistrate or a Gazetted Officer and the notice U/S 50 of the NDPS Act Ex. PW7/B given to the accused is a defective notice as the option given to the accused for search to be conducted before a Gazetted Officer was only for a Gazetted Officer of DRI. It is his argument that though the words ' Directorate of Revenue Intelligence' are found to be deleted in the above notice, but the above deletion was made subsequently by the IO/PW7 and this fact is apparent from the fact that in the reply of the accused given on the said notice the accused had also used the words ' D RI ' after the Gazetted Officer and it is also found to be deleted.
33. It is also the argument of Ld defence counsel that the depositions made on record by the prosecution witnesses do not suggest that the accused was informed that it was her legal right to get her ' p erson ' as well as the baggage searched in the presence of a Gazetted Officer or a Magistrate. It is further his argument that though the recovery of the contraband substance in this case was SC No. 35A/07 DRI Vs Supaporn Patsak 23 effected from the ' c hecked-in-baggage' of the accused, but in view of the propositions of law laid down in cases of Dilip & Ors Vs. State of M.P. : 2007 (1) JCC (Narcotics) 5 and Union of India Vs. Shah Alam & Anr : 2009 (3) RCR (Crl) 158, Section 50 of the NDPS Act is applicable in the present case as the ' p erson ' of the accused was also searched by the DRI officers, besides her luggage.
34. However, it is the admitted case that the recovery of the above quantity of the contraband substance was effected from the checked-in-baggage/suit case of the case and no recovery of any contraband substance was effected from the ' p erson ' of the accused. Though, in the cases of Dilip & Ors and Shah Alam & Anr (supra) being relied upon by Ld defence counsel it was held that the provisions of Section 50 of the NDPS Act are attracted even in such a case as the ' p erson ' of the accused was also searched for the recovery of any suspected contraband substance, but in a subsequent decision of the Division Bench of the Hon' b le Supreme Court in the case of Ajmer Singh Vs. State of Haryana : 2010 (2) SCR 785 (Crl. Appeal No.436/2009) a contrary view has been taken and it has again been held that Section 50 of the NDPS Act is attracted only when the recovery of the contraband substance is effected from the ' person ' of the accused and it is not applicable when the contraband substance is recovered from any suit case, brief case or bag etc. being carried by the accused. Hence, in SC No. 35A/07 DRI Vs Supaporn Patsak 24 view of the above, Section 50 of the NDPS Act is found to be not applicable to the facts and circumstances of the present case. The judgment in case of Vijay Singh Chandubha Jadeja Vs State of Gujarat (2011) 1 SCC 609 and NCB Vs Sukdev Raj Sodhi 2011 (4) JCC 212 being relied upon by Ld defence counsel are also held to be not applicable in this case.
35. As far as the above overwriting in the above notice is concerned, the same can outrightly be ignored in view of the above discussion as no such notice was legally required to be given to the accused in this case as the recovery of the above contraband substance was not effected from her ' p erson ' but the same was effected from her baggage.
Unreliable Testimonies of Panch Witnesses
36. It is also the argument of Ld defence counsel that out of the two panch witnesses joined during the investigation, one Sh Satender/PW14 has turned hostile and has not supported the prosecution case regarding the recovery of the contraband substance from the possession of the accused and even the other panch witness Sh Prashant Rajani/PW16 cannot be believed as he is a stock witness of the DRI; he does not corroborate the case of the prosecution on certain important aspects of the search and seizure etc and there are material contradictions between SC No. 35A/07 DRI Vs Supaporn Patsak 25 his depositions on one side and the depositions of the other official witnesses on the other side.
37. As stated above, it is the case of the prosecution that the members of the raiding team had joined two public/panch witnesses from the premises of the IGI Airport itself and both these panch witnesses namely Sh Satender and Sh Prashant Rajani have also been examined on record by the prosecution as PW14 and PW16 respectively. As far as the testimony of PW14 Sh Satender is concerned, the same is not of any help to the case of the prosecution as he has not supported the prosecution case on record and has turned hostile and he has only stated that he does not know the date of the case, but he had not seen anything and he had only signed some blank documents/papers brought by the officers. He was even cross examined on behalf of the prosecution/DRI, after he was got declared hostile, but even during his such cross examination nothing material could be extracted from him and he has even denied his signatures appearing on some material documents like the notice U/s 50 of the NDPS Act Ex.PW7/B, the panchnama Ex. PW7/C and the documents made annexures to the same, the test memos Ex. PW7/V and PW7/S and some paper slips shown to him, which were earlier removed/detached from the parcels of the case property and samples produced in the court. He has also clarified in his cross examination that only one blank document of legal size was signed by him at the relevant time.
SC No. 35A/07 DRI Vs Supaporn Patsak 26
38. However, as far as the other witness namely Sh Prashant Rajani/PW16 is concerned, it is found that he is a natural and independent witness of the prosecution and there is no ground for discarding of his testimony by the court as he being an employee of the above Chinese Airlines was present at the Airport at the relevant time and his presence at the spot could not be disproved or made doubtful. Though some suggestions were given to him by Ld defence counsel during his cross examination that no such proceedings were conducted in his presence or no Heroin was recovered from the possession of the accused or from her baggage, but these suggestions were specifically denied by this witness to be wrong and he was not even suggested that he was not an employee of the above Airlines at the relevant time or was not present at the spot on his duties at the said time.
39. As far as the argument of Ld defence counsel regarding his being a stock witness of the DRI/prosecution is concerned, it is observed that this witness has admitted at the very initial stage of his cross examination that prior to this case he had given his evidence in one other case booked by the DRI almost 1½ years back. However, he was not questioned further by Ld defence counsel regarding the details of the above other case. But, in the opinion of the court, the above witness cannot be held to be a stock witness merely of reason of his being associated with SC No. 35A/07 DRI Vs Supaporn Patsak 27 recoveries of two different cases pertaining to DRI as it cannot be ignored that out of the seizures of contraband substances effected by the DRI, a substantial number of cases is where the seizure is effected at the premises of the IGI Airport and since this witness was working as an Assistant Supervisor in the Air China itself at the relevant time and the accused of this case was travelling by the above Airlines, there is nothing wrong if this witness was again joined as a panch witness by the DRI Officials even though he had been a witness in some other seizure of the contraband substance at the Airport itself or at any other place, which has not been got clarified from the witness on record.
40. Ld SPP for DRI has rightly relied upon a judgment of the Hon'ble Supreme Court in case Joseph Fernandis Vs State of Goa 2002 Drugs Cases 22-SC wherein it was held by the Hon'ble Supreme Court that if a person happened to witness other instances, that would not denude him of his independent character and the testimony of such a panch witness was held to be acceptable and trustworthy in a case of seizure of a contraband substance under the NDPS Act. Reliance in this regard has also been placed upon by Ld SPP for DRI on another judgment of the Hon'ble Mumbai High Court in case Deepak Ghanshyam Naik Vs State of Maharashtra 1989 Crl.L.J. 1181 wherein also it was held by their lordships that the evidence of a panch witness, who was a businessman and not an idle person, in a case under the SC No. 35A/07 DRI Vs Supaporn Patsak 28 NDPS Act cannot be discarded merely because he had acted as a panch witness once or twice earlier. Moreover, PW16 in this case appears to be a truthful witness as in the very opening lines of his cross examination he has admitted the factum of making depositions for DRI in evidence in some other case even though he was not given or put any particulars of the other case by Ld defence counsel or confronted with any document of that case.
41. On perusal of the testimony of PW16, as made in this court, it is found that he has specifically deposed on record that he was present on his duties at the Airport on 24.12.2006 when he was informed by the officers of the Customs that one Thai passenger, who had checked-in and was bound to travel for Beijing from Delhi by the flight of Air China, was required to be searched alongwith her checked-in baggage. He has also stated further that after the off- loading of the said passenger, she was taken to the Customs Preventive Room at the departure level of the above Airport, alongwith her checked-in baggage and he has also stated further that after some enquiry from and conversation with the above passenger, the baggage of the passenger was checked, besides the search of the passenger conducted by the lady officer in privacy, and it was found to contain some personal effects, i.e. clothes and cosmetics, and after the above bag was emptied by the officers, it was observed by them that the bottom of the above bag was found to be abnormally thick (hard). He has SC No. 35A/07 DRI Vs Supaporn Patsak 29 further stated specifically that the officials had also opened the bag from the bottom and recovered one packet wrapped with the material like tape of brownish colour and on further examination it was found to contain powdery material, which was white in colour. He has also stated on record that the officials had tested the above recovered material with some machine and had confirmed to him that it was Heroin, though he was not able to remember the exact weight of the recovered substance. He has also stated that the officials had also drawn some samples from the recovered powder and the same were sealed in envelope packets and the remaining substance and the bag were also seized and sealed and they had also used some paper slips for sealing of the above contraband substance and samples etc. and he had appended his signatures thereupon.
42. He has also stated further that at that time the above lady passenger was carrying one lady purse and one strolley bag and though nothing incriminating was recovered from the purse of the lady passenger, but some currency and papers were recovered and he had also identified his signatures on the panchnama Ex. PW7/C prepared at the spot in his presence and also on various paper slips shown to him in the court, which were earlier taken on record during the production of the case property in the court. He has also identified his signatures on various documents like the air ticket of the accused Ex. PW7/J, her baggage tag PW7/H, boarding pass Ex. PW7/G, visiting card Ex.PW7/F and SC No. 35A/07 DRI Vs Supaporn Patsak 30 the counter part of the boarding pass Ex. PW1/Z/6, which were recovered from the possession of the accused and were got signed from him at that time. Though he has not been able to tell the name of the above lady passenger, but he has duly identified the accused to be the said passenger.
43. It is clear from the above depositions of PW16 that he has corroborated the case of the prosecution on all the material particulars, i.e. the search of the above checked-in baggage of the accused by the DRI officers in his presence and the recovery of the above packet containing the above Heroin from the same in his presence, the seizure and weightment etc. of the above Heroin and the drawing of samples, therefrom and also the process of preparation of parcels of the samples and remaining case property and the preparation of documents like the above panchnama at the spot. Though he has not stated specifically that the above notice U/S 50 of the NDPS Act Ex. PW7/B was also served upon the accused, but he has also stated on record that an enquiry was conducted from the accused as to whether she was carrying any objectionable item with her and the accused had replied in negative. He has also stated that the accused was informed that her baggage was required to be searched and this enquiry from the accused was conducted in writing and on being asked, the accused had also given her reply regarding the search of her baggage in writing. Hence, even though this witness has not made detailed depositions regarding the process of SC No. 35A/07 DRI Vs Supaporn Patsak 31 sealing and seizure etc. of the above contraband substance and the service of a notice U/S 50 of the NDPS Act, but he being a layman was never expected to make such depositions in detail and it is sufficient corroboration to the case of the prosecution if he corroborates the prosecution case on material particulars like the recovery etc. of the above contraband substance from the baggage of the accused in his presence, as stated above, and not in minute details. Hence, the testimony of PW16 Sh Prashant Rajani is held to be totally reliable, trustworthy and can be acted upon. Though some contradictions have also been pointed out by Ld defence counsel in his testimony and the testimony of other official witnesses, but the same will be discussed in the later part of this judgment.
Preparation of the Test Memos at the Spot
44. The next argument of Ld defence counsel is that the evidence led by the prosecution on record suggests that the test memos were not prepared by the IO/PW7 at the spot and he has also referred to the cross examination of the IO/PW7 on this aspect wherein the IO on being shown one of such test memos Ex. PW7/V has admitted in her cross examination that the same from point E to E1 was in the same form in which it was typed by her at the spot and no alteration/correction/addition was done by her after typing of the same. It is his contention that in the above test SC No. 35A/07 DRI Vs Supaporn Patsak 32 memo Ex. PW7/V the dates 24.12.2006 and 26.12.2006 have been mentioned against column no. 5 as the dates of drawl and dispatch of the sample, whereas this memo was prepared on the date of drawing of the samples, i.e. on 24.12.2006, and the date of dispatch, i.e 26.12.2006 was never expected to be given in the above test memo on that day and the very fact that this date is given in the said test memo shows that this document was not prepared on 24.12.2006 and the same was prepared on 26.12.2006 only. He has also referred to a judgment of the Hon'ble Delhi High Court in case of Saifulla Vs State (Delhi Administration) 1993 Drugs Cases 311 in this regard.
45. The above contention of Ld defence counsel as well as the above document and the testimony of the IO/PW7 on this aspect have been considered and appreciated. Though the dates 24.12.2006 and 26.12.2006 are both found to be mentioned in the above document and further though the IO/PW7 has also stated that she had not made any correction/modification/altercation in the said document after preparation of the same, but the above discrepancy cannot be given much weight as it was imperative upon the Ld defence counsel to have sought a specific explanation of the IO/PW7 regarding the above dates appearing in the said document. The IO/PW7 was never specifically asked by him as to why and how the date 26.12.2006 is appearing in the abovesaid column no. 5 of the above document and her attention should have been drawn by Ld defence counsel to SC No. 35A/07 DRI Vs Supaporn Patsak 33 the above discrepancy if the intent of Ld defence counsel was to confront her with the above document. In the absence of that having been done, the above aspect has remained unexplained and the same only cannot be made to be a ground for acquittal of the accused in this case, unless there is any other material or evidence on record to show that the above document was not prepared at the spot or the sample parcel pertaining to the same was ever tampered with at any stage. The judgment in case of Saifulla (Surpa) has been given in a different context wherein apart from the non supporting of the case of the prosecution by the sole independent witness, there were various other factors leading to the acquittal of the accused, serious doubts regarding the preparation of the FSL Form and its deposit etc. in the malkhana and with the CFSL, whereas no such circumstances exist in the present case.
Intactness of the Parcels of Case Property and Samples
46. It has also been argued by Ld defence counsel that the prosecution has not proved the complete chain of its evidence as the link evidence is missing on record to show that the parcels of the samples and the case property prepared at the spot had remained intact and were not tampered with at any stage subsequent thereto. It has been stated that the IO/PW7 Ms Anju Singh was duty bound to deposit the above parcel of the sample in the CRCL and that of the case property in the Valuable Godown personally, but SC No. 35A/07 DRI Vs Supaporn Patsak 34 she had not done the same and it is also pointed out that she is silent in her examination in this court as to how the above sample parcel had reached at the hands of PW4 Sh N.D.Azad, before the same were handed over by him to PW3 Sh Devender Singh for depositing the same in the office of the CRCL. It is also argued that it is not clear from the evidence as to how many hands the sealed parcels of the sample and the case property had changed before being deposited with the CRCL and the Valuable Godown.
47. As far as the argument of Ld defence counsel to the effect that the IO/PW7 was personally required to deposit the above parcels is concerned, the same is found to be without any force as there is no such mandatory requirement under any provision of law. It is a matter of record and also deposed specifically by the IO/PW7 that the above parcels of the sample as well as of the case property were prepared at the spot itself and the same were duly sealed there with the above seal of DRI affixed over a paper slip each pasted on the parcels, which were got signed from the accused, the above panch witnesses as well as signed by the IO/PW7 herself. PW4 Sh N.D.Azad has also specifically stated on record that the above sample parcel was with him since 25.12.2006 itself, though he has not been able to tell the specific time since which the same was with him. It is also on record in the statements of PW4 Sh N.D.Azad, PW3 Sh Devender Singh as well as of PW2 Sh Jaiveer Singh that the above sealed parcel was taken by PW3 SC No. 35A/07 DRI Vs Supaporn Patsak 35 to the office of the CRCL, after the same was entrusted to PW3 by PW4, and it is also stated specifically by PW2 that the same was received by him in intact condition. The above sample parcel was taken by PW3 to the office of the CRCL vide forwarding letter Ex. PW3/A and the same was received there by PW2 vide acknowledgment receipt Ex. PW2/A. Both the above documents stand duly proved on record and the acknowledgment Ex. PW2/A of the CRCL duly mentions that the above sample Mark A was having three seals of Directorate of Revenue Intelligence thereon and all the above three seals were in intact condition. PW2 has also stated specifically that he had received the above sample parcel on the directions of Sh S.K.Mittal, Chemical Examiner, CRCL, alongwith test memo in duplicate and the forwarding letter, and it was diaried by him and was handed over to Sh S.K.Mittal in intact condition.
48. Sh S.K.Mittal has also been examined on record as PW9 and he has also stated specifically that the above sealed sample parcel was again taken out of the strong room on 17.01.2007 and the chemical analysis thereof was started, with the assistance of Sh P.R.Meena, Chemical Assistant and it is also deposed by him specifically that the above sample parcel were sealed with three lac seals and the seals were in intact condition. It is also deposed specifically by PW2 and PW9 that the above seals affixed on the sample parcel were tallying with the facsimile of the above seal of DRI as given in the test memo. Hence, the SC No. 35A/07 DRI Vs Supaporn Patsak 36 depositions of the above witnesses and the documents proved on record rule out any tampering with the above parcel of sample at any stage till its examination in the CRCL or even any possibility thereof. The depositions made by PW9 and PW10 further rule out any possibility of tampering of the above sample even during the process of testing.
49. Similarly, the parcels of the remaining Heroine and the above bag etc. were also prepared by the IO/PW7 at the spot itself and they were also sealed with the above seal of DRI. It is also on record in the statements of PW3 as well as PW4 that the above parcels of the remaining case property were handed over by PW4 to PW3 for depositing the same in the valuable go-down, New Customs House on the same day on which the sample parcel was sent to the CRCL, i.e. on 26.12.2006. It is also stated by PW4 that at that time when the above parcels of case property were sent for deposit, the same were with the Investigating Officer. The above parcels were handed over by PW3 in the valuable go- down to PW5 Sh Dharamveer, who was working as In-Charge of the above go-down and it is specifically deposed by PW3 that he was entrusted and had deposited two packets of the case property sealed with the above DRI seal and these packets were marked as 1/2 and 2/2 and the same were deposited with PW5 vide deposit memo Ex. PW3/B, which was duly signed by PW5 also at the time of receiving the above parcels, besides already having been counter-signed by PW4 Sh. N.D.Azad.
SC No. 35A/07 DRI Vs Supaporn Patsak 37
50. PW5 has also stated specifically that the above two packets of case property were sealed with the DRI seal and the same were in intact condition and he has also made his endorsement in this regard on the above deposit memo Ex. PW3/B, which stands duly proved on record from the depositions of PW3 as well as PW4. The complete details of the above parcels is found mentioned in the above document and it is also mentioned in the endorsement made by PW5 on the above document at the time of receiving of the above parcels that the DRI seals affixed thereon were in intact condition. Hence, from the depositions of the above witnesses and the above document proved on record, it is clear that even the above parcels of case property were not tampered with at any stage till their deposit in the valuable go-down and even after that and no suggestions are also found to have been given to PW5 regarding tampering of the same in his custody in the above go-down at any time.
51. It is also a matter of record that the proceedings U/S 52A of the NDPS Act were also got conducted by the IO/PW7 Ms Anju Singh regarding the certification of the above panchnama and the parcels of the case property etc. and the original of the above proceedings has also been brought on record during the examination of the IO/PW7 as PW7/X, alongwith the sealed envelope and paper slips etc. pasted thereon, which have also been exhibited separately.
In the said proceedings, which were conducted in the
SC No. 35A/07 DRI Vs Supaporn Patsak
38
presence of the accused as well as the IO/PW7 etc. on 24.08.2007, the correctness of the above panchnama and the proceedings conducted on 24.12.2006 were certified and the proceedings are also found to be signed by the IO/PW7 as well as the accused, besides the Ld MM concerned. During the entire cross examination of the IO/PW7, not even a single question has been put to her challenging the veracity of the above proceedings nor the correctness or veracity thereof has been challenged during the other part of the trial.
52. It is also observed that when the case property as well as the samples were produced in this Court for the first time during the examination of the IO/PW7 and the same were also duly identified by her, theses parcels were all found to be sealed with the seals of AGB, which was affixed by the Ld MM, who had conducted the above proceedings and no tampering of any kind was also observed with any such parcels of the case property or of the samples produced before the IO/PW7 in the Court. Hence, no tampering of any kind can be observed or can be inferred with the parcels of the case property or of the samples at any stage, from the evidence led by the prosecution on record and simply because the IO/PW7 has not specifically stated the date or time when the above parcels of the samples were handed over to PW4 or had kept mum regarding keeping the parcels of the case property with her, no such inference of tampering with the same can be drawn. The SC No. 35A/07 DRI Vs Supaporn Patsak 39 judgment in case of Sanjay Kumar Vs. State 2003 (2) JCC 1056 being relied upon by Ld defence counsel is also not found applicable in the present case.
Identification of accused and her baggage
53. The next contention of Ld defence counsel is that the evidence led by the prosecution on record is not clear as to how the accused Supaporn Patsak was identified by the members of the raiding team of DRI at the airport and how her checked-in baggage/luggage was identified as such and how the same can be linked with the accused. It is argued that no member of the raiding team of DRI was having any photograph for her identification and even no description of the accused was given in the secret information Ex. PW1/A and hence, the identity of the accused as such and also of her above baggage, from which the above contraband substance is alleged to have been recovered, is doubtful in this case and the said baggage cannot be linked with the accused.
54. It is observed that PW1 Sh K.S.Ratra, PW8 Sh Arvind Kumar and the IO/PW7 Ms. Anju Singh are the three members of the raiding team of DRI examined on record in this court and it has been admitted by all of them that no photograph of the accused was available with them when they had reached at the above airport. A bare perusal of the secret information reduced into writing as Ex. PW1/A also SC No. 35A/07 DRI Vs Supaporn Patsak 40 shows that even no physical description of the accused, i.e. the lady passenger to whom the above information pertained, is given or recorded therein and it is only mentioned that the above lady passenger is a Thai National having a Thailand passport No. X-671742 and she was to travel by the above flight no. CA-948 of Air China to Beijing from the above airport.
55. However, the evidence led by the prosecution on record leaves no room for doubts for this court that it is the accused Supaporn Patsak, also named in the above information Ex. PW1/A, to whom the said information pertained and she was duly identified by the members of the raiding team at the spot. It is the case of the DRI from the very beginning that the accused was off-loaded from the above flight and this fact is also mentioned in the complaint Ex. PW7/A itself filed by the IO/PW7. PW1 in his statement has deposed that the accused had met him for the first time outside the Customs office at the above airport and she had already cleared her immigration by that time and her baggage was alongwith her at that time and he cannot say whether the luggage was called back from the plane or not. PW8 Sh Arvind Kumar has also stated on record that the accused was off-loaded from the above flight and the accused was identified by the checking of the passports of the passengers and the passport of the accused was checked by him. He has also stated that when he had checked the passport of the accused, she was only SC No. 35A/07 DRI Vs Supaporn Patsak 41 having her handbag and some official of the above Airlines had brought the luggage of the accused and he has further stated specifically that the accused had not boarded the plane by that time. Even the IO/PW7 has stated specifically on record that the accused was off-loaded from the flight and they had come to know about the accused and identify her on checking of the passports of the passengers at the airport and she has also stated that the passport of the accused was checked by PW7 Sh Arvind Kumar. She further states that the accused had already checked to board the above flight when she was intercepted at the airport and at that time she was carrying only a handbag and her luggage had already been checked-in and the same was brought by some official of the concerned Airlines.
56. Hence, simply because PW1 has stated that he had identified the accused on the basis of the above information, the same in no way suggests that the accused was identified or intercepted by PW1 alone as the above members of the raiding team of DRI were acting together at the spot and were instrumental in the identification of the accused. Moreover, the IO/PW7 and PW8 Sh Arvind Kumar both corroborate each other to the effect that it was PW8 who had checked the passport of the accused and the identification of the accused was made there on the basis of checking of the passports of the passengers. Though, it has been stated on record by the IO/PW7 and PW8 that no enquiries were made by both of them from the officials of SC No. 35A/07 DRI Vs Supaporn Patsak 42 the above Airlines regarding the details of the passengers and it is further stated by the IO/PW7 that she did not check the passenger manifest, but the same is also not sufficient to make the identity of the accused by them to be doubtful as the IO/PW7 has also stated on record that some enquiries were made at the spot by some member of the raiding team. In any case, since the secret information received in this case was confidential in nature and was not meant to be disclosed to anyone, there is no harm in not disclosing the same by the members of the raiding team to the officials of the above Airlines and they had also been successful in identification of the accused as the concerned lady passenger to whom the above secret information Ex. PW1/A pertained from the checking of the passports of the passengers.
57. Even otherwise, the accused in her statement recorded U/s 313 Cr.P.C has clearly admitted on record that she was present at the above airport on the above date and time and was also scheduled to depart to Beijing by the above flight of Air China and she has also further admitted in her above statement that she was picked up from the above airport by some officers of the DRI at the said time. Hence, the apprehension of the accused from the above airport on the above date is not under any doubts as this fact has been clearly proved by the prosecution on record and even admitted by the accused in her above statement. However, though the accused in her above statement has also SC No. 35A/07 DRI Vs Supaporn Patsak 43 claimed that she was picked up when she had come outside the airport to make some ISD call to her family, but the onus of proving the same was upon the accused herself, which she had failed to discharge in this case and to prove her apprehension not from within the premises of the airport, but from outside the said airport. Moreover, it is also the case of the prosecution that at the time of interception of the accused, she was also found to be in possession of some currency amounts and some documents which were recovered from the handbag carried by her. The above three members of the raiding team duly corroborate each other to the effect that the accused was only carrying her handbag at the above time and her luggage/suitcase has already been checked-in and it has also been stated specifically by the IO/PW7 and PW8 that the same was retrieved and brought by some official of the above Airlines subsequently. The evidence of the above witnesses regarding the recovery of some currency amounts and some documents from the handbag of the accused is also duly corroborated by the independent witness Sh Prashant Rajani/PW6 and these documents included some photographs of the accused Ex. PW7/E, visiting card of the above Siana Hotel Ex. PW7/F, boarding card of the above flight Ex. PW7/G, baggage tag Ex. PW7/H and air ticket of the above flight Ex. PW 7/J and all these original documents have been brought on record and duly identified by the witnesses. The above travel document of the accused recovered from her possession at the relevant time also SC No. 35A/07 DRI Vs Supaporn Patsak 44 corroborate the case of the prosecution regarding the scheduled travel of the accused by the above flight and her apprehension from the airport after she had cleared the immigration.
58. As far as the identity of the above checked-in baggage/suitcase of the accused, from which the recovery of the contraband substance was effected, is concerned, the same also stands proved on record from the specific depositions of the IO/PW7, PW8 as well as PW16 Sh Prashant Rajani in whose presence the above suitcase was cut opened and the above contraband substance was recovered. The counter-part of the baggage tag found in possession of the accused is the same which was attached with the above suit case of the accused and same is also brought on record. The above baggage/suitcase was also produced before the Ld MM concerned and certified during the proceedings U/s 52A of the NDPS Act Ex. PW7/X, alongwith its false cavity, and also as such in the court and duly identified by the witnesses. Even the accused in her statement U/S 313 Cr.P.C or during the suggestions given to the witnesses has not disowned the above suitcase brought on record and her case is of total denial about the recovery of any Heroin or other contraband substance from her possession or from her above baggage. Though, the Ld defence counsel has argued that none of the witnesses has deposed on record that the above baggage tag was found attached or pasted with the boarding pass of the accused, but the baggage tag or SC No. 35A/07 DRI Vs Supaporn Patsak 45 counter part thereof is duly found to be pasted on the ticket of the above flight recovered from the above accused. Hence, it also stands duly established on record that the above checked-in baggage/suitcase from which the above packet of Heroin was recovered belonged to the accused and none else.
Possession of Accused of the above Contraband Substance and Conscious Possession
59. The next point of contention raised by the Ld defence counsel is that the prosecution has not proved on record beyond reasonable doubts that the above contraband substance has been recovered from the possession of the accused and her possession of the same was a conscious possession. It is pointed out that none of the prosecution witnesses has been able to tell that the above suitcase was opened with the help of any key provided by the accused nor any key of the said suitcase was recovered from her possession or has been brought on record. It is also his argument that since the above contraband substance was concealed in a false cavity of the said suitcase, the accused cannot be taken to be aware regarding the existence of the above contraband substance in the above suitcase and her possession of the said substance cannot be termed to be a conscious possession.
60. As discussed above, the prosecution has SC No. 35A/07 DRI Vs Supaporn Patsak 46 successfully proved on record that the above suitcase from which the above contraband substance was recovered belonged to the accused. It has also come on record in the statements of the IO/PW7 as well as PW8 that the above suitcase was locked when it was retrieved and produced before them and the lock thereof was opened by them and the IO/PW7 has also stated it specifically that the said lock was opened with the help of the accused. Hence, even if it is not clear from their depositions that whether the above was a number lock or some other lock and further even if no key of any other lock has been brought on record, the same cannot be made a ground for drawing any such inference that the above suitcase did not belong to the accused as the identity of the said suitcase as that of the accused stands duly proved on record from the oral and documentary evidence adduced on record. It is also specifically deposed by the above witnesses on record, and also by the panch witness Sh Prashant Rajani, that one packet was recovered from the false cavity of the above suitcase and above packet was subsequently found to be of Heroin on testing by the IO/PW7. The IO/PW7 has also made detailed depositions with regard to the process of drawing of samples etc., which are not under challenge and she also stands duly corroborated with regard to the proceedings conducted at the spot by PW8 as well as PW16. Hence, it can be held to have been established on record that the above contraband substance was recovered from the possession of the accused. Though, during the course of recording of her statement U/S SC No. 35A/07 DRI Vs Supaporn Patsak 47 313 Cr.P.C., the accused has all together taken a defence of denial of recovery of the above contraband substance, but her above defence has remained vague and unsubstantiated. On the other hand the oral evidence led by the prosecution on record is duly substantiated by various documents prepared at the spot and proved on record, regarding the recovery of the said substance from the possession of the accused.
61. However, now it is to be seen whether the possession of the above contraband substance by the accused can be termed to be a ' c onscious possession' of the said substance or not.
62. Section 35 of the NDPS Act deals with the culpable mental state of an accused in a prosecution under the NDPS Act and it prescribes that in any offence under this Act which requires such a culpable mental state of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Section 54 of the NDPS Act also lays down that in trials under this Act, it may be presumed, until and unless the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance etc, for the possession of which he fails to account satisfactorily.
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63. A combined effect of the above two provisions is that if an accused is found to be in possession of any contraband substance, then the court shall presume that he has committed an offence under the above said Act pertaining to the said substance, unless and until the contrary is proved, if he fails to account satisfactorily for the said possession. Further, if a criminal mental state of the accused is required to be established for the said offence, then the court shall also presume that the accused had that criminal mental state and it shall only be a defence of the accused to prove that he had no such mental state.
64. In the instant case, since the accused has been held to have been found in physical possession of the above contraband substance, she is presumed to be having the criminal mental state to possess the above contraband substance and to have committed an offence regarding the same and the burden lied upon the accused to prove the absence of the above criminal mental state or to account for her possession of the above contraband substance. However, the accused is found to have failed to discharge the above burden as nothing has been brought on record to establish that she was not aware regarding the presence of the above contraband substance in her above checked-in- baggage.
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49
65. While, dealing with the concept of 'conscious
possession' the Hon' b le Supreme Court in the case of Madan
Lal & Another Vs State of H.P. : (2003) 7 SCC 465 has held as under:-
" 26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. "
66. Further, the Hon' b le Apex Court in case of Dharampal Singh Vs State of Punjab : 2010 (10) SCALE has also held as under :-
" From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act given statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. "
67. Therefore, in view of the above, it is held that the possession of the accused of the above contraband SC No. 35A/07 DRI Vs Supaporn Patsak 50 substance was a conscious possession.
Statements U/S 67 of the NDPS Act of the Accused and Retraction thereof
68. It is now well settled that a statement U/S 67 of the NDPS Act by an accused under the NDPS Act is very much admissible in evidence and can be considered by the court and even made the basis of conviction of the accused, if made voluntarily, as the same is made at a time when the accused is not under arrest. Reference in this regard can be made to the cases of Raj Kumar Karwal Vs Union of India & Ors. (1990) 2 SCC 409 and Kanhaiya Lal Vs Union of India 2008 (1) JCC (Narcotics) 23 etc. However, it is also now well settled that if such a statement already stands retracted by an accused, then it will not be safe to rely upon such a statement for conviction of the accused, unless there is some independent and corroborative evidence to substantiate the contents thereof and further that the court has to look into the entire facts and circumstances of a particular case to find out if such a statement has been made voluntarily or not and also the circumstances leading to the retraction thereof and its effect etc. In a case if such a confessional statement has been retracted by an accused, then his above retraction is now not required to be formally proved on record as per the provisions of the Evidence Act, as was earlier held in case of Kanhaiya Lal (Supra) being relied upon by the DRI.
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69. In case of Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124 there was no recovery of any contraband substance from the possession of the accused and the only evidence against him was his retracted confessional statement and it was held by the Hon' b le Supreme Court that it was not safe to maintain the conviction of the accused on the basis of his above retracted statement. Even in case of Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681 it was held by the Hon' b le Supreme Court that a confessional statement of an accused like one U/S 108 of the Customs Act is though technically admissible in evidence, but it is a very weak piece of evidence and it is not safe to base conviction on the same. In the subsequent case of Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 also it was again held by the Hon' b le Supreme Court that though as an abstract proposition of law a conviction can be maintained solely on the basis and confession made U/S 67 of the NDPS Act, but the rule of prudence requires from the court some corroboration thereof.
70. In this case the accused is stated to have made three different statements under the above provisions and out of these her two statements Ex. PW7/M and PW7/O are stated to have been made on 25.12.2006, i.e. on the next SC No. 35A/07 DRI Vs Supaporn Patsak 52 following date of the above seizure of Heroin effected in this case. These statements have been tendered in response to the summons Ex. PW7/L and PW7/N respectively and both these statements have been tendered by the accused in English language and in her own handwriting and the same have been tendered before the IO/PW7 Ms Anju Singh.
71. The first summon Ex. PW7/L issued to the accused is dated 24.12.2006, i.e. the date of the above seizure, and it is for the appearance of the accused before the IO on 25.12.2006 at 6 AM. The IO/PW7 has stated that from the airport the accused had accompanied them to their office after the seizure and her statement Ex. PW7/M was recorded in response to the above summons. The above statement has been written in a language known to the accused and it has also been written in a very good flow of English language and contains various personal details like the names and details of her family members and her educational background etc. In this statement the accused has not claimed that she was conscious or aware regarding the presence of the above contraband substance in her above suitcase and she has specifically denied the knowledge thereof and has claimed that her above suitcase had got damaged on the way when she had landed in India on 15.12.2006 and it was taken away by the above Mr Chinedo for repairs on 21.12.2006 and it was in his custody from 21.12.2006 to 23.12.2006 and the above contraband substance might have been concealed therein by Mr Chinedo.
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72. The second statement Ex. PW7/O of the accused was recorded in response to the summons Ex. PW7/N dated 25.12.2006 served upon the accused for her appearance before the IO/PW7 at 10 AM on the same day. It was so recorded because some disclosures made by the accused in her statement Ex. PW7/M regarding her stay in the above hotel Saina International during the previous two visits to India could not be corroborated in a similar statement Ex. PW8/B of Sh Kulbir Singh/PW13, the Manager of the above hotel, recorded on 25.12.2006 itself, after the recording of the first statement Ex. PW7/M of the accused. It is in her second statement Ex. PW7/O that the accused is stated to have confessed about her knowledge of the presence of the above Heroin concealed in her above suitcase and she has also stated therein specifically that she knew that Mr Chinedo had concealed Heroin in her above strolley bag and the same was to be delivered in China to one Obiora and she was to get 2000 US Dollors for carrying the above consignment of Heroin from Delhi to Beijing. She has also disclosed therein one contact number on which the above Obiora was to be contacted by her after reaching at Beijing.
73. The third statement U/s 67 of the NDPS Act of the accused is Ex. PW7/V and it is dated 28.02.2007 and the same was tendered before the IO/PW7 as well as PW17 Ms Kavita in Tihar Jail and PW17 was the Assistant Jail SC No. 35A/07 DRI Vs Supaporn Patsak 54 Superintendent at that time. This statement was taken only with regard to the verification of her address of Thailand disclosed by her in her previous statement, on which the intimation of her arrest was sent to her mother and the same was received back undelivered. Hence, it is the second statement Ex. PW7/O of the accused which is confessional in nature, as far as her knowledge of the presence of the contraband substance is concerned, though her other statements when read in continuity corroborate the case of the prosecution regarding her apprehension from the above airport and with the above luggage and also the recovery of the above packet of Heroin from the said luggage.
74. The stand of the accused in this regard is that her above statements are not her voluntary statements, but since the above statements have been tendered in the handwriting of the accused herself and also in a language known to her, as discussed above, there is no reason for arriving at any such conclusion and that too when the statement Ex. PW7/M of the accused also contains many personal details of the accused, which could never have been in the knowledge of the DRI Officers. The retraction of the accused Mark PX1 on record was filed and received in this court at a very belated stage as the seizure of the contraband substance in this case was effected on 24.12.2006 and the first two statements Ex. PW7/M and PW7/O of the accused were recorded on 25.12.2006 whereas the above retraction was received in this court only on SC No. 35A/07 DRI Vs Supaporn Patsak 55 01.06.2007, through the Jail Superintendent vide his endorsement dated 31.05.2007, i.e. about 5½ months after the making of first two statements and even after about 3 months of the making of her third statement Ex. PW7/V dated 28.2.2007. The above retraction application of the accused is also found to be in the handwriting of the accused herself and in that retraction application she has vaguely and flatly denied the recovery of the above contraband substance from her possession or baggage and has also claimed that she was beaten physically by the DRI Officers in their office and was forced to write statement in pressure and she do not even know to read or speak English properly. The falsehood of her retraction application is visible from the document itself as even her retraction has been written by her in the English language itself, which in her earlier statement she had claimed to be knowing. The retraction of her confession has come at a very belated stage and that too even in a very vague manner and without referring to the relevant specific parts of her previous statements, which were intended to be retracted.
75. It cannot be ignored that she had not led on record any defence evidence to substantiate her vague plea of false implication in this case and hence when her above statements and retraction applications are considered in entirety, the same leave no room for doubt for this court that the earlier statements of the accused were made voluntarily and the above retraction application was made SC No. 35A/07 DRI Vs Supaporn Patsak 56 subsequently only to wriggle out of what was stated by her in her previous statements. There is also another circumstance which shows the voluntariness of her above statements and it is the absence of her knowledge or consciousness of her possession of the above contraband substance in her first statement Ex. PW7/M and had these statements been dictated by the DRI Officers, the knowledge of the presence of the above contraband substance on her part could have been inserted or included in the very first statement Ex. PW7/M of the accused and there was no question of not including or denying the same in the first statement Ex. PW7/M or deferring the same till the recording of the second statement Ex. PW7/O of the accused. Though, it has been pointed out by Ld defence counsel that some facts allegedly disclosed in these statements made by the accused, like the previous visits of the accused to India and her stay in Saina International Hotel etc. could not be corroborated by the DRI Officers during the investigation and this is an evidence of the fact that the above statements were falsely created by them, but this argument is not inspiring any confidence as simply because some disclosures made by the accused in her such statements have not been verified or were made by her falsely, it cannot be a ground to discard or disbelieve the entire statements as at sometimes the accused may state some false facts in his or her statements to befool the investigating agency. Hence, it is being held that the above statements U/S 67 of the NDPS Act made by the accused are her SC No. 35A/07 DRI Vs Supaporn Patsak 57 voluntary statements and her retraction of the same by the subsequent application/statement is not good and her above statements U/S 67 of the NDPS Act can be considered by this court and acted upon. Even otherwise, the same are not the only evidence available before this court against the accused and rather the same are an additional evidence to corroborate the other oral and documentary evidence led by the prosecution on record regarding the recovery of the above contraband substance from the possession of the accused. In view of the factual and the legal position discussed above, the judgments in case of Patrick Bruno Wafula Vs. Department of Customs 2001 (2) JCC Delhi 250 and Raju Premji Vs. Commissioner Shillong Unit 2009 (3) JCC (Narcotics) 153 being relied upon by Ld defence counsel can be distinguished as in the first case the retraction was made by the accused just after about 13/14 days of his statement and in the second case there was no recovery of any contraband substance from the possession of the accused.
Weight of the Sample
76. One other ground of challenge to the prosecution story is that the weight of the sample sent in the CRCL has been given to be 6.6 Grams in the test memo Ex. PW7/V sent with the sample parcel whereas it is the case of the prosecution that all three samples drawn out of the above SC No. 35A/07 DRI Vs Supaporn Patsak 58 contraband substance were of 5 Grams each. It is the argument of Ld defence counsel that the above discrepancy and difference in weight of the sample parcel is material and raises doubts regarding the veracity of the above sample and the accused is liable to be acquitted on this ground. One judgment in case Rajesh Jagdamba Avasthi Vs State of Goa 2005 (9) SCC 773 has also been relied upon in this regard.
77. The evidence led on record by the prosecution has been appreciated and it is found that the weight 6.6 Grams of the sample parcel mentioned in the above test memo sent to CRCL is the gross weight of the sample and not the net weight and the weight of the polythene pouch in which the sample was contained is found included in the above weight. Hence, the above difference in the weight is not found to be material enough to raise any doubts about the genuineness or veracity of the above sample. The judgment in case of Jagdamba Avasthi (Supra) being relied upon by the Ld defence counsel can be differentiated as in that case the weight of the substance sent for testing was found to be 98.16 Grams against the weight of 100 Grams and 82.54 Grams against the weight of 115 Grams, whereas in the present case only one sample has been sent for testing and when the weight of the empty polythene is also taken into consideration, the above gross weight of 6.6 Grams against the sample weight of 5 Grams is not found to be abnormal and the difference can be attributed to the SC No. 35A/07 DRI Vs Supaporn Patsak 59 weight of the empty pouch.
Conclusions
78. As discussed above, the possession of the accused of the above contraband substance has been duly proved on record and it also stands proved that it was her conscious possession. The oral evidence of the DRI Officers led on record is duly corroborated by the documents proved on record and even the testimony of one panch witness Sh Prashant Rajani/PW16. The issuance of the above ticket for the above journey of the accused is also duly corroborated from the testimonies of PW12 Sh Suresh.K.A and PW15 Sh Rajesh Kumar Sethi and the records brought by them. Hence, simply because one other panch witness Sh Satender has not supported the prosecution case and has turned hostile, the same is no reason or ground to disbelieve the testimony of the other panch witness or his presence at the spot at the relevant time and he is found to be a natural witness of the incident, being an official of the above Airlines.
79. Though some contradictions have been pointed out by Ld defence counsel in the testimonies of the official witnesses of recovery on one side and that of PW16 on the other side with regard to the timings of apprehension of the accused and the proceedings conducted at the spot, but the same cannot be given much weight as the same can be SC No. 35A/07 DRI Vs Supaporn Patsak 60 attributed to the lapse of time and the fading human memory and even otherwise the same become irrelevant when there is convincing evidence on record to prove the apprehension of the accused from the above airport and also the recovery of the above contraband substance from her baggage.
80. In the test report Ex. PW9/A of the above sample proved on record, the sample has been confirmed to be containing diacetylmorphine and the percentage thereof has been opined to be 73.9% and even going by the above percentage of diacetylmorphine, the purity/percentage weight of the above 1.300 KG Heroin recovered from the possession of the accused comes to about 960 Grams which is still a ' commercial quantity ' of the above contraband substance as under the NDPS Act 5 Grams of Heroin has been prescribed to be a ' small quantity ' and 250 Grams to be a ' commercial quantity. Hence, the charge for the offence punishable U/S 21(c) of the NDPS Act framed against the accused stands duly substantiated.
81. Though the above contraband substance was yet not exported out of India by the accused, but certainly the attempt thereof has been proved on record as it has come on record during the evidence that the accused had already checked-in her above luggage containing the above contraband substance and the same was recovered only after her above luggage was got retrieved from the officials of SC No. 35A/07 DRI Vs Supaporn Patsak 61 the Air China Airlines. The above acts of the accused had fallen short of the actual commission of the offence only because of her apprehension by the DRI Officers in pursuance of the above information, otherwise the accused would have been successful in exporting or taking out the above substance out of India. Hence, it can also be said that the prosecution has also successfully proved an attempt on the part of the accused to export the above contraband substance and its charge for the offence punishable U/S 23(c) framed against the accused, read with the help of Section 28 of the NDPS Act.
82. In view of the above discussions, it is held that the prosecution has successfully proved on record its charges for the offences punishable U/S 21(c) and Section 23(c) read with Section 28 of the NDPS Act framed against the accused. The accused is, therefore, held guilty and convicted for the above said offences. Let, she be now heard on the quantum of sentence.
Announced in the open
court on 08.11.2012 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 35A/07 DRI Vs Supaporn Patsak