2006 (12) TMI 488 - HC - Customs

Summary

Issues Involved:
1. Reliability of Panch Witnesses
2. Handling of Seal Post-Use
3. Accounting for Remnant Samples
4. Filling of Test Form at the Spot
5. Production of Malkhana Register
6. Contradictions in Witness Statements
7. Non-Notification of Appellant's Relatives Post-Arrest
8. Recording of Appellant's Statement Without Counsel
9. Retraction of Confessional Statement
10. Breach of Guidelines by Narcotic Control Bureau
11. Non-Compliance with Sections 52A and 57 of the NDPS Act

Issue-wise Detailed Analysis:

1. Reliability of Panch Witnesses:
The appellant argued that the panch witnesses were unreliable, with one not examined and the other not supporting the prosecution. However, the court found that the taxi driver, who was a panch witness, supported the prosecution's case materially. He testified about the presence of NCB officials, the recovery of heroin, and identified the appellant and case property. The court concluded that minor discrepancies do not render a witness unreliable, and the independent witness stood up well to cross-examination.

2. Handling of Seal Post-Use:
The appellant contended that the seal used during the investigation remained with Mr. D.C. Mishra, raising the possibility of misuse. The court noted that there is no statutory requirement under the NDPS Act for handing over the seal to an independent witness. The court found that the seals were intact when the samples were received by the CRCL and that the samples were sent the very next day, ruling out tampering.

3. Accounting for Remnant Samples:
The appellant argued that the remnants of the samples were not accounted for. The court found this claim to be false, as the remnants were found intact with the CRCL seal when produced in court. The court dismissed this argument, noting that the samples were properly accounted for.

4. Filling of Test Form at the Spot:
The appellant argued that the test form was not filled at the spot, which was mandatory. The court found that while the test memo was prepared on 25.3.1998, it was not necessary for it to be filled at the spot. The court emphasized that there is no statutory requirement for the test memo to be prepared at the recovery spot, and the guidelines issued by the department are advisory and not legally binding.

5. Production of Malkhana Register:
The appellant argued that the non-production of the Malkhana register was fatal to the prosecution's case. The court found that the oral testimony of the officials who deposited the case property in the Malkhana was sufficient. The court noted that the appellant resisted the production of the Malkhana register, and thus could not draw any mileage from its non-production.

6. Contradictions in Witness Statements:
The appellant pointed out contradictions in witness statements. The court found that minor discrepancies are natural and do not render the testimonies doubtful. The court emphasized that the overall testimony of the witnesses was truthful and consistent on material aspects.

7. Non-Notification of Appellant's Relatives Post-Arrest:
The appellant argued that her relatives were not informed about her arrest. The court did not find this argument substantial enough to impact the case's outcome.

8. Recording of Appellant's Statement Without Counsel:
The appellant contended that her statement under Section 67 of the NDPS Act was recorded without giving her time to think and without counsel. The court found that the conviction was not based solely on the confessional statement, but on the recovery of heroin and other evidence. The court noted that the appellant did not retract her statement at the first opportunity and did not complain of torture when produced before the magistrate.

9. Retraction of Confessional Statement:
The appellant retracted her confessional statement, claiming it was obtained under torture. The court found that the recovery of heroin was proved independently of the confessional statement. The court also noted that the appellant did not retract her statement immediately and did not complain of torture when given the opportunity.

10. Breach of Guidelines by Narcotic Control Bureau:
The appellant argued that the prosecution breached guidelines issued by the Narcotic Control Bureau. The court found that these guidelines are advisory and not legally binding. The court emphasized that statutory provisions and rules under the NDPS Act were complied with.

11. Non-Compliance with Sections 52A and 57 of the NDPS Act:
The appellant argued non-compliance with Sections 52A and 57 of the NDPS Act. The court found substantial compliance with Section 57, as the original information was taken to the superior officer, who made an endorsement. The court dismissed the argument that only sending a copy would suffice.

Conclusion:
The court dismissed the appeal, finding no force in the appellant's arguments. The conviction and sentence were upheld based on the recovery of heroin and the corroborative evidence provided by the prosecution witnesses.