1993 (12) TMI 223 - HC - Customs

Summary

Issues Involved:
1. Connection of the appellant with the baggage containing heroin.
2. Non-compliance with mandatory provisions of Sections 50 and 57 of the N.D.P.S. Act.
3. Voluntariness and admissibility of the statement recorded under Section 67 of the N.D.P.S. Act.
4. Handling and analysis of the sample by the Chemical Examiner.
5. Non-examination of the person who delivered the sample to the Chemical Examiner.
6. Non-production of the key of the suitcase.
7. Reliability of witness testimonies.

Detailed Analysis:

1. Connection of the appellant with the baggage containing heroin:
The main contention raised by the appellant's counsel was that the prosecution failed to establish any connection of the appellant with the baggage from which 180 grams of heroin was allegedly recovered. The prosecution relied on the baggage tag and the counterfoil to connect the appellant with the suitcase. The court found that the baggage tag and the counterfoil matched and were attached to the appellant's air ticket. The court concluded that the suitcase belonged to the appellant based on the evidence and his own statement under Section 67 of the N.D.P.S. Act.

2. Non-compliance with mandatory provisions of Sections 50 and 57 of the N.D.P.S. Act:
The appellant argued that there was non-compliance with Sections 50 and 57 of the N.D.P.S. Act. Section 50 pertains to the right of the person being searched to be taken before a Gazetted Officer or Magistrate. The court held that Section 50 was not applicable as the search was of the baggage and not of the person. Regarding Section 57, the court found that a report was immediately sent to the superior officer, indicating due compliance.

3. Voluntariness and admissibility of the statement recorded under Section 67 of the N.D.P.S. Act:
The appellant claimed that his statement under Section 67 was obtained under torture and coercion. The court noted that the statement was retracted only after the appellant engaged a lawyer, and no mention of coercion was made in earlier applications. The court held that the statement was made voluntarily and was admissible in evidence.

4. Handling and analysis of the sample by the Chemical Examiner:
The appellant's counsel pointed out discrepancies and cuttings in the dates on the Chemical Examiner's report. The court found that the Chemical Examiner and the Chemical Assistant satisfactorily explained the cuttings and changes in dates. The court concluded that the sample was properly handled and analyzed, and the report was reliable.

5. Non-examination of the person who delivered the sample to the Chemical Examiner:
The appellant argued that the person who delivered the sample to the Chemical Examiner was not produced as a witness. The court held that this did not affect the case as the Chemical Examiner confirmed that the samples were received with seals intact.

6. Non-production of the key of the suitcase:
The appellant contended that the non-production of the key of the suitcase was fatal to the prosecution's case. The court dismissed this argument, stating that the confessional statement and the evidence of public witnesses were sufficient to establish the connection between the appellant and the suitcase.

7. Reliability of witness testimonies:
The appellant's counsel argued that one of the public witnesses did not support the prosecution's case. The court found that the testimony of the other public witness and the Intelligence Officer, along with the appellant's voluntary statement, were sufficient to support the prosecution's case.

Conclusion:
The court found no reasonable doubt that the appellant was in possession of 180 grams of heroin, which was recovered from his baggage. The court held that the appellant failed to account for his possession of the narcotic drug and confirmed the conviction and sentences passed by the Trial Court. The appeal was dismissed.