Delhi District Court
Sc No. 441052/16 Custom vs . Hemant Kr. Sarna Page No. 1/56 on 20 April, 2018
IN THE COURT OF AJAY GOEL, ADDL. SESSIONS
JUDGE-SPECIAL JUDGE (NDPS), DWARKA COURTS,
NEW DELHI.
Sessions Case No. 441052/2016
U/s: 20 (c), 23, 28 & 29 r/w Section 8 of NDPS Act
Department of Customs
IGI Airport, New Delhi
Through Mr. Rakesh Kumar,
Inspector Customs,
New Courier Terminal,
IGI Airport, New Delhi. ....... Complainant
VERSUS
Hemant Kumar Sarna,
S/o Lt. R. P. Sharma,
R/o N-1/12-6-3-K-1,
Dalmia Kothi Colony, Nagwa
Varansi, UP. ........ Accused
Date on which the complaint was filed : 16.07.2012
Date of assignment to this court: : 01.09.2017
Date on which judgment was reserved : 18.04.2018
Date on which judgment was pronounced : 20.04.2018
JUDGMENT:
CASE OF PROSECUTION:
1. The case of the prosecution is that on SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 1/56 19.01.2012, during x-ray of the goods meant for export through DHL Courier Company being done at New Courier Terminal Near IGI Airport, New Delhi by Sh. Virendra, X-ray Screener and Coordinator, one packet booked under AWB No. 8377248843 dated 17.01.2012, appeared to contain some suspicious material concealed therein, he informed Custom Inspector Mr. Surender Singh and on suspicion the said packet was detained by him vide Detention Memo No. 441195 dated 19.01.2012 through Sh.
Subir Mathur, a DHL Operation Agent in DHL warehouse. It was stated that said packet was manifested for export under above AWB No. 8377248843 dated 17.01.2012 by flight No. K4-0248 dated 19.01.2012 from DEL to LEJ (Delhi to Singapore) and listed at Sl. No. 99 of courier shipping bill (CSB-II) No. 110116 dated 19.01.2012 and further inquiries were handed over to custom preventive SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 2/56 Inspector Mr. Rakesh Kumar. As stated two panch witnesses were called and customs preventive Inspector conducted the x-ray of said box in their presence and was satisfied about the concealment in items kept in box. It was stated that shipment with detention memo was taken to preventive room from DHL warehouse for detail examination. One AWB Jacket was affixed with said shipment which was found containing some documents detailed in complaint and invoice also bears signature and date of shipper as for Garima Enterprises Proprietor. It was stated that outer covering of box was a foam layer and foam was secured with khaki adhesive tape and it was addressed to - Miceli Guglielmo, Lumpini Park View Condo 1026 Rama 4 Toad Sathorn, 10120, Bangkok, Thailand, From - Garima Enterprises C/o Miceli Guglielmo Ganesh House, B-1/128-15, ASSI Varanasi - 221005 UP, India and these addresses SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 3/56 were written on a piece of paper and this paper was secured with a transparent polythene layer and pasted on this foam covering of the box.
2. On cut open the layer of foam, a tabla trolley bag of maroon colour secured with adhesive tapes was found and the Tabla trolley bag of maroon colour had three inbuilt locks but it was not locked and after removing the tapes, the bag got opened and on opening said maroon bag, a book on Tabla, a set of tabla comprising "Tabla" and "Bayan" were found and the base of the tabla was narrow and there was a wide bottom cavity noticed and inside said cavity a thin polythene bag was found which contained some semi solid substances and on examination of said polythene, blackish semi solid pellets of narcotic substance suspected to be 'Hashish' were recovered; out of them some pellets were individually covered with then layer of polythene and entire recovered SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 4/56 substance was kept on a newspaper and on weighing on an electronic machine, net weight of recovered blackish substance was found to be 1400 gm. It was stated that small quantity of blackish was removed from the recovered substance and taken to DHL X-ray room and tested on Ion Scan Machine which gave positive result for presence of Narcotic Substance i.e. Hashish. It was stated that one panch accompanied custom Officer Sh. Rakesh Kumar to DHL testing room and another remained with other customs officer Sh. Lal Babu Kumar and the consignment in the Customs room. It was stated that three representative samples of blackish coloured pellets weighing 25 gms each were drawn and all the three samples were individually placed in self-locking transparent plastic pouches which were further placed individually in the yellow colour paper envelopes and then sealed with the customs seal for SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 5/56 testing in CRCL and remaining blackish coloured pellets weighing 1325 gms was kept in a self-locking transparent polythene bag, wrapped in white cloth and sealed with the customs seal and the other articles were also seized as these were also liable for confiscation under the provisions of NDPS Act.
3. Thereafter, panchnama was drawn on the spot and was read over and explained to panchas in vernacular and they accept the same as correctly recorded and custom officer signed the same. It was stated that during investigation, a letter dated 20.01.2012 was written to duty manager DHL, whereby sample 1 was demanded from the DHL warehouse for its onward transmission to CRCL and in response to said letter sample was produced and was deposited in intact condition with Sh. Rajeev Anand, Asst. Chemical Examiner, CRCL by Sh. Rakesh Kr. Inspector Custom with authorization letter and test SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 6/56 memo and a receipt vide diary No. 234 dated 20.1.2012 was obtained from CRCL and after examination, it was opined that sample is found positive for presence of Charas. During the course of investigation, summon dated 20.01.2012 U/s 67 of NDPS Act was issued to accused Hemant Kumar Sarna for the enquiries and in response to said summons, he appeared before custom officer on 23.01.2012.
4. Thereafter, samples were produced before accused for identification and in the presence of panchas and accused, the samples, entire seized shipment and recovered drug were opened and showed to them to which accused identified and accepted that these were the same goods which were packed by him in the consignment booked by him under AWB no. 8377248843 and said identification proceedings were recorded in SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 7/56 panchnama dated 23.01.2012. Recovered drug/goods were resealed and the contents of panchnama were explained to panchas and accused to which they signed the same in token of having correctness of same. During enquiries, written notices dated 23.01.2012 under Section 50 of NDPS Act was served upon the accused and he was apprised of his legal rights that if he wished his personal search could be conducted before Magistrate or any Gazetted Officer to which he replied in writing on the body of the notice itself that he does not want his presence and any custom officer can take his search and he put his dated signature on the body of both notices. The personal search of accused was conducted by complainant but nothing incriminating was recovered. In response to summon U/s 67 of NDPS Act, accused appeared before Sh. R. K. Arora, ACS on 23.01.2012 and he tendered his voluntary statement SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 8/56 in his own hand and admitted said recovery, seizure and other incriminating facts. It was stated that summon U/s 67 of NDPS Act was served upon Narender Partap Singh, Area Executive Bluedart Courier Co. Varanasi and in response to said summon, he appeared before Sh. R. K. Arora, ACS and tendered his voluntary statement in his own hand and identified accused as their regular customer and disclosed that accused had booked the parcel in question under AWB No. 8377248843 and handed over the copy of contract signed between accused and Bluedart Courier co. It was also stated that summon U/s 67 of NDPS Act was also served upon Ms. Rajni Srivastava, Booking Clerk of Bluedart courier co. Varanasi and Sh. Ashok Singh Rana, Team head of DHL, IGI Airport. As stated search was also conducted at the residence of accused but nothing incriminating was recovered. Thereafter, accused was SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 9/56 put under arrest vide arrest memo by complainant and report U/s 57 of arrest was prepared and communicated by complainant to his immediate superior and accused was medically examined at Safdarjung Hospital, New Delhi. It was stated that the enquiries against Mr. Miceli Goglielmo whose name was disclosed by accused were going on and he would be prosecuted as and when he is available.
5. Thereafter, complaint was filed in the Court and the court took the cognizance on the complaint. CHARGE:
6. After hearing the arguments, vide order dated 07.09.2012, charges U/s 20 (c), 23, 28 & 29 read with provisions of Section 8 of the NDPS Act was framed against the accused by Ld. Predecessor of this Court to which he pleaded not guilty and claimed trial. SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 10/56 Prosecution Evidence:
7. In support of its case, prosecution had examined following witnesses:
PW-1 is Sh. Virendra Singh, DHL, New Courier Terminal. He has deposed that he was posted as X-Ray Screener of DHL Courier Company on 19.01.2012 at New Courier Terminal and during screening, he observed some suspicious items in the parcel booked under AWB No. 8377248843 and he informed the Custom Officer Sh. Surinder Singh.
PW-2 is Sh. Surender Singh, Custom Officer, New Courier Terminal, IGI Airport. He deposed that on 19.01.2012, Sh. Virendra Singh (PW-1) informed him that he has observed some suspicious item in the parcel booked under AWB No. 8377248843 and thereafter, parcel was called by him for further inquiries. The proved the flight manifest as Ex. PW-2/A, the parcel booked under SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 11/56 AWB No. 8377248843 was detained vide detention memo Ex. PW-2/B. PW-3 is Sh. Subeer Mathur, Operation Agent, DHL Courier Co. He deposed that on 19.01.2018, one parcel destined to Bangkok booked under AWB No. 8377248843 was detained on the suspicion that same may be containing some narcotics substance and after detention, said parcel was handed over to Custom authorities for further investigation.
PW-4 is Mr. R. K. Arora, Superintendent Custom. He deposed that on 19.01.2012, he received a seizure report U/s 57 of NDPS Act from Sh. Rakesh Kumar, Inspector Custom and said report was proved as Ex. PW-4/A. He further deposed that he recorded statement U/s 67 of NDPS Act of one Virendra Singh, the X-ray co- ordinator of DHL Courier Company. The letter SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 12/56 written to Duty Manager DHL in respect of regulation 13 of Courier Import and Export Clearance Regulation was Ex. PW-4/B, the letter dated 20.01.2012 was Ex. PW-4/C, summon U/s 67 of NDPS Act received by Sh. Narender Pratap Singh was Ex. PW-4/D, another summon U/s 67 NDPS Act issued to proprietor of Blue Dart Express, Varanasi was Ex. PW-4/E, the summon issued U/s 67 of NDPS Act to proprietor of Garima Enterprises, Varanasi was Ex. PW-4/F, the receipt copy of summon is Ex. PW-4/G, statement of Ashok Singh Rana, of DHL Courier Company was Ex. PW-4/H. He further proved other documents in respect of present case.
PW-5 is Sh. Gaurav Choudhary, Duty Manager, DHL Express, New Courier Terminal. He deposed that on 19.01.2012, he received three sealed samples from Sh. Rakesh Kumar, Custom SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 13/56 Inspector for the purpose of safe custody being custodian vide Superdaginama Ex. PW-5/A and after receipt of same, same were deposited with the DHL godown in safe custody.
PW-6 is Sh. Neeraj Balani, Duty Manager, DHL Express, New Courier Terminal. He deposed that on 24.01.2012, he received one sealed envelope containing jamatalashi vide Superdaginama Ex. PW-6/A for the purpose of keeping the same in safe custody. The jamatalashi memo is Ex. PW-6/B. PW-7 is Sh. Rajeev Anand. He deposed that on 20.01.2012, he was posted at CRCL as Asst. Chemical Examiner and he received sample 1 in intact condition with authorization letter and test memo in duplicate from custom officer Sh. Rakesh Kumar and he had issued a receipt in token of having receipt the sample 1 Ex. PW-7/A. He SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 14/56 deposed that examination of sample was conducted in presence of chemical examiner Sh. Bhuwan Ram and same was found positive for Charas. The report was Ex. PW-7/B. PW-8 is Sh. Narende Pratap Singh. He deposed that on 17.01.2013, he was working with Blue Dart Courier Company at Varanasi and one person namely Hemant Kumar came to their office for the purpose of booking a parcel and on his request, parcel was booked under AWB No. 8377248843. He further deposed that during inquiry, he was summoned by custom authorities and he appeared before custom officer and tendered his voluntary statement.
PW-9 is Sh. Ajay Kumar Sinha, Inspector, Central Excise, Varanasi. He deposed that he on the instructions of his officers, visited the premises of accused for the purpose of search and search SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 15/56 was conducted in the presence of two witnesses but nothing incriminating was recovered. The panchnama was Ex. PW-9/A. PW-10 is Sh. Rakesh Kumar, Inspector Service Tax Commissionerate. He deposed that on 19.01.2012 he had received communication from Sh. Virendra Singh that they had detained one parcel booked under AWB No. 8377248843. He deposed that detail of AWB No. 8377248843 and its packet are appearing at S. No. 99 of flight manifest and same was Ex. PW-10/A. PW-11 Ms. Rajni Srivastava. She deposed that on 17.01.2012, she booked one parcel under AWB No. 8377248843 to Bangkok, Thailand and said parcel was booked by Accused Hemant Sarna. PW-12 Sh. Bhuwan Ram, Chemical Examiner, CRCL. He deposed that samples of blackish brown semi solid coloured pellets like substance SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 16/56 suspected to be contraband was received and he examined with qualitative test and found it positive test for charas and after examination, he sealed the remnant samples in plastic pouch with gross weights of samples i.e. 15.2 gm with seal of CRCL.
PW-13 is Sh. Ashok Singh Rana. He deposed that on 19.01.2012, he was on duty with DHL at IGI Airport and he received one consignment i.e. on box from Varanasi destined to Canada and on scanning through x-ray, it was found containing one tabla and x-ray scanner got some doubt on said consignment and he immediately passed the message regarding something kept in said tabla. The said information was Ex. PW-13/A. PW-14 is Sh. Paramjeet. He deposed that he was called by Custom Inspector Sh. Rakesh Kumar and requested to witness the proceedings of case SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 17/56 to which he agreed and witnessed the proceedings of case.
PW-15 is Ajay Kapoor. He deposed that he was posted as Duty Manager DHL Express and on 15.02.2012, custom Officials handed over him one sealed envelop sealed in intact condition with seal of custom containing remnant samples. He deposed that he received the same and kept the same under safe custody.
PW-16 is Dr. Bindi Garg, Medical Officer, Safdarjung Hospital. He deposed that accused was medically examined by Dr. Dhirender Pratap Singh and prepared MLC Ex. PW-10/M and as per MLC, there was no mark of injury on the body of accused.
PW-17 is Sh. Ram Shankar Maurya. He deposed that on 23.01.2012, he was called by Custom Inspector Rakesh Kumar to join the SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 18/56 proceedings and besides him, another witness Lalit Kumar was also present.
PW-18 is Sh. R. K. Sharma, Superintendent, Indo-Nepal border, Behraich, UP. He deposed that on 01.02.2012, he alongwith his other staf visited the business premises of Garima Enterprises at B-1/128-15-B, Dumrav Bagh Colony, Assi, Varanasi and there they met Smt. Phool Kumari Aggarwal who disclosed that Garima Enterprises was working at ground floor and said business organization has closed its business in the month of March 2011. She tendered her statement in this regard which is Ex. PW-18/A. PW-19 is Sh. M. L. Singh, Inspector Custom Division, Gorakhpur UP. He deposed that on 01.02.2012, he with his other staf visited the business premises of Hemant Sarna at B-1/229-A, Assi, Varanasi UP for the purpose of search and SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 19/56 after searching the premises, nothing incriminating was recovered. A panchnama was drawn which is Ex. PW-19/A. PW-20 is Sh. Maksood Hasan, Superintendent, Customs & Central Excise, Allahabad. He deposed on 02.02.2012, on the basis of communication from the Customs Department, he had made inquiries in the present case and issued summons to Sh. Narender Pratap Singh, Executive of Blue Dart Courier Company and in response to summons, he appeared before him and tender his voluntary statement U/s 108 of Customs Act which is Ex. PW-20/A and copy of his Id with his dated signature on same was Ex. PW- 20/B and letter sent by Sh. Narender Pratap Singh was Ex. PW-20/C. PW-21 is Sh. Pulak Kumar Lehri. He deposed that on 01.02.2012, some custom officials SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 20/56 requested him to join search proceedings to be conducted at the residence of accused and on their request, he had joined the proceedings and besides him one Smt. Archna Sharma was also present during the search proceedings. He further deposed that search was conducted but nothing incriminating was recovered therefrom. PW-22 is Dr. Dheerendra Pratap Singh. He deposed that on 24.01.2012, he was posted at Safdarjung Hospital as Jr. Casualty Doctor and one person namely Hemant Kumar Sarna was produced before him by some Custom Officials for his medical examination and he was medically examined and MLC was prepared.
PW-23 is Sh. Vivekanand Rai, Deputy Commissioner. He deposed that in the month of January 2012, he was posted at Customs Division Varanasi and he had received a letter from office of SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 21/56 Dy. Commissioner, Customs, New Courier Terminal whereby custom division asked to conduct further investigation in the matter and said letter was Ex. PW-23/A and thereafter follow up investigation in the matter was conducted under his supervision and compilation report dated 10.12.2012 was Ex. PW-23/B. PW-24 is Sh. Parvesh Kumar. He deposed that on 15.02.2012, he was working with DHL Courier Company at New Courier Terminal and he was called by Sh. Rakesh Kumar, Custom Inspector to witness the proceedings in respect of one sealed envelope received from CRCL and besides him, Mr. Ram Swaroop had also joined the proceedings. PW-25 is Sh. Vikas Pandey. He deposed that on 01.12.2012, some officers of Customs and Central Excise Department visited the house of accused for the purpose of search and search of house of SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 22/56 accused was conducted but nothing incriminating was recovered.
PW-26 is Smt. Garima. He deposed that his father Sh. Hemant Kumar Sarna had started business of courier under the name and style of M/s Garima Enterprises at Varanasi. It was stated that summon U/s 67 of NDPS Act was received by her father and some custom officers visited the house of his father for the purpose of search and search was conducted but nothing incriminating was recovered.
During proceedings, on the statement of Ld. SPP for the customs Pws namely Smt. Archana Sharma, Smt. Phool Kumari Aggarwal, Sh. Raju Vishwa and Sh. Sanjay Patel were dropped as the documents related to these witnesses had already been proved by the other witnesses and their deposition SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 23/56 was not required.
Vide order dated 12.12.2014, witness Sh. Ashish Saxena and Sh. Lalit were also dropped at the request of Ld. SPP for the Customs. Sh. Ashish Saxena was one of the panch witnesses in the present case.
STATEMENT OF ACCUSED:
8. After recording of the testimonies of the aforesaid PWs, the statement of the accused U/s 313 Cr. P. C. was recorded wherein he stated that he is innocent and has been falsely implicated in the present case. He stated that he only booked the parcel through the consignees ID and he had no knowledge what was inside the parcel because he has no facility of scanner at Garima Enterprises and SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 24/56 the custom officers had taken forcibly his signatures on some blank papers and blank chits to implicate him in the present case. He did not wish to lead DE in his defence.
9. I have heard the submissions of Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs and Sh. T. K. Mahapatra, Ld. Defence Counsel and have also gone through the records and documents of the present case.
ARGUMENTS OF PROSECUTION:
10. Sh. P. C. Aggarwal, 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 accused had booked the parcel in question under AWB No. 8377248843 and during x-
ray scanning of said parcel at Airport, it was found SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 25/56 containing contraband recovered in the present case. On weighing on an electronic machine, net weight of recovered blackish substance was found to be 1400 gm and accordingly, summon dated 20.01.2012 U/s 67 of NDPS Act was issued to accused Hemant Kumar Sarna for the enquiries and in response to said summons, he appeared before custom officer on 23.01.2012. During enquiries written notices dated 23.01.2012 under Section 50 of NDPS Act was served upon the accused and he was apprised of his legal rights. It is argued that accused is involved in serious case of drug trafficking and he be punished for the charged ofences.
ARGUMENTS OF DEFENCE:
11. On the other hand, Ld. Defence Counsel for accused submitted that accused has been falsely implicated in the present case and he has no concern SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 26/56 with the alleged recovery of the hashish. He further submitted that he only booked the parcel through the consignees ID and he had no knowledge what was inside the parcel because he has no facility of scanner at Garima Enterprises and the custom officers had taken forcibly his signatures on some blank papers to implicate him in the present case.
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) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 27/56
6) M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631
7) Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23;
8) Dalel Singh Vs. State of Haryana (2010) 1 SCC 149,
9) Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692,
10) Karnail Singh Vs. State of Haryana (2009) 8 SCC 539,
11) Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413,
12) Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125
13) 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 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 28/56 Vs. State of Punjab & Anr. Reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409.
12. I have considered the rival submissions and 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.
FINDINGS:
13. The counsel for accused has argued that accused has been falsely implicated and he has no connection with crime. It is argued by Ld. SPP for the custom that witnesses produced in court have no motive or reason to falsely implicate the accused in this case and they have deposed as per their roll in the investigation of the present case and thus their deposition cannot be ignored. He relied upon the case of Krishna Mochi & Ors. Vs. State of Bihar SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 29/56 & Ors. 2002 (2) CC Cases (SC) 58 in which 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".
The law laid down in above judgment is right and position of law is not disputed but corroboration of facts is required because it is not the case where accused was carrying some contraband in person or that he was carrying some contraband in his bag to take the same out of India.
SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 30/56
14. 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 not operate against him if such statement was given voluntarily and without any threat or SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 31/56 compulsion and if supported by corroborating evidence".
15. 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 Supra, 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 a alleged confessional statement should be accepted. 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, SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 32/56 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 prosecution in the facts of the present case. 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. 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 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. Position of law is not disputed. The counsel SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 33/56 for accused has argued that statement U/s 67 is not important because nothing was recovered. So in these circumstances, the arguments of both parties regarding statement U/s 67 NDPS Act is not so important, however the efect and veracity of same is dealt with in later part of judgment.
16. 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. SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 34/56
17. The question which thus arises for 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 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 35/56 searched about his right in writing. The 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 Gazette 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 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 36/56 Hon'ble Supreme Court dealt with the case in 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 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 37/56 compliance U/s 50 NDPS Act was made". Similarly, the position of law is not disputed but again proceedings U/s 50 of NPDS Act is not so important and is of no use and same does not strengthen the case of prosecution in the facts of the present case because again nothing was recovered from his person and no personal search was required.
18. It has been held by the Hon'ble Supreme 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 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 38/56 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. From bare perusal of notice served upon accused U/s 50 of NDPS Act, it is not made out as to what incriminating information was given by accused in the same. He has named said person namely Miceli Guglielmo on whose behalf he has booked the parcel as he has requested the accused that if he sends the parcel in his own name, it would reach early as accused is account holder of Blue Dart Express Ltd. The accused has given his voluntary statement Ex. PW-4/R disclosing the facts and he has not tried to conceal his name or identity.
19. From the perusal of record and evidence available on record it is observed that on 19.01.2012, during x-ray of the goods meant for export through SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 39/56 DHL Courier Company being done at New Courier Terminal Near IGI Airport, New Delhi by Sh. Virendra, X-ray Screener and Coordinator, one packet booked under AWB No. 8377248843 dated 17.01.2012, appeared to contain some suspicious material concealed therein, he informed Custom Inspector Mr. Surender Singh and on suspicion the said packet was detained by him vide Detention Memo No. 441195 dated 19.01.2012 through Sh. Subir Mathur, a DHL Operation Agent in DHL warehouse. The further inquiries were handed over to custom preventive Inspector Mr. Rakesh Kumar. It is the case of prosecution that two panch witnesses namely Sh. Paramjeet and Sh. Ashish Saxena were called and customs preventive Inspector conducted the x-ray of said box in their presence and was satisfied about the concealment in items kept in box. But one of Panch witnesses namely Sh. Ashish Saxena was SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 40/56 dropped by prosecution and second panch witness namely Sh. Paramjeet has deposed that contraband was opened in his presence but at that time accused was not present. When suspicious article was identified during scanning and details of accused were found on parcels then before opening the parcel, the accused herein should have been called and in his presence, contraband should have been opened. Thus, interference/introduction of contraband cannot be ruled out. It is further the case of prosecution that shipment with detention memo was taken to preventive room from DHL warehouse for detail examination. One AWB Jacket was affixed with said shipment which was found containing some documents detailed in complaint and invoice also bears signature and date of shipper as for Garima Enterprises Proprietor. It is the case of prosecution that outer covering of box was a foam layer and foam SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 41/56 was secured with khaki adhesive tape and it was addressed to - Miceli Guglielmo, Lumpini Park View Condo 1026 Rama 4 Toad Sathorn, 10120, Bangkok, Thailand, From - Garima Enterprises C/o Miceli Guglielmo Ganesh House, B-1/128-15, ASSI Varanasi
- 221005 UP, India and these addresses were written on a piece of paper and this paper was secured with a transparent polythene layer and pasted on this foam covering of the box and on cut open the layer of foam, a tabla trolley bag of maroon colour secured with adhesive tapes was found and the Tabla trolley bag of maroon colour had three inbuilt locks but it was not locked and after removing the tapes, the bag got opened and on opening said maroon bag, a book on Tabla, a set of tabla comprising "Tabla" and "Bayan" were found and the base of the tabla was narrow and there was a wide bottom cavity noticed and inside said cavity a thin polythene bag was found SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 42/56 which contained some semi solid substances and on examination of said polythene, blackish semi solid pellets of narcotic substance suspected to be 'Hashish' were recovered; out of them some pellets were individually covered with then layer of polythene and entire recovered substance was kept on a newspaper and on weighing on an electronic machine, net weight of recovered blackish substance was found to be 1400 gm. It is the case of prosecution that small quantity of blackish was removed from the recovered substance and taken to DHL X-ray room and tested on Ion Scan Machine which gave positive result for presence of Narcotic Substance i.e. Hashish. The panchnama was drawn on the spot and was read over and explained to panchas in vernacular and they accepted the same as correctly recorded and custom officer signed the same.
SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 43/56
20. During inquiries of the case, accused Hemant Kumar Sarna, proprietor of Garima Enterprises was booked in the present case who has booked the said parcel through the consignees ID.
21. To come at some conclusion, the evidence of prosecution witnesses is required to be gone through and discussed in the judgment.
22. The testimony of PW-4 Sh. R. K. Arora, Superintendent Custom, NCT, New Delhi recorded on 03.01.2013 at page No. 9 is given below:-
"During his statement, accused Hemant Kumar Sarna disclosed that he went to Blue Dart Courier Company on 17.01.2012 to book the parcel in question and he had booked the parcel in question in the name of M/s Garima Enterprises. He also disclosed that one Italian National namely SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 44/56 Mr. Miceli Guglielmo came to him and gave copy of his passport, copy of invoice and one declaration. During enquiries, accused disclosed that the aforesaid Miceli asked him to book the consignment in the name of Garima Enterprises as same would be easy to clear the goods at airport. He also disclosed that besides the courier charges he had taken Rs. 10,000/- from Miceli to facilitate him for the booking of parcel in the name of Garima Enterprises. During enquiries, five photographs which were taken during the seizure of consignment in question were shown to accused to which he admitted that the consignment which is appearing in the photographs is the same consignment which he had booked at SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 45/56 Varanasi with Blue Dart Courier Company under the name of Garima Enterprises."
23. So from his deposition that it is observed that accused herein has not booked the parcel in question and same was booked by Mr. Miceli Guglielmo on furnishing of copy of his passport, copy of invoice and one declaration and said Miceli asked him to book the consignment in the name of Garima Enterprises as same would be easy to clear the goods at airport.
24. PW-8 Sh. Narender Pratap Singh during his cross-examination recorded on 11.09.2013 has admitted as under"
"It is correct that besides the accused Hemant Sarna, the other credit customers also filled their name in the column of the shipper of the airway bill and invoice to obtain the additional SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 46/56 discount from their company in connection of booking the parcels. This is a regular practice between our credit customs and the company. No scanning machine installed in DHL Branch of Varanasi. We checked the received parcels manually before forwarding them to destination. Normally, it is not possible to trace out manually, if something is concealed in the parcel, however, if we have any suspicion about the parcel. We mail about it to our Delhi DHL office. In the present case, we have not sent any mail to our Delhi DHL Office".
25. So the above cross-examination, of PW-8 shows that parcels were manually checked before SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 47/56 forwarding, hence it was no possible to trace out manually if something is concealed in the parcel and no scanning machine was installed in the DHL Branch of Varanasi. So accused was handicapped without availability of scanning machine while accepting parcel from said Italian National namely Mr. Miceli Guglielmo. The position would have been diferent, if scanning machine would be available in the office and parcel in question would have been scanned before booking by accused herein then in those circumstances, no sane person would have booked the parcel from said Italian National namely Mr. Miceli Guglielmo for such a meager amount of Rs. 10,000/- knowing fully well that said act of him would implicate him in criminal prosecution. PW-8 has specifically deposed during his cross-examination that besides the accused, the other credit customers also filled their name in the column of the shipper of SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 48/56 the airway bill and invoice to obtain the additional discount from their company in connection of booking of parcel, however it is not proved that handwriting on filled column is pertaining to accused and there is every possibility that after arrival of shipment, the name of accused has been filled in Ex. PW-8/A by some other person and if this document is not taken into account, the only remaining evidence available with prosecution is of admission of accused which itself is not sufficient to convict him. Moreover, it has come on record that it is some other person who had booked the parcel.
26. PW-12 Sh. Bhuwan Ram, Chemical Examiner, Grade-I, CRCL has given his opinion vide report Ex. PW-7/B and deposed that after examination, he found the recovered substance positive for Charas. So, there is no doubt that recovered substance was Charas which is a Narcotic Drug but accused herein SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 49/56 cannot be saddled with or held liable for recovery of same in view of the above discussion.
27. The witnesses produced by prosecution are formal in nature and they have deposed as per their role in the investigation of the present case.
28. 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) 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 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 50/56 case.
29. The accused while recording his statement U/s 313 Cr. P. C. has specifically deposed that he is innocent and has been falsely implicated in the present case. He stated that he only booked the parcel through the consignees ID and he had no knowledge what was inside the parcel because he has no facility of scanner at Garima Enterprises and the custom officers had taken forcibly his signatures on some blank papers and blank chits to implicate him in the present case. His submissions recorded in Statement U/s 313 Cr. P.C. are also in contrast with evidence of PW-4 who has also deposed regarding disclosure made by accused before him.
30. Furthermore, attention of court is drawn to the invoices Ex. PW-10/B and Ex. PW-10/C by counsel for accused. In said invoices, in the column of consignee, the name "Miceli Guglielmo, Lumpini SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 51/56 Park View Condo 1026, Rama Road Sathorn 10120 Bangkok, Thailand" is mentioned. So accused herein has not tried to hide the identity of the accused and thus no foul play was there while accepting booking from said Mr. Miceli Guglielmo.
31. Further, Ld. Counsel for defence has drawn the attention of court towards copy of passport obtained by accused from said Miceli Guglielmo Ex. PW-4/R1 and Ex. PW-4/R2 and argued that as per practice while accepting booking, the accused has obtained necessary documents from Mr. Miceli Guglielmo on token of his identity.
32. So from above, it is observed accused has booked the parcel given by Mr. Miceli Guglielmo on completing formalities of booking of parcel by taking his identity document and since scanning machine was not available, said parcel could not be scanned and by taking advantage of same, said Mr. Miceli SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 52/56 Guglielmo had booked the parcel through Garima Enterprises which was later on intercepted and accused was implicated in the present case.
33. It is pertinent to mention here that this court is not of the view that prosecution has left any lacuna during the investigation or that contraband was not recovered in the present case or that there is any doubt that contraband recovered was not found positive for charas, but it is observed that same was not booked by accused Hemant Kumar Sarna and rather parcel in question was booked by said Miceli Guglielmo in the name of Garima Enterprises after showing his identity card i.e. copy of his passport and accused herein cannot be held liable for commission of charged ofence.
34. It is further important to note here that nothing incriminating was recovered from either business or residential premises of accused herein in present SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 53/56 case while conducting search by custom officers.
35. The link evidence is totally missing. The position would have been diferent, if accused would have booked the parcel on its own without taking any identity documents of said Miceli Guglielmo. Thus, prosecution has failed to discharge its burden of proving its case against the accused beyond all reasonable doubt. This case is based on conjectures or surmises. Thus on all counts, guilt of accused has not been duly proved and he is given benefit of doubt qua the charged sections.
36. From the testimonies of prosecution witnesses, it is not made out that accused conspired with said Miceli Goglielmo to conceal the recovered 1400 gms of charas in the said parcel or that accused was having possession of said charas or that accused Hemant Kumar Sarna tried to export the same out of India in contravention of the provisions of Section 8 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 54/56 of NDPS Act. From the above discussion of evidence, it is not made out that the accused herein had made any conspiracy, abetment and attempt to export the contraband from India. Rather, he has disclosed the name of person (Miceli Goglielmo) from whom he booked the parcel without trying to conceal his identity though if he had an iota of idea about the contraband concealed in the parcel in the parcel in question, he could easily have concealed his identity to save his skin from the present case, thus ingredients of Section 20 (c), 23, 28 and 29 read with section 8 of NDPS Act are not made out and not proved.
37. In view of the documents available on record, testimonies of the prosecution witnesses and the aforesaid discussion, this court holds that prosecution has failed to proved its case beyond any shadow of doubt. Hence, accused is acquitted U/s 20 (c), 23, 28 SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 55/56 & 29 read with provisions of Section 8 of the NDPS Act 1985. Bail bond u/s 437A Cr. P.C. in the sum of Rs.25,000/- has been furnished on behalf of the accused which have been accepted and shall remain in force for a period of six months from the date of its acceptance. Previous bail and surety bond of accused stand discharged. Copy of this judgment be also given to accused free of costs. The case property is confiscated to the State and be disposed of as per rules.
Pronounced in the open court. (AJAY GOEL) Dated: 20.04.2018 ASJ/Special Judge (NDPS), Dwarka Courts, New Delhi.
Digitally
signed by
AJAY AJAY GOEL
Date:
GOEL 2018.05.02
12:45:09
+0530
SC No. 441052/16 Custom Vs. Hemant Kr. Sarna Page No. 56/56