Karnataka High Court
Marek Jaroslaw Lewandowicz vs Superintendent Of Customs on 16 December, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.508 OF 2014
CONNECTED WITH
CRIMINAL APPEAL No.308 OF 2014
IN CRL.A.No.508 OF 2014
BETWEEN:
Marek Jaroslaw Lewandowicz,
Son of Zygmnut Lewandowicz,
Aged about 45 years,
Residing at No.122,
Sangkat 3,
Mittapheap, Sihanouk Ville,
Cambodia.
(now in Judicial Custody,
Parappana Agrahara
Central Prison,
Bangalore). ...APPELLANT
(By Shri Chandrashekar R.P., Advocate)
2
AND:
Superintendent of Customs,
Air Intelligence Unit,
Bangalore.
(represented by learned
Special Public Prosecutor)
...RESPONDENT
(By Shri K.N.Mohan, Special Public Prosecutor for
Respondent)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellant praying to set aside the order dated 30.10.2013 and
sentence dated 5.11.2013 passed by the XXXIII Additional City
Civil and Sessions Judge and Special Judge (NDPS)
Bangalore, in Special Case No.137/2010 - convicting the
appellant/accused for the offences punishable under Sections
21(C) and 28 of N.D.P.S.Act and the appellant/accused is
sentenced to undergo R.I. for 10 years each and pay fine of
Rs.1,00,000/- each and in default to undergo S.I. for 1 year each
for the offences punishable under Sections 21(C) and 28 of
N.D.P.S.Act. Both the substantial sentences shall run
concurrently.
IN CRL.A.No.308 OF 2014
BETWEEN:
Johann Tuchler,
Son of Hens Tuchler,
Aged about 62 years,
3
Residing at Pekchan House,
Borang, near Pekchon University,
Pnom Pench,
Cambodia.
(now in Judicial Custody,
Parappana Agrahara
Central Prison,
Bangalore)
...APPELLANT
(By Shri Hashmath Pasha, Advocate)
AND:
Superintendent of Customs,
Air Intelligence Unit,
Bangalore
...RESPONDENT
(By Shri Jeevan J. Neeralagi, Special Public Prosecutor for
Respondent)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellant praying to set aside the order of conviction dated
30.10.2013/5.11.2013 passed by the XXXIII Additional City
Civil and Sessions Judge and Special Judge (NDPS)
Bangalore, in Special Case No.135/2010 - convicting the
appellant/accused for the offences punishable under Sections
21(C) and 28 of N.D.P.S.Act and the appellant/accused is
sentenced to undergo R.I. for 10 years each and pay fine of
Rs.1,00,000/- each and in default to pay fine, he shall undergo
S.I. for 1 year each for the offences punishable under Sections
4
21(C) and 28 of N.D.P.S.Act. Both the substantial sentences
shall run concurrently.
These appeals having been heard and reserved on
09.11.2016 and coming on for pronouncement of Judgment this
day, the Court delivered the following:-
JUDGMENT
These appeals arise out of the same judgment and are disposed of together. The appeal in Crl. A. 508/2014 is filed by accused Marek Jaroslaw Lewandowicz and the appeal in Crl. A. 308/2014 is filed by accused Johann Tuchler.
2. It is the case of the prosecution, that on 27.10.2009, an alert message was received by the Commissioner of Customs, Bangalore from the Deputy Director (I&I) Narcotics Control Bureau, Headquarters, New Delhi, vide letter F. No. VII/6/12/2009-Int, that three persons namely Lewandowicz (Polish) Passport No. AP 4179749, Tuchler (Austrian) Passport No. N 1053486 and Reubi Walter (Swiss) Passport No. F 5 3792939 were couriers traveling from New Delhi to Bangalore en route to the United Kingdom via Dubai and that they might be carrying 15 Kgs of contraband (Hashish) each. It was after receiving this alert message, that a team of Customs officers are said to have kept a watch on passengers traveling to the United Kingdom, at the Bangalore International Airport, Devanahalli, from 27.10.2009 onwards.
On 1.11.2009, the Superintendent of Customs, Air Intelligence Unit, Bangalore International Airport, Shri R. Ramamurthy, the Complainant, along with two independent witnesses and his team of officers is said to have intercepted three foreigners, after they had completed their immigration formalities and were proceeding for security check, before boarding an Emirates flight - EK 567, on the first floor of the Bangalore International Airport, at 16:00 hrs. He is said to have explained to them that he was a Superintendent of Customs attached to the Bangalore International Airport and based on information, he had reason to believe that they had certain 6 contraband with them and that he would like to examine the same as he was empowered to do so under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as "NDPS Act", for brevity) Therefore, he is said to have checked the passport of the first person and ascertained his name, Marek Jaroslaw Lewandowicz. At the request of the Complainant, Marek is said to have handed over his Passport bearing no. AP4179749 issued by the Republic of Poland. He is then said to have checked his air ticket ETKTNBR 1763806595645 and 1763806595646 to Newcastle (via Dubai) via Emirates Flight no. EK 567, Boarding pass bearing seat no. 29A (Bangalore to Dubai) and 36A (Dubai to Newcastle) and his checked in baggage identification tag bearing Nos. EK507134 and EK507135. The Complainant is said to have proposed to check the checked in baggage of Marek, to which he had no objection. Hence with the assistance of the ground handling staff, two green colored soft luggage trolley bags with bag identification tag bearing Nos. EK507134 7 and EK507135 were said to have been retrieved. Mr. Marek is said to have identified the bags as belonging to him.
The Complainant is then said to have checked the passport of the two others and followed the same routine in retrieving their luggage as well.
The accused along with the independent witnesses were then said to have been taken to the AIU office situated on the first floor of the Airport by the Complainant. The Complainant is then said to have informed the accused that he would like to search the person of the accused, to which the accused denied having any contraband. The Complainant is then said to have explained to the accused that under the provisions of Section 50 of the NDPS Act, they had the right to be searched before a Gazetted Officer or a Magistrate available in Bangalore City, to which the accused are said to have agreed to be searched before a Gazetted Officer available in the airport. Hence on a request of the Complainant, one Mr. T.V. Ravi, the then Deputy 8 Commissioner of Customs, Benagaluru International Airport (who was examined as PW2), a Gazetted officer on duty, is said to have come to the office of AIU to be a witness to the search and seizure proceedings. Thereafter, the Complainant is said to have begun to search the person of the accused, one after the other and did not find any incriminating material on the person of any of the accused. All that the Complainant is said to have found with Mr. Marek, is a wallet containing 130 dollars and with Mr. Tuchler, is a wallet containing 630 dollars and 165 pounds, which was allowed to be retained by them. Also, the Complainant did not find any contraband in the cabin baggage held by the accused.
The Complainant is then said to have begun a search of the checked in baggage belonging to Mr. Marek bearing tag nos. EK507134 and EK507135. Both were green coloured soft luggage trolley bags. He is said to have opened the first bag which contained pillows and clothes. Since the bag, even after 9 being emptied, was found to be heavier than usual, the Complainant is said to have expressed his desire to cut open the bottom of the bag to check for any hidden material. Thereafter, he is said to have broken the metal rods and cut open the inner lining which revealed a false bottom, uncovering a brownish- green packet of a gum like substance wrapped in transparent plastic sheet.
The second bag was also said to have been opened and it was found to contain a soft toy and some clothes. Upon breaking the metal rods and cutting open the inner lining, a similar brownish-green packet of a gum like substance wrapped in a transparent plastic sheet was said to have been found.
The Complainant is then said to have tested the substance using a Narcotic Drugs Detection Kit and the test is said to have resulted positive for Hashish. Then the bags were said to have been weighed using a weighing scale in the International Departure hall of the airport and the substance in the baggage with tag no. EK507134 is said to have weighed 8.29 Kgs and 10 the substance in baggage with tag no. EK507135 is said to have weighed 6.22 Kgs, totally weighing 14.51 Kgs. The Complainant is then said to have seized the material along with both the checked in baggage belonging to Marek under the provisions of NDPS Act. Thereafter, the Complainant is said to have drawn 3 samples weighing 25 grams each, of the substance suspected to be contraband, for further analysis and testing (the same was said to have been sent to the Central Revenues Control Laboratory for testing). The Passport, Identity card bearing no. AG 15685, the air tickets bearing nos. ETKTNBR 1763806595645 and 1763806595646 and Boarding pass bearing seat no. 29A (Bangalore to Dubai) and 36A (Dubai to Newcastle) of the accused were said to have been retained by the Complainant. The search and seizure of material belonging to accused Mr. Marek was completed and a Mahazar was said to have been drawn by Mr. Louis, Inspector of Customs as per the deposition of independent witnesses at 17:00 hrs on 1.11.2009.
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The Complainant is then said to have begun a search of the checked in baggage belonging to Mr. Johann Tuchler bearing tag no. EK503844. It was a green colored soft luggage trolley bag. Upon opening the said bag, it was said to have been found that it contained within itself another green colored soft luggage trolley bag. After breaking up of the metal rods and cutting open the inner lining, a brownish-green colored substance wrapped in a transparent plastic sheet, further wrapped in a brown colored plastic sheet was said to be found. Then the Complainant is said to have opened the second bag (without identification tag) and upon breaking the metal rods and cutting of the inner lining, a similar brownish-green packet of a gum like substance wrapped in a transparent plastic sheet is said to have been found. The Complainant is then said to have tested the substance using a Narcotic Drugs detection kit and the test is said to have resulted positive for Hashish. Then the bags were said to have been weighed using a weighing scale in 12 the International Departure hall of the airport and the substance in baggage with tag no. EK503844 weighed 8.34 Kgs and the substance in baggage without an identification tag weighed 6.17 Kgs, totally weighing 14.51 Kgs. The Complainant is then said to have seized the material along with both the checked in baggage belonging to Johann Tuchler under the provisions of NDPS Act. Thereafter, the Complainant is said to have drawn 3 samples weighing 25 grams each of the substance suspected to be contraband for further analysis and testing (the same was said to have been sent to the Central Revenues Control Laboratory for testing). The Passport, bearing no. N 1053486, the air ticket bearing no. ETKT 1763806502688 and Boarding pass bearing seat no. 26K (Bangalore to Dubai) and 26K (Dubai to Newcastle) of the accused were said to have been retained by the Complainant. The search and seizure of material belonging to accused Mr. Johann Tuchler was completed at 18:00 hrs and the Mahazar was drawn by Mr. Mahesh Kumar H.K., Inspector 13 of Customs as per the deposition of the independent witnesses at 19:00 hrs on 1.11.2009.
The Complainant is then said to have proceeded to arrest the accused Mr. Marek and Mr. Johann Tuchler on 2.11.2009 at 14:00 hrs and 14:25 hrs respectively, by issuing an arrest memo, for their involvement in the possession, transportation and attempt to smuggle or illegally export the contraband out of India.
In response to the oral summons said to have been issued to the accused on 1.11.2009 under the provisions of Section 67 of NDPS Act, both the accused are said to have appeared before the said Superintendent of Customs and are said to have made voluntary statements wherein they had allegedly admitted their mistake of transporting the contraband in their baggage for remuneration.
This alleged fact of the arrest and seizure of the contraband was said to have been reported to the then Assistant 14 Commissioner of Customs, Bangalore Customs Commissionerate, vide letter C.No. VIII/48/02/2009 CUS. AIU dated 2.11.2009, in compliance with Section 57 of the NDPS Act. They were then said to have been produced before the XXXIII Additional City Civil and Sessions Judge (Special court for NDPS Act, 1985 cases) Bangalore on 3.11.2009. The said Court vide order dated 3.11.2009, is said to have directed the Complainant to produce the accused before the jurisdictional magistrate. Therefore, the accused were said to have been produced before the Court of the Civil Judge (Jr. Dn.) and JMFC at Devanahalli. Thereafter, the Court is said to have remanded the accused to judicial custody on 3.11.2009 and they were said to have been handed over to the Central Prison, Bangalore on 3.11.2009.
The sealed packets containing the test report bearing F. No. 1/ND/R/2009-CLD-1000(N)-1001(N) dated 25.11.2009 and the remnant samples said to have been received from the Joint Director, Central Revenues Control Laboratory, New 15 Delhi, by the Complainant was said to have been handed over to the Court on 5.12.2009. The Court was said to have been requested to open the packets and retrieve the test report. The original test report is said to have stated that on the basis of chemical and chromatographic examinations conducted, the substance present in each sample was confirmed to be 'Charas'. The content of Tetrahydrocannabinol (THC) present in the samples marked namely, (a) EK 503844 was said to be 15.6%,
(b) OR No. 6/2009 was said to be 15.2%, (c) EK 503174 was said to be 15.1% and (d) EK 503844 was said to be 14.8%.
The statements of the concerned cashier of Hotel Shivalaya Delux, Mr. Ganapathi Manjunath Naik to acknowledge the presence of accused in Bangalore was said to have been recorded on 2.11.2009 by the Superintendent of Customs, HPU, Bangalore, under Section 108 of the Customs Act, 1962. He is also said to have handed over photo stat copies of the guest arrival register showing the stay of Mr. Marek and 16 Mr. Tuchler in Room Nos. 107 and 207 respectively, form C, advance receipts said to have been issued by both the accused and the final bill.
3. On the basis of the material placed before the Court, it was presumed that the accused persons were found in possession of 'Charas' and hence the burden to prove that they were innocent, was shifted on them. Both the accused were charged with offences punishable under Section 8(c) read with Sections 21, 23(c), 28 and 29 of the NDPS Act, for entering into a criminal conspiracy to possess, smuggle and illegally transport the narcotic drug out of India.
The presence of the accused persons was said to have been secured before the jurisdictional Court on 3.11.2009. The parties were heard before the framing of charges and the Court framed charges, to which the accused pleaded not guilty to any of those charges and claimed to be tried. The prosecution then 17 examined five witnesses PW-1 to PW-5 and got marked Exhibits P1 to P20 and produced Material Objects 1 to 9.
4. After hearing both the parties, the Court below had framed the following points for consideration:
"1. Whether the prosecution has proved beyond reasonable doubt that:
(a) On 1.11.2009 in between 11-00 a.m. and 4-00 p.m. at Bangalore International Airport accused were found in illegal possession of Hashish a narcotic drug for the purpose of transportation without any pass or permit and thereby committed the offence under Section 21(c) of NDPS Act?
(b) That on the said date, time and place accused attempted to export narcotic drug namely Hashish without any pass or permit to United Kingdom and thereby committed the offence under Section 23 read with Section 28 of NDPS Act?
(c) That on the said date, time and place the accused attempted to export narcotic drug with 18 the assistance of other accused and thereby abetted commission of the offence under NDPS Act and thereby committed the offence punishable under Section 29 of the NDPS Act?"
Point nos. 1(a) and (b) were answered in the affirmative and whereas point no. 1(c) was answered in the negative. Thereafter the accused were convicted and sentenced to undergo rigorous imprisonment for 10 years each, and to pay a fine of Rs.1,00,000/- each, and in default to undergo simple imprisonment for 1 year each for the offences punishable under Sections 21(c) and 28 of NDPS Act. Both the substantial sentences were ordered to run concurrently. It is against this order of the court below, the present appeals have been filed on various grounds.
5. The learned counsel for appellants, Shri. Hashmath Pasha, would contend that there is discrepancy in the alleged receipt of the alert message from the Deputy Director of I&I, NCB Headquarters, New Delhi, regarding the suspicion that the 19 accused were transporting contraband from India to the United Kingdom. The assertion by PW1, Shri. Bijoy Kumar Kar, Additional Commissioner of Customs (prev.), Bangalore, that the alert message was received by Mr. Bhattacharya, Commissioner of Customs, Bangalore on 27.10.2009 and the same was transferred to him, and that he then handed over the said alert message to Mr. Bellari, Preventive Officer, HPU, to forward the same to the AIR Intelligence officer, it is pointed out that both the above persons connected with the reception and onward transmission of the alleged alert message to the AIR Intelligence Unit have not been examined as witnesses by the prosecution. Therefore it is contended that the assertion by the prosecution as to the above sequence in furtherance of their case cannot be accepted.
It is pointed out that the Complainant - Superintendent of Customs, R. Ramamurthy (examined as PW.3) in the course of his evidence has stated that neither had he personally received the message nor had AIU received the information directly, 20 regarding the commission of the offence. His statement is that he received a photo copy of the alert message along with a copy of the passport of the accused from the Administrative Superintendent of AIU. As against this, the counsel for the respondent had reasserted that there was only one Administrative Superintendent of Customs, AIU, and that PW3 had indeed received a copy of the information from him. This Administrative Superintendent has not been examined as a witness by the prosecution. It is also alleged that there is no endorsement made by him on the alleged copy of the information transferred to the Complainant. In addressing the aspect as to how the Complainant received this information, attention is drawn to the reasoning of the trial court, which is as follows:
"24. This witness has been thoroughly cross- examined by learned counsel appearing for accused. It is elicited that HPU has not received any information regarding the commission of offence. It is further elicited that AIU has not received information directly 21 regarding the commission of offence. He further says that he has not received any information personally in this case. He received fax message Ex. P1 on 1.11.2009 from Administrative Superintendent, AIU."
It is hence contended that the trial court has failed to notice that the Complainant was unable to prove as to how he had received the alleged alert message. Hence the trial court has gravely erred in accepting his evidence on the point that he has indeed received the alert message pertaining to the said offence by the accused.
Further more, it is contended that the alleged alert message produced on record before this court and marked Ex. P1 is a photo copy of an original alert message if at all received by Mr. Bhattacharya, Commissioner of Customs, Bangalore from Deputy Director (I&I), NCB Headquarters, New Delhi and hence should at best be considered as a secondary evidence. The counsel for the appellants however, would question the validity of the said alert message to be considered even as 22 secondary evidence. Reliance is placed on the case of Smt J. Yashoda v. Smt K. Shobha Rani, AIR 2007 SC 1721, wherein it has been laid down that when certain documents in question were admittedly photo copies and when there was no possibility of the said documents being compared with the original, as the same were with another person, the conditions in Section 65(a) of the Indian Evidence Act, 1872 had not been satisfied and hence the documents could not be accepted as secondary evidence."
It is hence contended that in the absence of the original fax message vide letter F. No. VII/6/12/2009-Int, the photo stat copy of the same cannot be considered to be secondary evidence in the present case on hand. The counsel for respondent has failed to give any reasonable grounds for non- submission of the original fax alert message. Therefore, when the original copy of the alert message is not submitted and when the purported photo copy of the said alert message is not 23 compared with the original, the same cannot be accepted as secondary evidence.
It is next contended that in terms of Section 57 of the Code of Criminal Procedure (Hereinafter referred to as "CrPC"), there is a safeguard provided to a person arrested without a warrant, namely as follows:
"No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."
It is contended that in the present case on hand, the arrest of the accused Marek and Tuchler was effected by issuing them an arrest memo by Mr. S.J. Louis, Inspector of Customs and Mr. Mahesh Kumar H.K., Inspector of Customs respectively on 2.11.2009. Thereafter they were presented before the 24 jurisdictional Magistrate on 3.11.2009, which is well within the time frame provided under the law. But inexplicably, the Mahazar, is dated 1.11.2009. This fact has been accepted by both PW2 and PW3. The counsel for the appellants raises a fundamental question as to why there was a delay of about 22 hours in arresting the accused after the Mahazar proceedings were completed, which gives room for suspicion that the Mahazar might be a concocted document, created by the Officers who conducted the search and seizure. No acceptable reasons are provided by the Official witnesses and no credible document is placed on record by the counsel for respondent State to explain the circumstance of the time gap between filing of the Mahazar and issuing the arrest memo to the accused.
6. It is further contended that the deposition given by Mr. T.V. Ravi, Deputy Commissioner of Customs, Bangalore (Prev.) as PW2 cannot be relied on. It is a fact which is also accepted by Mr. T.V. Ravi himself in his evidence, namely, that 25 he has not signed on any other document or material apart from the seizure report or the Mahazar. But the independent witnesses have deposed in the Mahazar that T.V. Ravi has also affixed his signature on the materials seized. The Complainant in his evidence as PW3, has also stated that Mr. T.V. Ravi has affixed his signature on the packets of materials seized. It is contended that there are inconsistencies in the statements of the witnesses and the Officer who was allegedly present while the search and seizure was being conducted and the inference would be that Mr. T.V. Ravi was not a witness to the proceedings of search and seizure conducted by the Complainant.
It is also admitted by Mr. T.V. Ravi that the screening and scanning of the seized checked in baggage belonging to the accused in the present case had been completed by the concerned personnel and nothing was informed to them about the presence of incriminating material in those bags. 26
7. It is contended that the evidence of Haribabu, Superintendent of Customs, HPU as PW4 is unreliable. He has stated that, as per instructions of the Additional Commissioner of Customs, he visited Hotel Shivalaya Delux situated on Cottonpet Main road. That he had recorded the statement of one Mr. Ganapathi Manjunath Naik, cashier at the said hotel by issuing oral summons under Section 108 of the Customs Act, 1962. Thereafter he had also produced the Photostat copies of Form C, payment receipts, and the Hotel register extract. These are marked as Ex. P15 to Ex. P18. It is a fact that Ex. P17 i.e. the hotel register extract does not contain the name of the hotel and it does not contain the signature of the hotel authorities either. Moreover, these documents being mere Photostat copies and having not been compared with the originals, they cannot be admitted as Secondary evidence under Section 65(a) of the Indian Evidence Act, 1872. Further, the said Ganapati Manjunath Naik had not been examined as a witness to corroborate the evidence given by PW4.
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Further, it is pointed out that Haribabu had not procured the Certificate of Registration issued by FRRO to confirm that the accused visited Bangalore on the date of offence.
8. The learned Counsel Shri Hashmath Pasha would contend that the evidence adduced by PW5 - Mr. Raj Pal Singh, Chemical Examiner Grade I, CRCL, New Delhi, is unreliable on various grounds and that reliance ought not to be placed on the test report issued by him. The learned counsel contends that Ex. P20 which is a test report does not specify as to which chemical and chromatographic examinations were conducted to identify the nature of the sample substance and also as to who had conducted such examination. The prosecution had also not produced the original test memo. This witness had accepted that the report submitted is not conclusive as regards the non-conducting of UV Spectrometric test, IR Spectrometric test, Micro-Crystalling test, HPLC test and Mass GCMS test as recommended by the United Nations Manual. 28 And as accepted by the witness himself, when the tests conducted are not conclusive, the court cannot assume that the alleged substance seized is Hashish. Moreover, the alleged examinations have been conducted by one Maurya, who has not been examined as a witness in the present case.
9. In so far as the point as to whether the accused were in conscious possession of the contraband as contemplated under Section 35 of NDPS Act, the learned counsel for appellants contend that the accused were not in possession of the same.
However, on considering the evidence placed on record regarding the seizure of contraband and the presence of panch witnesses, suspicion arises as to the genuineness of the said seizure. The prosecution had alleged that they had recovered M.Os. 9 and 10 i.e., the checked in baggage of the accused, from the pallet area with the assistance of the ground handling staff. The said bags were said to have been opened and checked 29 in the presence of the panch witnesses only after the accused consented to it. It is to be noticed that the search and seizure was conducted at the AIU office in the first floor of the airport whereas the accused were apprehended in the International Departure Hall. PW2 - Mr. T.V. Ravi is the Gazetted Officer who was allegedly present during the investigation. Though he has signed on the Mahazar, his signature is not to be found on any seized materials. This fact is in contrast to the witness statements made by PW3 and also the panch witnesses as deposed in the Mahazar. The non-examination of the independent witnesses, especially the large number of ground handling staff who would have been involved in retrieving the checked in baggage of the accused, casts a doubt as to the seizure of the contraband from the possession of the accused. The Complainant - PW.3 in his evidence has accepted the fact that nothing incriminating was found on the person of any of the accused. When the prosecution has failed to prove beyond reasonable doubt as to the presence of Hashish in the 30 possession of the accused, this Court cannot presume the conscious possession of the contraband on the part of accused.
10. The counsel for the appellants have time and again raised the contention regarding the non-examination of the independent witnesses by the prosecution. They have relied on the case of Ritesh Chakravarti v. State of M.P., (2007) 1 SCC (Cri) 744, wherein the Supreme Court has held that offences under the NDPS Act being grave ones, the procedural safeguards provided to the accused must be strictly complied with. The Court has gone on to hold that the search allegedly having taken in a busy place, the fact that none of the persons who were witnesses to the said search and seizure were examined, neither their addresses nor names taken, would lead the Court to draw an adverse inference on the ground of non- examination of material witnesses. A similar situation has arisen in the present case on hand, wherein the two witnesses, Shameer and Avinash, who allegedly witnessed the search and 31 seizure of the accused and helped in drawing up the Mahazar, were not examined by the prosecution.
11. On the other hand, the counsel for the respondent - State while seeking to justify the judgment of the trial court would point out that the voluntary statement of the accused under Section 67 of NDPS at Ex. P13 lends credence to the prosecution case. Attention is drawn to Section 67 of the Act, which reads as follows:
"67. Power to call for information, etc. - Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act, -
(a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) Require any person to produce or deliver any document or thing useful or relevant to the enquiry;32
(c) Examine any person acquainted with the facts and circumstances of the case."
It is contended that the above provision empowers an officer mentioned in Section 42 of NDPS Act to record the statement of any person who is acquainted with the facts and circumstances of the case. In support of his argument, the learned counsel for respondent has relied upon the decisions in the following cases:
(a) M. Prabhulal v. Assistant Director, DRI, AIR 2003 SCW 4975;
(b) Kanhaiyalal v. Union of India, AIR 2008 SC 1044;
(c) A.K. Mehaboob v. Intelligence Officer, NCB, 2002 SCC (Cri.) 1035;
(d) The Intelligence Officer, Bangalore and Ors. v. Arshad Saleem Khan and Ors., ILR 2004 KAR 3855;
(e) Devendar Pal Singh v. State of N.C.T. of Delhi and Anr., AIR 2002 SC 1661;33
(f) Ravinder Singh @ Bittu v. State of Maharashtra, AIR 2002 SC 2242.
The learned counsel for respondent contends that unlike statements made under Section 161 of CrPC, the ones made under Section 67 of the NDPS Act can be acted upon to convict the accused. It is pointed out that the above decisions consistently lay down that the voluntary statement of the accused signed by the accused and to be found voluntary, is admissible in evidence and could be used against them and also the co-accused.
The counsel for respondent contends that in so far as the Certificate of Registration issued by FRRO to confirm that the accused were in Bangalore, nor being produced, it is contended that Haribabu, has obtained the above said photostat copies from Ganapathi Manjunath Naik only after thoroughly examining the original extracts of the same and that there is no necessity in procuring the Certificate of Registration issued by 34 FRRO when the accused themselves have agreed to have been staying in Bangalore from 27.10.2009 to 1.11.2009 at Hotel Shivalaya Delux.
The counsel for respondent contends that in so far as the tests conducted on the incriminating material being inconclusive, it is asserted that there is no necessity to conduct the tests prescribed by the United Nations Manual, to determine the nature of the substance present in the sample.
As regards the non-examination of the independent panch witnesses, the counsel for respondent submits that they had taken reasonable steps in tracking the said independent panch witnesses but to no avail. This reasoning provided by the prosecution for non-examination of the panch witnesses cannot be taken into consideration. The non-examination of the said material witnesses casts a serious doubt on the case of the prosecution.
Furthermore, the Counsel for respondent has relied on Asst. Director, DRI v. Syed Rehamat Pasha, ILR 2008 KAR 35 1909, wherein this Court had held that the "Mere fact that a panch witness did not support the prosecution case would not make the prosecution case any less acceptable if otherwise the Court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made."
Reliance is also placed on M. Prabhulal v. Asst. Director, DRI, AIR 2003 SCW 4975, wherein the Supreme Court has held that the non-examination of independent witnesses would be inconsequential when confessional statements of accused were found to be voluntary. And that in such an event recoveries made cannot be doubted for want of non-examination of independent witnesses.
12. On the contrary, the learned counsel for the appellants contends that the accused have never made a voluntary statement before the Investigating Officer and that their signatures were taken by force and coercion. That the said 36 voluntary statements have been retracted by the accused on 31.7.2010 and hence no reliance should be placed on the same. Further the accused in their statement recorded under Section 313 of CrPC, have stated that they never made any voluntary statement before the Investigation Officer and the same have been concocted. When there are severe inconsistencies in the statements made by the witnesses, materials placed on record and the manner in which the search and seizure was conducted, the Court cannot convict the accused solely on the basis of their voluntary statements.
13. This Court, in the light of the above contentions and on an examination of the record, is of the view that the statements of PW3 - Superintendent of Customs, AIU, Bangalore, are unreliable and suspicious. PW3 has deposed that he has not personally received the alert message. He also states that neither the AIU nor the BPU received any information regarding the commission of offence. He states that he received 37 a photo copy of the information from the Administrative Superintendent of AIU on 1.11.2009, upon which a team of Customs officers kept a watch on the passengers traveling to United Kingdom, from Bangalore International Airport. But he himself has stated in the Complaint filed before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) Bangalore, that a team of Customs officers kept a watch from 27.10.2009 onwards itself. His further statement is that he had received this information from the Administrative Superintendent of AIU, but the said person has not been examined as a witness to corroborate his statements. Moreover, Ex.P1, which is the alleged alert message, is not the original but a photo copy.
Furthermore, he himself has admitted that it was he who requested the Deputy Commissioner of Customs, Bangalore Mr. T.V. Ravi, to be a witness to the search and seizure to be conducted under Section 50 of NDPS Act, as T.V. Ravi was a Gazetted Officer. He had stated that Mr. T.V. Ravi was present 38 throughout the search and seizure till the Mahazar was drawn concluding the seizure proceedings and had affixed his signature on all documents and materials seized, including the Mahazar. But it is a fact that Mr. T.V. Ravi had affixed his signature only on the Mahazar and nowhere else, which gives room for suspicion as to the genuine nature of the search and seizure proceedings. The trial court has also found this as a fact:
"34. Though this witness PW3 has been thoroughly cross-examined, nothing much has been elicited so as to disbelieve his evidence. Of course certain answers are elicited, which may lead to inference that the mahazar is concocted."
But the trial court justified this on the reasoning that there is no animosity between PW3 and the accused and therefore any discrepancies appearing in his cross-examination cannot make his evidence uncreditworthy.
Thereafter, he has failed to provide sufficient reasons as to how he was able to track the accused from a reasonably large 39 crowd usually present at the Airport. To this he had replied that information regarding every passenger, either arriving or departing from the Airport, was updated in the passenger manifest, which is submitted to the Customs department every day in the airport. But the prosecution has failed to produce that particular passenger manifest so as to prove the fact that the Complainant actually referred to the said manifest in identifying the accused.
The complainant has also accepted in his deposition that he did not find anything incriminating on the person of any of the accused when he conducted a search under Section 50 of NDPS Act. The only thing that he is said to have found was their wallets which contained some foreign currency. He also admits that he did not find any keys with the accused at the time of the search. But he had stated that the accused had themselves opened the bags, using some keys. The counsel for the respondent has failed in proving as to where the accused got 40 these keys to open their baggage, when nothing was found on their persons.
14. At the outset, though it seems that the Investigating Officer has complied with the procedure laid down under the mandatory provisions of Section 42 and Section 50 (by giving oral notice as alleged by the counsel for respondent) in conducting of the said search and seizure of the contraband from the bags of the accused, it is not proved by the prosecution beyond all reasonable doubt that the search and seizure was in fact conducted as per the mandate of the law.
The accused were apprehended by the Investigating Officer in the International Departure Hall based on the alert message he received on 1.11.2009. It is unclear as to how he tracked the accused in the airport. Though they were apprehended in the International Departure Hall, they were taken to the AIU office on the first floor of the Airport for conducting the search and seizure. The proceedings though 41 happened in the presence of independent witnesses, their statements are not recorded to corroborate the evidence produced by the prosecution.
Therefore, placing reliance on Ritesh Chakravarti v. State of M.P., (2007) 1 SCC (Cri) 744, this Court is of the conclusion that the Bangalore International Airport being a busy place, the failure of the prosecution in taking down the contact details or address of the independent witnesses has committed a grave error in not complying with the mandatory provisions providing strict safeguards to the accused as the act alleged to have been committed amount to grave offences. This in turn leads this Court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872.
The prosecution has failed to produce the originals of the alert message (Ex. P1), the hotel register extract (Ex. P17), the original test memo etc. Absence of signature of PW2 - Mr. T.V. Ravi, the Gazetted Officer who witnessed the search and seizure, on M.Os. 1 to 5 questions the presence of the witness 42 during the procedure itself. All that the prosecution could cull out of this investigation is the voluntary statement given by the accused under Section 67 of NDPS Act. Even this statement was retracted by the accused later on. The prosecution has also failed to prove beyond reasonable doubt as to the presence of conspiracy between the accused in possessing and transporting the contraband out of India. Moreover, the prosecution has failed to provide any reasonable explanation as to why there was a delay of almost 22 hrs in arresting the accused (on 2.11.2009) when the Mahazar proceedings were completed on 1.11.2009 at 18:00 hrs. Therefore, in light of the above observations, the reasoning of the trial court in coming to the conclusion that the accused were found in possession of the contraband and that they were trying to transport the same out of India without any legal permit and thereby convicting them under Sections 21(c) and 28 of the NDPS Act is found to be erroneous.
43
As the material seized during the proceedings forms the basis of the investigation, the inability of the prosecution to prove the case, especially the genuineness of the search and seizure proceedings, beyond all reasonable doubt, vitiates the case of the prosecution.
Consequently, the appeals are allowed. The judgment of the trial court is set aside. The accused are acquitted. They shall be set at liberty forthwith.
The operative portion of this judgment be communicated to the Jail authorities for immediate compliance.
Sd/-
JUDGE Nv/skg*