Delhi High Court
Strino Juen Antanio vs Customs on 12 November, 1999
Equivalent citations: 2000IAD(DELHI)622, 82(1999)DLT717, 2000(52)DRJ74
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. This appeal is directed against the judgment and order of sentence dated 4.4.1996 passed by the Additional Sessions Judge, Delhi in S.C. No. 31/95 convicting the appellant under Sections 21/28 read with Section 23 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac or in default to suffer further rigorous imprisonment for one year.
2. The appellant, a Spanish national, was intercepted at the I.G.I. Airport, New Delhi by the Assistant Customs Officer R.C. Kundara, while he was leaving for Amsterdam by KLM flight No. K.L. 872. The search of his personal luggage resulted in recovery of 250 grams of heroin. After completing the procedural formalities, a sample was sent for Chemical analysis. The sample which was sent for Chemical analysis was found to be diacetyl morphine (heroin) commonly known as brown sugar.
3. The prosecution mainly relied on the evidence of ACO Shri R. C. Kundara (PW-1) and Air Customs Superintendent Shri Syed Yaseen (PW-2) besides the confessional statement (Ex. PW-2/A) of the appellant. The learned Additional Sessions Judge, on appreciation of evidence on record, accepted the prosecution case and convicted and sentenced the appellant as indicated above.
4. Learned counsel for the appellant contended that in the instant case the mandatory requirement of Section 50 of the Act was not complied with and therefore the evidence regarding recovery and seizure of the contraband should be regarded as illegal. This contention deserves to be rejected because only when a person of an accused is to be searched then he is required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate. The learned Additional Sessions Judge has rightly held that search of a baggage of a person is not the same thing as search of the person himself. In this case the heroin was recovered from the suitcase belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate as required by Section 50 of the Act (State of Punjab Vs. Baldev Singh, 1999 (6) AD (S.C.) 397 = [J. T. 1999 (4) SC 595].
5. It was next contended that identity of the articles seized from the appellant and the sample examined by the Chemical Examiner Shri R. S. Malhotra (PW-3) has not been established by the prosecution. It has come in the evidence of A.C.O. Shri R. C. Kundara (PW-1) that on 17.7.1995 at about 12.05 midnight, the appellant reported at the customs counter for catching KLM flight No. KL-872 and on an enquiry he declared that he was not carrying any contraband substance. The appellant was given an option being searched in the presence of a Gazetted Officer or Magistrate but he declined the offer in his own handwriting (Ex. PW-1/A). Thereafter, the appellant produced his checked in luggage for search. The appellant identified his suitcase which was found booked. Baggage tag fixed on it tallied with the claim tag affixed on his air ticket. The appellant opened the suitcase and on search two packets containing heroin was recovered from it in the presence of panch witnesses, namely, Bhuwan Chand Tiwari and Sohan Lal vide seizure memo (Ex. PW-1/8). The test revealed that the powder recovered from the said suitcase was heroin. The total quantity thus found from the possession of the appellant was 250 grams of heroin. Two samples each of 5 grams from the two packets were drawn. The samples as well as the remaining heroin were converted into separate parcels and they were duly sealed on the spot. The seized articles along with the test memos prepared on the spot were deposited in the Custom Godown.
6. Air Customs Officer Deepak Paytal (PW- 4) testified that on 20.7.1995, he took the samples of heroin from the Customs Super intendent Shri S. Yaseen (PW-2) and deposited them with the office of CRCL on 21.7.1995. Assistant Chemical Examiner R. S. Malhotra (PW-3) deposed that on 21.7.1995, the samples were received in the laboratory with their seals intact and on 23.8.95, the samples were Chemically examined by him and Mr. P. K. Bhatnagar and were found to be diacetyl morphine (Heroin) vide report (Ex. PW-3/A). It is significant to mention that the testimony of Mr. R. S. Malhotra (PW-3) has been left unchallenged by the appellant. As noticed earlier, the evidence of Deepak Paytal (PW-4) shows that the seals on the samples remained intact till it reached the office of the CRCL. On this point, his testimony has also been left unchallenged by the appellant. That apart, Air Customs Superintendent, S. Yaseen (PW-2) testified that the appellant had also voluntarily made a written confession (Ex- PW-2/A) before his admitting his guilt. Learned counsel for the appellant has invited my attention to some discrepancies in the test memo (Ex. PW-4/A) regarding dates of drawing and despatch of samples to the officer of the CRCL and also to some irregularities committed in following the procedure with respect to safe custody of the heroin seized from the appellant. It is significant to mention that in his examination under Section 313 Cr. P. C., the appellant had stated that the statement (Ex. PW-2/A) was obtained by force and that he was beaten up by the officers of the Customs Department. The said statement (Ex. PW-2/A) was made on 17.7.1995. The appellant retracted it on 26.3.1996. Till then, he had not complained against any Officer as regards the alleged beating or use of force in obtaining the said statement. In short, there is nothing on record to substantiate the said allegations of the appellant. Thus, in my opinion, the learned Additional Sessions Judge has rightly concluded that the appellant had voluntarily made the confession (Ex.PW-2/A) before Shri S. Yaseen (PW-2). That being so, the appellant had himself admitted in his statement (Ex. PW-2/A) that on the night in question 250 grams of heroin was seized from his possession. In this context, I may usefully excerpt the following observations of their Lordships of the Supreme Court in Kalema Tumba Vs. State of Maharashtra and Another, :-
"5. It was next contended that the report which was given by the Chemical Analyser was a cryptic report and, therefore, no reliance could have been placed upon it. It was submitted that as it contained no details of the test, it had no evidentiary value. As rightly pointed out by the High Court the appellant had himself admitted in his statement under Section 108 of the Customs Act that it was heroin. Moreover, in this case we have evidence of the Officers of the Narcotic Control Bureau also who had tested the substance found from the appellant. Therefore, this contention is also rejected.
6. It was then urged that no reliance should have been placed upon the statement recorded under Section 108 of the Customs Act as it was not made by the appellant voluntarily and he did not know what was written in it when he had signed it. The submission was that the appellant does not know English language. He knows only French language. In his examination under Section 313 Cr. P.C., he had stated that the statement was obtained by force and that he was beaten by the Officers of Narcotic Control Bureau. He had not stated at that time that he did not know English, Apart from the evidence of the Officers of the Narcotics Department there is evidence of an employee of the Jewel Hotel where the appellant had stayed from 16th November, 1990, who was proved some of the entries made in English by the appellant himself in the register maintained by the hotel. The panchnama, also contains words 'received copy' written by the appellant. The said statement of the appellant was recorded in 1990. He retracted it in 1994. Till then he had not complained against any officer as regards the alleged beating or use of force nor he had stated that he did not know English. Therefore, this contention also cannot be accepted."
For the foregoing reason, I am of the opinion that the learned Additional Sessions Judge has rightly relied upon the evidence of aforesaid witnesses and the statement (Ex. PW-2/A) of the appellant in convicting the appellant. The appellant's conviction and sentence, therefore, will have to be confirmed.
7. In the result, the appeal is dismissed and the appellant's conviction and sentence are confirmed.