2006 (11) TMI 545 - HC - Indian Laws

Summary

Issues Involved:
1. Sentencing under Sections 29 and 21 of NDPS Act.
2. Recovery of contraband and involvement of independent witnesses.
3. Voluntariness and validity of confessional statements under Section 67 NDPS Act.
4. Conscious possession of heroin.
5. Compliance with Section 50 NDPS Act.
6. Compliance with Section 42(2) NDPS Act.

Summary:

1. Sentencing under Sections 29 and 21 of NDPS Act:
The appellants, both Nepali nationals, were sentenced to 14 years Rigorous Imprisonment each u/s 29 and 21 of NDPS Act, along with a fine of Rs. 1,00,000/- for each offense. In default of payment, they were to undergo an additional one year of Rigorous Imprisonment for each section. The sentences were to run concurrently, and the appellants were given the benefit of Section 428 Cr. P.C.

2. Recovery of contraband and involvement of independent witnesses:
The prosecution's case involved the recovery of heroin capsules from the appellants at I.G.I. Airport and subsequent recovery from a room at Yak House, New Tibetan Camp, Delhi. The defense argued the non-production of independent panch witnesses. However, the court noted that the witnesses were untraceable and emphasized that the absence of independent witnesses does not necessarily discredit the prosecution's case, relying on precedents such as Nathusingh v. State of Madhya Pradesh and Ahir Raja Kohmia v. State of Sorashtra.

3. Voluntariness and validity of confessional statements under Section 67 NDPS Act:
The appellants contended that their confessional statements were made under duress. The court found this argument unconvincing, noting that the statements were in the appellants' handwriting and contained detailed information. The court held that the statements were voluntary and corroborated by other evidence, citing cases like Triveni Prasad v. State of Maharashtra and Namdi Francis Nwazor v. NCB.

4. Conscious possession of heroin:
The defense argued that the prosecution failed to prove conscious possession of heroin. The court dismissed this argument, stating that once possession is established, the burden shifts to the accused to explain it, as per Sections 35 and 54 of NDPS Act. The court noted the recovery of the appellant's passport and a diary from the contraband bag as evidence of conscious possession.

5. Compliance with Section 50 NDPS Act:
The appellants argued non-compliance with Section 50 NDPS Act. The court clarified that Section 50 applies to personal searches and not to the search of bags. The court referred to authorities such as State of H.P. v. Pawan Kumar and State of Punjab v. Balwant Rai to support this interpretation.

6. Compliance with Section 42(2) NDPS Act:
The defense argued non-compliance with Section 42(2) NDPS Act. The court found no merit in this argument, noting that the search was authorized by a Deputy Commissioner of Customs, and cited G. Srinivas Goud v. State of A.P. to explain that gazetted officers need not report to their superiors when they conduct searches themselves.

Conclusion:
The court dismissed the appeals, finding the sentences reasonable and fitting the offenses committed. The judgment emphasized the seriousness of drug trafficking and the need for stringent measures against offenders.