Delhi District Court
Sc No. 3902017 Custom vs . Mohd. Sadakat Page No. 1/61 on 3 June, 2019
IN THE COURT OF AJAY GOEL, ADDL. SESSIONS
JUDGE-SPECIAL JUDGE (NDPS), DWARKA COURTS,
NEW DELHI.
Sessions Case No. 390-2017
U/s: 21(c)/23(c)/28/29 NDPS Act
Department of Customs
Through Sh. Ashish Singhal,
Air Customs Officer,
IGI Airport, New Delhi. ..... Complainant
VERSUS
1. Mohd. Sadakat,
S/o Ali Mohammad
R/o VPO Baghonwali, PS-New Mandi,
District-Muzaffarnagar, U. P.
2. Mohd. Gulzar
S/o Sh. Haneef,
R/o Village Gunarsi,
PO Gunarsa, PS-Deoband,
Saharanpur, U. P. ..... Accused
Date of Filing of complaint : 24.06.2017
Date of Assignment to this court : 05.07.2017
Date of Final Arguments : 30.05.2019
Date of Judgment : 03.06.2019
JUDGMENT:
CASE OF PROSECUTION:
1. The case of the Customs is that on 27.12.2016 SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 1/61 accused Mohd. Sadakat alongwith co-accused Mohd.
Gulzar were intending to depart from Delhi to Dammam by Gulf Air flight No. GF 135 dated 27.12.2016. It is the case of customs that Sh. Jai Makhija, Authorised representative of Gulf Air, vide letter dated 28.12.2016 informed to Sh. Dharmeder, Air Custom Officer that accused persons were carrying cough syrup in commercial quantity and therefore, both accused persons were offloaded by Gulf Air and were handed over to the Customs.
2. Thereafter, accused persons were asked by the Sh. Dharmender ACO that whether they were carrying any foreign currency, Indian currency or any Narcotic drugs to which the accused persons replied in negative. It is stated that as per your Boarding Passes, the accused persons had two checked-in- baggage each bearing tag nos. GF480078 & GF480079 and Tag No. GF480150 & GF480143 SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 2/61 respectively.
3. Thereafter, accused persons were brought into Customs Preventive Room located at the Customs Arrival Hall for search and examination of their baggages and also for search of their person by Sh. Dharmender. It is stated that two Panch witnesses were also called to witness the search proceedings, to which the witnesses readily and willingly agreed. Thereafter, in the presence of witnesses, the Sh. Dharmender, ACO again asked both the accused persons, whether they were carrying any foreign currency, Indian currency or any Narcotic drugs or contraband goods, to which they again replied negative.
4. It is stated that since both accused informed that they could neither read nor write in Hindi or English but they were only able to put their signature in Hindi, therefore, on their request, an independent SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 3/61 interpreter Sh. Taranjeet Singh was arranged by the ACO.
5. Thereafter, both the accused persons were served upon a notices by Sh. Dharmender, ACO under the provisions of Section 50 of the NDPS Act, 1985 and section 102 of the Customs Act, 1962 separately and both the accused persons were apprised about their legal right in vernacular through said Sh. Taranjeet, Interpretor that their search could be conducted before Magistrate or Gazetted Officer of Customs. The meaning of Magistrate or Gazetted Officer of Customs was also explained to them by Sh. Dharmender, ACO. It is stated that in both the notices, accused persons gave their written consent on the body of the notices itself that their personal and baggage search could be conducted before any customs Officer.
6. It is stated that before taking the personal SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 4/61 search and baggage search of accused persons, they both were offered search by Sh. Dharmender, ACO, to which they both had politely declined
7. During personal search of accused Mohd.
Sadakat, his Indian Passport No. G9547464 issued at Ghaziabad on 15.07.2008, Currency INR 6,000/-, Riyal 250, Boarding Pass of flight no. GF 135 dated 27.12.2016 were recovered.
8. During personal search of accused Mohd.
Gulzar, Indian Passport No. K7313433 issued at Ghaziabad on 29.08.2012, Currency INR 8500/- and Riyal 46/-, One old and used mobile phone of Sony brand having mobile No. 8864871692, Boarding Passes of flight no. GF 135 dated 27.12.2016 were recovered.
9. It is stated that on examination of Checked-in-
baggages of accused persons having tag Nos. GF480078, GF480079, GF480150 and GF480143, the SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 5/61 baggages were found containing Old and used personal effects and 100 bottles of "Chlorpheniramine Maleate & Codeine Phosphate Cough Linctus" PHENSEDYL COUGH LINCTUS 100ML". Each 5 ml (one teaspoonful) contained Chlorpheniramine Maleate I.P. 4 mg, Codeine Phosphate I.P. 10 mg. packed in four transparent plastic packing of 25 bottles, further two transparent plastic packing of 50 bottles each thus total 200 bottles were found of batch PHB NO.6409 and PHB 6410.
10. It is the case of customs that on demand Sh.
Dharmender, ACO, both the accused persons failed to produce any documents of licit possession such a bill or invoice of recovered total 200 bottles of "Chlorpheniramine Maleate & Codeine Phosphate Cough Linctus" PHENSEDYL COUGH LINCTUS 100ML"
and therefore, same were seized under the provisions SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 6/61 of NDPS, Act, 1985. It is stated that Sh. Dharmender, ACO took Plier seal 'PB' from In-charge seal shift 'B' and returned to him on the same day. Sh. Dharmender, ACO then drew Panchnama incorporating details of seizure on the spot and same was read over and explained to accused persons in vernacular by the Sh. Taranjeet. Thereafter, accused persons were produced before Sh. Jitender Singh, Superintendent where statements under section 67 of NDPS, Act of both accused persons were recorded and same were read over to them by Sh. Jitender Singh, Superintendent.
11. Thereafter, both accused persons were arrested by the Sh. Dharmender, ACO vide arrest memos and vide letter issued by Sh. Jitender Singh, Superintendent addressed to M. S., RML Hospital, both accused persons were medically examined and produced before the court. Sh. Dharmender, ACO SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 7/61 after sealing case property had deposited the same with In-charge Godown by making entries in Godown register at relevant pages. Thereafter, IO submitted the report of seizure and arrest to his immediate superior Sh. Jitender Singh, Superintendent, who further submitted the same to next superior Sh. Govind Kumar Garg, Joint Commissioner.
12. Thereafter, IO Sh. Dharmender moved an application under section 52-A of the NDPS Act, 1985 before Ld. ACMM New Delhi for inventorisation, photography, and certification of case property. Sh. Jitender Singh wrote letter for production of case property before the court of Ld. M.M. Thereafter, on 12.01.2017, case property i.e. four Zipper stroller Bags were produced before Ld. M.M, New Delhi, where Panchnama was certified, photographs of case property were taken and one CD of Photographs was prepared. Thereafter, on opening four Zipper stroller SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 8/61 Bags each were found containing 50 bottles "Chlorpheniramine Maleate & Codeine Phosphate Cough Linctus" PHENSEDYL COUGH LINCTUS 100 ML"
from where samples S1, S2, S3, S4, S5, S6, S7 and S8 i.e one bottle of 100 ml each were drawn from each Batch and samples marked S1, S3, S5 and S7 were sealed with court seal PS for chemical analysis and samples marked S2, S4, S6 and S8 were kept for record. It is stated that case property were resealed with court seal 'PS' over a paper slips and handed over to In-charge Godown in the court Ld. M.M.
13. Thereafter, the samples S1, S3, S5 and S7 were taken under letter of authorisation from Godown by making entry in godown register and deposited the same with chemical examiner against receipt Mark 'Y'. It is stated that during investigation, statement of accused persons were recorded in Jail premises with permission of the court. It is also stated that test SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 9/61 report alongwith remnant samples was received in office of Assistant Commissioner and as per report the samples under reference answered positive of presence of Codeine Phosphate with density 1.22 gm/ml.
14. After completion of the investigation, present complaint was filed along with documents. CHARGE:
15. After hearing the arguments, vide order dated 21.08.2017, charges U/s 21 (c), 23 (c), 28 and 29 NDPS Act were framed against both the accused persons by this Court to which they pleaded not guilty and claimed trial.
Prosecution Evidence:
16. In support of its case, prosecution had examined following witnesses:
PW-1 is Sh. Samresh Sehwag. He is an official SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 10/61 of DIAL and was posted at Level - 2 for screening of baggage and he observed some suspicious liquid in four baggages. He rejected them and referred to Level-4. He proved the summons issued to him as Ex. PW-1/A and his statement as Ex. PW- 1/B. PW-2 is Sh. Sonu Sharma. He is also an official of DIAL. He has deposed on the lines of PW-1 regarding observing of some suspicious liquid in four bags in question. Thereafter, he informed his senior and Airline staff and those baggages were physically examined and 200 bottles of phensedyl cough syrup were recovered. He proved the summons issued to him as Ex. PW-2/A, his statement as Ex. PW-2/B, duty allocation sheet as Ex. PW-2/C, SOP consisting of 2 pages as Ex. PW- 2/D, log book Ex. PW-2/E and paper slips as Ex. PW-2/F to and PW-2/J. SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 11/61 PW-3 is Sh. Ashish Singhal, Superintendent Customs. He deposed that present case was transferred to him from Sh. Dharmender Kumar and during investigation, he got the statement of witnesses recorded through Sh. S. S. Singh Superintendent customs. The statement of accused persons recorded in jail were proved as Ex. PW-3/A and PW-3/B and the present complaint was Ex. PW-3/C. PW-4 is Sh. Jitendra Kumar, Assistant Commissioner. He deposed that he was authorised by letter mark X to carry the samples to CRCL. He proved the copy of relevant entry made in register of godown as Ex. PW-4/A PW-5 is Sh. Rajesh. He deposed that in the year 2016, he was posted at IGI Airport as Loader and Sh. Dharmender Singh, Custom Office had called him at Custom Preventive Room to witness the SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 12/61 search proceedings and there were two persons having two bags with them. He stated that officer served upon them notices U/s 102 of Customs Act and U/s 50 of NDPS Act which were proved as Ex. PW-5/A to PW-5/D, the panchnama was Ex. PW-5/E, the boarding passes were Ex. PW-5/F to PW-5/N and Passenger Manifest was Ex. PW-5/O. PW-6 is Sh. Ravinder Kumar. He is one of the panch witnesses in this case. However, he failed to identify the accused persons even after seeing the persons sitting in court as well as outside the court.
PW-7 is Sh. Jitender Singh, Superintendent. He proved the statement of accused persons recorded U/s 67 of NDPS Act as Ex. PW-7/A and PW-7/B, the letter written to MS, RML Hospital for medical examination of accused persons as Ex. PW-7/C and PW-7/D, the detention receipts as Ex. SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 13/61 PW-7/E and PW-7/J, the reports U/s 57 of NDPS Act as Ex. PW-7/K and PW-7/L, letter dated 11.01.2017 written to Assistant Commissioner, Disposal Warehouse as Ex. PW-7/M, letter dated 16.01.2017 written to Chemical Examiner, CRCL as Ex. PW-7/N, letter dated 20.01.2017 written to Chemical Examiner, CRCL as Ex. PW-7/O and letter dated 31.01.2017, written to Chemical Examiner, CRCL as Ex. PW-7/P. PW-8 is Sh. Shiv Shankar Singh, Superintendent Customs. He proved the summons to witness Sh. Jai Makhija as Ex. PW-8/A, his statement recorded U/s 67 of NDPS Act as Ex.
PW-8/B, summons issued to witness Sh. Samad as Ex. PW-8/C, his statement recorded U/s 67 of NDPS Act as Ex. PW-8/D and the photocopy of Voter ID- card of a witness was Ex. PW-8/E. PW-9 is Sh. Akhilesh Meena, Superintendent. SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 14/61 This witness deposed regarding deposition of case property i.e. 4 zipper bags in the custom godown. The relevant page of godown register was Ex. PW- 9/A to PW-9/D. PW-10 is Sh. Govind Kumar Garg, Joint Commissioner. He deposed regarding preparing of seizure and arrest report U/s 57 of NDPS Act by IO and he identified his signatures on said report. PW-11 is Sh. Anuj Kumar Pandey, Deputy Commissioner, Customs Audit. He deposed that he had issued letter dated 13.01.2017 to Chemical Examiner, CRCL for chemical analysis which was proved as Ex. PW-11/A. PW-12 is Sh. Dharmender, Superintendent. He is the IO of the case and he had deposed about the each and every investigation done by him in the present matter after production of accused persons before him by Sh. Jai Makhija, Duty SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 15/61 Manager, Gulf Airline. The baggage stub of accused was Ex. PW-12/A and PW-12/B, E-tickets of accused persons were Ex. PW-12/C, the proceedings conducted U/s 52A of NDPS Act was Ex. PW-12/D, the application U/s 52A was Ex. PW- 12/E, certificate issued by Ld. MM was Ex. PW-12/F, the photographs of proceedings were Ex. PW- 12/G1 to PW-12/G16 and CD was Ex. PW-12/H. PW-13 is Sh. Jai Makhika. He deposed that he was posted in Gulf Air as CSA and both the accused persons reported to him as they were departing to Behrin-Dammam. He issued boarding passed to them. He further deposed that he received message from DIAL Security GMR Level-IV that two baggages have been identified having some objectionable material. He further deposed regarding recovery of bottles of phensedyl cough linctus from their baggage.
SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 16/61 PW-14 is Sh. Taranjeet. He deposed that he was working in Gulf Airways as CSA and he was called by customs through Jai Makhija on 28.12.2016. He further deposed that he was informed that two passengers had been intercepted and they are not able to write in Hindi and English and were only able to sign in Hindi and therefore, his help was taken for explaining the documents. The arrest memos of accused persons were Ex. PW14/A to PW-14/B. STATEMENT OF ACCUSED:
17. After recording of the testimonies of the aforesaid PWs, the statement of the accused U/s 313 Cr. P. C. was recorded. During recording of statement of accused, accused pleaded their innocence and stated that they had been falsely implicated in the present case and the case property has been planted SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 17/61 upon them. They also deposed that nothing was recovered from their possession.
18. After closing of evidence and recording of Statement of accused U/s 313 Cr. P. C., an application U/s 311 Cr. P. C. was moved on behalf of Customs.
After hearing the arguments on same, the application U/s 311 Cr. P. C. was allowed vide order dated 17.05.2019 and only one opportunity was granted to customs to produce the witness Sh. Abdul Samad in the court. However, despite grant of two opportunities to Customs, witness Sh. Abdul Samad could not be produced by customs before the court and Custom department was also not having any knowledge about whereabout of this witness. Service report was also not filed, hence PE was closed again vide order dated 27.05.2019 and matter was posted for final arguments.
19. I have heard the submissions of Sh. Pramod SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 18/61 Bahuguna, Ld. Special Public Prosecutor for the Customs and Sh. Jitender Tyagi, Ld. Defence Counsel. ARGUMENTS OF PROSECUTION:
20. Ld. Special Public Prosecutor for the Customs submitted on the line of case filed by the department as well as on the line of the deposition of the aforesaid witnesses. Ld. SPP for the Customs stated that check in bag belonging to accused persons were examined which was found containing 200 bottles of Chlorpheniramine Meleate & Codeine Phosphate Cough Linctus Phensedyl Cough Linctus 100 ML each. It is stated that on being asked, accused failed to produce any evidence documentary or otherwise in support of lawful possession and export of the above said recovered bottles, therefore, vide panchnama, same were seized U/s 43 of NDPS Act on a reasonable belief that same were liable to be SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 19/61 confiscation. Thus, the accused persons are liable to be punished for the offences committed by them. ARGUMENTS OF DEFENCE:
21. On the other hand, Ld. Defence Counsel for accused submitted that accused have been falsely implicated in the present case and they have no concern with the alleged recovery of the said bottles. He further submitted that the alleged bottles doe not belong to accused persons. Ld. Defence Counsel argued that there are material contradictions in the testimony of the prosecution witnesses which falsify the case of prosecution. It is further argued the Panch Witnesses in the present case in whose presence, the recovery was effected have not supported the case of custom department and their deposition in court has created dent to the case of custom department.
22. I have considered the rival submissions and SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 20/61 gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence.
JUDGMENTS RELIED UPON BY LD. SPP FOR CUSTOMS:
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors.
2002 (2) CC Cases (SC) 58;
2) Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174;
3) Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1;
4) Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC);
5) M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631
6) Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23;
7) Dalel Singh Vs. State of Haryana (2010) 1 SCC SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 21/61 149,
8) Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692,
9) Karnail Singh Vs. State of Haryana (2009) 8 SCC 539,
10) Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413,
11) Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125
12) State of Punjab Vs. Baldev Singh (1999) 3 SCC
977. JUDGMENT RELIED UPON BY LD. DEFENCE COUNSEL:
1) Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. Reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409;
2) Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159.
SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 22/61 FINDINGS:
23. Ld. SPP for Customs has drawn the attention of the court to Section 50 and Section 67 of NDPS Act and relied upon case titled Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174, wherein it was held that section 67 NDPS Act permits the recording of statement made by the officers of NCB who are not the police officers. At this stage, the person concern is not an accused although he may be said to be in custody but on the basis of statement made by him, he could be made an accused subsequently. It is further held in Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1 that :
"Even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under article 20 (3) of the Constitution would SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 23/61 not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence".
24. In case Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC) it was held that such statement made to officer of department of Revenue Intelligence were not hit by Section 25 of the Evidence Act though twin tests of voluntariness and truthfulness have to be satisfied by the Court. Further in M. Prabhu Lal Vs. Asst. Director, it has been held that if confessional statement is found to be voluntary and free from pressure, it can be accepted. No doubt, it all depends upon facts and circumstances of each case and no hard and fast rule can be laid down in this connection, as to whether the alleged confessional statement should be accepted.
SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 24/61
25. So in view of law laid down in the case M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631 Scm Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174, Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23, the statement U/s 67 can be made basis for conviction but corroboration is required in the present matter, so statement U/s 67 of NPDS Act is not so important and is of no use and same does not strengthen the case of customs in the facts of the present case.
26. In the instant case, there is not enough material to prove the guilt of accused beyond doubt and technical as well as factual defects are there which are being discussed herein below. Ld. SPP for Custom in support of his contentions also placed reliance on the case titled Dalel Singh Vs. State of Haryana (2010) 1 SCC 149, Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692, Karnail Singh SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 25/61 Vs. State of Haryana (2009) 8 SCC 539, Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413, Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC
125.
27. So far as argument raised by Ld. Defence counsel with respect to section 50 of NDPS Act is concerned, Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
28. The question which thus arises for SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 26/61 consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 27/61 prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazetted Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 28/61 which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non-compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made".
29. It has been held by the Hon'ble Supreme SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 29/61 Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
30. Now this court will proceed to decide as to whether all norms required in such cases have been fulfilled or not.
SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 30/61
31. Reliance is placed upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1 wherein the Hon'ble High Court of Delhi has held as under:-
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he (accused) has been apprehended and is required to be searched, if he so desires he can first take the search of the police party - On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and the testimony of PW11 the Investigating Officer shows that the appellant was SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 31/61 informed only about the option and not about his right of being searched before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
32. I have perused the notices U/s 50 of NDPS Act.
The word mentioned is "Legal Right". Accused have appended their noting in Hindi language on the notice itself and their signatures are also in Hindi. Moreover, service of Interpretor Sh. Taranjeet Singh was taken for the convenience of accused. Said Interpretor had appended his signatures on the notices also. So there is sufficient compliance and this defence is not available to the accused persons and argument qua the same is discarded as observed above.
33. But one more thing is that recovery of contraband in the present case was not effected from the person of accused but from checked in SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 32/61 baggage of accused, hence effect of Section 50 of NDPS Act losses its significance and is not applicable in the present case.
34. To come at some conclusion, the evidence of prosecution witnesses is required to be gone through and discussed in the judgment.
35. PW-1 Sh. Samresh is a witness who was working as Senior Associate in DIAL GMR Security. He deposed that he observed some suspicious liquid in four baggages. He rejected the said baggages and referred to Level-4. He proved the summons issued to him as Ex. PW-1/A and his statement as Ex. PW-1/B. In his cross-examination, he deposed that "I have no knowledge that the bags in question belonged to whom. I have not seen the passenger with bags as neither the passenger nor bags used to reach at level 2 and only x-ray images appear on system". From his cross- SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 33/61 examination, it is clear that he has not seen the accused persons and this witness could not tell as to whom the said bags belonged.
36. PW-2 Sh. Sonu Sharma is also an official of DIAL. He had also deposed on the lines of PW-1 regarding observing of some suspicious liquid in four bags in question. Thereafter, he informed his senior and Airline staff and those baggages were physically examined and 200 bottles of phensedyl cough syrup were recovered. He proved the summons issued to him as Ex. PW-2/A, his statement as Ex. PW-2/B, duty allocation sheet as Ex. PW-2/C, SOP consisting of 2 pages as Ex. PW-2/D, log book Ex. PW-2/E and paper slips as Ex. PW-2/F to and PW-2/J.
37. In para No. 9 of his cross-examination, he deposed that "The bags in question were not received directly to me. The same were received at level-4 by staff. It cannot tell the SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 34/61 name of person of our staff who had received the bags at level-4 for the first time. It is correct that when the bags in question were received by me at level-4, the passengers were not with bags..... There were 5 persons from our staff at level-4 when the bags were received by our staff.
38. In para No. 10 of his cross-examination, he deposed that "It is correct that there were no identification tag on bags in question except the baggage tag affixed by airline. I cannot say whether the tags on the baggage could be affixed wrongly by mistake on bags by the staff of airline. ...... I cannot say whether the taggin system is a full proof system or that there are chances of committing mistake by airline staff while putting tags on baggage."
39. From above discussed cross-examination of SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 35/61 PW-2, it is clear that PW-2 has not received the bags directly. He could not tell the name of person who received the bags first time. Moreover, when bags were produced, the accused persons were not there. He stated that 5 persons from their staff at level-4 were present when the bags were received by our staff but names of said 5 persons have not been disclosed nor they have been produced before the court. He also admitted that there were no identification tag on bags in question except baggage tag affixed on same. He failed to tell whether the tags on baggage could be affixed wrongly by mistake on bags by staff or that tagging system is a full proof system or that there are chances of committing mistake by airline staff while putting tags on baggages. So from his above deposition, it is clear that he is not sure about his deposition regarding tagging system of baggages. His deposition puts SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 36/61 question on the accuracy of tagging system.
40. PW-3 Sh. Ashish Singhal, Superintendent Customs deposed that present case was assigned to him after Sh. Dharmender Kumar and during investigation, he got the statement of witnesses recorded through Sh. S. S. Singh Superintendent customs. The statement of accused persons recorded in jail were proved as Ex. PW-3/A and PW-3/B and the present complaint was Ex. PW-3/C. In his cross- examination, he deposed that "We have recorded the statement of accused persons in the office /room of Dy. Jail Superintendent. We have not associated any other jail inmate during recording of statement of accused persons". It is pertinent to mention here that when statement of accused persons was recorded in jail then custom officers should have joined any Jail Officer or should have taken their signatures in token SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 37/61 of correctness of same but strange enough they have not done so.
41. PW-4 Sh. Jitendra Kumar, Asst. Commissioner deposed that he was authorised by letter mark X to carry the samples to CRCL. He proved the copy of relevant entry made in register of godown as Ex. PW- 4/A. In his cross-examination, he admitted that "Samples were not drawn from each bottle and full bottle of each batch was taken as a sample. So it is clear that contents of other bottles cannot be stated to be prohibited drug or contraband.
42. PW-5 Sh. Rajesh deposed that in the year 2016, he was posted at IGI Airport as Loader and Sh. Dharmender Singh, Custom Office had called him at Custom Preventive Room to witness the search proceedings and there were two persons having two bags with them. He stated that officer served upon them notices U/s 102 of Customs Act and U/s 50 of SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 38/61 NDPS Act which were proved as Ex. PW-5/A to PW- 5/D, the panchnama was Ex. PW-5/E, the boarding passes were Ex. PW-5/F to PW-5/N and Passenger Manifest was Ex. PW-5/O. During his examination in chief, he identified one accused by face but he failed to tell his name and he also could not identify another accused.
43. PW-5 in his cross-examination recorded on 28.11.2018 in para 6, 7 and 8 deposed that "6......IO told me that accused persons have come to India from abroad. IO did not tell me as to from which country they have come. It is correct that the baggage shown to me today were not recovered from the possession of accused persons in my presence. (Vol. The baggage of accused persons were already in the room. The accused persons were in another room at a distance of place from the baggage SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 39/61 were lying. There were so many custom officers in room. I cannot say whether any Magistrate or Gazetted officer were present there or not. No public person were present there other than custom officer. I do not remember as to how many papers I had signed on that date however, same were 5-6 in numbers. I had not gone through the contents of said documents before signing, therefore I cannot say what were those documents which I signed on that day.
7. I had not seen the accused on that day. I had not seen the accused simultaneously at the time of baggage, meaning thereby it is correct that accused and baggage were never produced before me simultaneously. It is correct to suggest that accused was never produced before me. As the bag was already SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 40/61 opened, the contents of same was being counted when I reached there. Some of the articles were already lying on the floor. It is correct that where ever I was asked to sign by IO, I signed documents. The accused persons were shown to me when all the proceedings had already taken place and when I was leaving the room. I cannot identify now them due to lapse of time.
8. It is correct that area was having Cameras except the room where proceedings were conducted. One another person was also there who might have come after I left. He did not come in my presence. My signatures had already been taken and proceedings were conducted and I had left, thereafter some other person came as I was told".
44. From his above deposition, it is clear that IO SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 41/61 told him that accused persons had come to India from Abroad and IO did not tell him as to from which country they have come but on the contrary the case of prosecution is that accused were going to abroad. So his deposition in this regard is totally contrary to the case of customs. He also admitted that baggage shown to him were not recovered from the possession of accused persons in his presence. He also deposed that baggages and accused persons were in different room. He further deposed that he did not go through the contents of the documents before signing. He further admitted that accused and baggage were never produced before him simultaneously. He also admitted that accused was never produced before him and bag was already opened and contents of same were being counted when he reached there. This witness further admitted that accused persons were shown to him when all the SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 42/61 proceedings had already taken place and he failed to identify them. He further admitted that area was having cameras except the room where proceedings were conducted. So this witness has totally demolished the case of customs and as per his deposition, the seizure proceedings has lost his importance.
45. PW-6 Sh. Ravinder Kumar is one of the panch witnesses in this case. However, he failed to identify the accused persons even after seeing the persons sitting in court as well as outside the court. He deposed that he did not get the identity of accused persons from any document and he was informed the names of accused persons by IO.
46. In his cross-examination, he deposed that "It is correct that bags were not recovered in my presence. Nothing was recovered in my presence. Only the bags already in the hand of SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 43/61 IO were opened in my presence. The accused were present in same room when I was called but thereafter, both of them were sent in some other room. I stayed there for about 5 to 10 minutes only. The documents prepared at the spot were not read by me. (Vol. IO informed that it is concerning to the bottles recovered in the present case). There was no Gazetted officer/ Magistrate at spot, however Deputy Commissioner had come at spot during proceedings and later on, he left. I have signed my papers on that day but I do not remember the exact number of papers. There are CCTV Cameras installed at Airport."
47. From his deposition also, it is clear that bags were not recovered in his presence. It is further clear that accused persons were sent in some other room when seizure proceedings were conducted. He also SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 44/61 admitted that CCTV cameras were installed at the airport but no such footage of particular date and time have been placed on record.
48. PW-7 Sh. Jitender Singh, Superintendent is a formal witness who had recorded and proved the statement of accused persons recorded U/s 67 of NDPS Act as Ex. PW-7/A and PW-7/B. This witness also proved the letter written to MS, RML Hospital for medical examination of accused persons as Ex. PW- 7/C and PW-7/D, the detention receipts as Ex. PW-7/E and PW-7/J, the reports U/s 57 of NDPS Act as Ex. PW- 7/K and PW-7/L, letter dated 11.01.2017 written to Assistant Commissioner, Disposal Warehouse as Ex. PW-7/M, letter dated 16.01.2017 written to Chemical Examiner, CRCL as Ex. PW-7/N, letter dated 20.01.2017 written to Chemical Examiner, CRCL as Ex. PW-7/O and letter dated 31.01.2017, written to Chemical Examiner, CRCL as Ex. PW-7/P. Nothing SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 45/61 contrary has come in his cross-examination.
49. PW-8 Sh. Shiv Shankar Singh, Superintendent Customs had proved the summons to witness Sh. Jai Makhija as Ex. PW-8/A, his statement recorded U/s 67 of NDPS Act as Ex. PW-8/B, summons issued to witness Sh. Samad as Ex. PW-8/C, his statement recorded U/s 67 of NDPS Act as Ex. PW-8/D and the photocopy of Voter ID-card of a witness was Ex. PW- 8/E. In cross-examination, PW-8 had admitted that statement of accused persons taken in the jail premises were not countersigned by the Jail Superintendent or any jail officer. Though when statement of accused persons had been recorded in the jail premises then customs officers should have taken the counter signatures on the statement of accused itself in support of their case.
50. PW-9 Sh. Akhilesh Meena, Superintendent is a formal witness who had deposed regarding SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 46/61 deposition of case property i.e. 4 zipper bags in the custom godown. The relevant page of godown register was Ex. PW-9/A to PW-9/D.
51. PW-10 Sh. Govind Kumar Garg, Joint Commissioner had deposed regarding preparing of seizure and arrest report U/s 57 of NDPS Act by IO and he identified his signatures on said report. In his cross-examination, he failed to tell the time when the said reports were placed before him.
52. PW-11 Sh. Anuj Kumar Pandey, Deputy Commissioner, Customs Audit is another formal witness who deposed that he had issued letter dated 13.01.2017 to Chemical Examiner, CRCL for chemical analysis which was proved as Ex. PW-11/A.
53. PW-12 Sh. Dharmender, Superintendent is the IO of the case and he had deposed about the each and every investigation done by him in the present matter after production of accused persons before SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 47/61 him by Sh. Jai Makhija, Duty Manager, Gulf Airline. The baggage stub of accused was Ex. PW-12/A and PW-12/B, E-tickets of accused persons were Ex. PW- 12/C, the proceedings conducted U/s 52A of NDPS Act was Ex. PW-12/D, the application U/s 52A was Ex. PW- 12/E, certificate issued by Ld. MM was Ex. PW-12/F, the photographs of proceedings were Ex. PW-12/G1 to PW-12/G16 and CD was Ex. PW-12/H.
54. PW-12 in his cross-examination recorded on 12.03.2019 in para No. 5 deposed that "It is correct that inside the baggage from where the phensedyl cough syrup was recovered, there was no document inside showing ID of the accused persons".
55. In para No. 7 of his cross-examination, he deposed that "It is correct that no Gazetted officer or Magistrate was called at the spot at the time of seizure/recovery. It is correct that SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 48/61 cameras are installed in the area and assistance of same could have been taken. I cannot tell reason as to why proceedings were not conducted in camera. However, I had not taken any footage".
56. From his above discussed cross-examination, it is clear that no document was found in the baggage in question which could connect the accused or could establish that same belongs to accused persons except the baggage tag. He has admitted that Gazetted Officer or Magistrate were not called at the spot at the time of seizure/recovery though several Gazetted officer of custom department itself were available in the officer. He further admitted that CCTV cameras were installed in the area and assistance of same could have been taken but he failed to tell the reason as to why proceedings were not conducted in camera. It shows SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 49/61 that custom officials have tried to conceal the real picture.
57. PW-13 Sh. Jai Makhika in his examination in chief deposed that he was posted in Gulf Air as CSA and both the accused persons reported to him as they were departing to Behrin-Dammam. He issued boarding passed to them. He further deposed that he received message from DIAL Security GMR Level-IV that two baggages have been identified having some objectionable material. He further deposed regarding recovery of bottles of phensedyl cough linctus from their baggage.
58. In para No. 1 of his cross-examination, he deposed that "It is correct that I cannot identify the accused. At this stage, witness has been asked to go through the people standing in the court and to identify the accused but he has stated that he cannot recognize any of them SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 50/61 and cannot identify them. At this stage, this witness had identified one person as Mohd. Sadakat but his name is Mohd. Sohail and he is standing in some other case. It is correct that area is surrounded by CCTV footage. It is correct that at the time of my presence CCTV were running. No CCTV footage was taken in my presence. I had pointed out the bag from the Sl. No. mentioned on the boarding pass with the baggage tag. It is correct that no identify card was recovered from the bag and there were clothes in the bag."
59. From his cross-examination, it is clear that he failed to identify the accused persons. Rather, on being asked to identify the accused persons out of the people standing in the court, he could not recognize accused. Further, he wrongly identified one person to be Mohd. Sadakat. So it shows that either SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 51/61 he was not present on spot on relevant date or accused persons were not present in his presence. He admitted that area was surrounded by CCTV Footage and same were running. Apart from other witnesses, he also admitted that no identity document of accused persons were recovered from the bags in question.
60. Ld. Counsel for accused persons has pointed contradiction in Para No. 2 of the examination in chief of PW-2 wherein PW-2 deposed that accused persons opened their baggages by themselves and baggage were found to contain phensedyl cough syrup in huge quantity. But on the other hand, PW-5 in para No. 6 of cross-examination stated that baggages of accused persons were already in the room and accused persons were in another room at a distance of place from the baggage were lying. PW-6 in para No. 10 of his cross-examination has also stated same fact. So SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 52/61 it is observed that deposition of witnesses is not clear to the effect that bags were opened by them or bags and accused persons were in different room. These are material contradictions in the deposition of witnesses as at the time of recovery and seizure proceedings, the accused persons and bag should be at one place and recovery must have been effected from the bags in question in the presence of accused persons but deposition of witnesses in contradictory to each other.
61. PW-14 Sh. Taranjeet is the last witness in the present case produced by customs. In his examination in chief, he deposed that he was working in Gulf Airways as CSA and he was called by customs through Jai Makhija on 28.12.2016. He further deposed that he was informed that two passengers had been intercepted and they are not able to write in Hindi and English and were only able SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 53/61 to sign in Hindi and therefore, his help was taken for explaining the documents. The arrest memos of accused persons were Ex. PW14/A to PW-14/B.
62. In his cross-examination, he deposed that "I have no degree or diploma of Translator. I never worked as a Translator in any other case". From his deposition, it is clear that he was not professional Translator and having no degree and diploma as per his deposition and he has been engaged and involved by customs officers in mechanical manner just to complete the formality of providing Interpretor to accused persons and he cannot be said to be an Expert or some professional in Translation.
63. Reliance is also placed upon judgment passed by Hon'ble Supreme Court in case titled as Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. Reported in (2009) SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 54/61 12 SCC 161 and JT 2008 (7) SC 409 respectively wherein it was held that "purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement". In para No. 28 of said judgment, it was held that "If a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence". The above judgment is fully applicable to the present case.
64. Reliance is placed upon judgment titled as D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that "if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence".
65. The Ld. SPP stated that in the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 55/61 CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons- falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar". But this judgment is not applicable to present case due to above observation.
66. It is observed that whole premises of Airport is covered under CCTV Surveillance. It is admitted by several witnesses that preliminary inquiries from accused which were made outside the preventive room, that area is covered under the CCTV SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 56/61 Surveillance and no CCTV footage of said area of particular date and time were obtained by him. Further said CCTV footage of relevant date and time was very much precious part of evidence as same must have shown the person who had first time observed the suspicious item in bag and handled same as per the case customs and said CCTV footage must have strengthened the version of customs. However, same has not been placed on record for the reasons best known to customs.
67. From above discussion, it is crystal clear that panch witnesses have not supported the case of custom. They failed to identify accused persons and the case property in court. Their deposition in court has demolished the case of customs.
68. The Ld. Defence counsel has placed reliance upon judgment titled as Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159 wherein it SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 57/61 was held that "Conviction under, solely on basis of testimony of PW 1 who searched the accused - appellant without any prior information or entertaining any suspicion regarding the involvement of appellant - Recovery of opium from appellant's attache - Testimony of PW 1 contradicted as panch witnesses denying that a search and seizure or recovery of opium took place in their presence
- Even driver and conductor of the bus declared hostile- Held, evidence on which prosecution case hinges suffers from infirmities and it would not be safe to rely upon the sole testimony of PW 1 to hold the appellant guilty - Hence, conviction and sentence set aside".
69. This above judgment is fully applicable to the facts of present case as panch witness has not SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 58/61 supported the case of custom. Thus the evidence on which prosecution case hinges suffers from infirmities and this court also observes that it would not be safe to rely on sole testimony of IO/Custom officer.
70. It has to be kept in mind that whole area of Airport is under CCTV surveillance. Rather, CCTV Footage of accused persons and the movement of their baggages of particular date and time could have been placed on record to prove the case of prosecution and to ascertain the guilt of accused persons which has not been done in the present case.
71. As per the case of prosecution, if accused persons were having the bags containing contraband and baggages of the accused were appeared to be heavy from the bottom and they were apprehended and said baggages in question were x-rayed and contraband was recovered, the video recording of all SC No. 3902017 Custom Vs. Mohd. Sadakat Page No. 59/61 these proceedings should have been placed on record to prove the guilt of accused persons.
72. In the instant case all the procedural safeguards provided under a statute have not been strictly complied with. The prosecution has not discharged its burden of proving its case against the accused persons beyond all reasonable doubt.
73. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there are many reasons to discredit the inconsistent testimony of prosecution witnesses.
74. In view of the documents available on record, testimonies of the prosecution witnesses and the aforesaid discussion, this court holds that prosecution has not proved its case beyond shadow of doubt. Accused are given benefit of doubt qua the charged sections.
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75. It is observed that the ingredients of section 21
(c), 23(c), 28 & 29 of NDPS Act are not made out, hence, accused Mohd. Sadakat and Mohd. Gulzar are acquitted for the offence U/s 21 (c), 23 (c), 28 and 29 of NDPS Act.
76. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File Digitally signed by be consigned to record room. AJAY AJAY GOEL Date:
GOEL 2019.06.07
14:39:00
+0530
Pronounced in the open court. (AJAY GOEL)
Dated: 03.06.2019 ASJ/Special Judge (NDPS),
Dwarka Courts, New Delhi.
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