2011 (2) TMI 1376 - SC - Customs

Whether there is any infirmity in the link evidence merely because there was a delay of few days in sending the sample to the office of the Chemical Examiner? Whether merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated? Whether Section 50 of the NDPS Act would not be applicable?

Issues Involved:
1. False Implication and Lack of Independent Witnesses
2. Non-Consideration of Appellant's Version under Section 313 Cr.P.C.
3. Non-Compliance with Section 50 of the NDPS Act
4. Delay in Sending Sample for Chemical Examination
5. Admissibility of Consent Statement under Section 25 of the Indian Evidence Act, 1872
6. Inconsistencies in Prosecution Witnesses' Testimonies
7. Pre-preparation and Validity of Police Actions

Issue-wise Detailed Analysis:

1. False Implication and Lack of Independent Witnesses:
The appellant claimed false implication, arguing the incident occurred in a densely populated area with no independent witnesses. The court rejected this, stating that the appellant's odd behavior upon seeing the police justified suspicion. The police's inability to secure independent witnesses was explained by the reluctance of villagers to get involved, which the court found reasonable and not indicative of false implication.

2. Non-Consideration of Appellant's Version under Section 313 Cr.P.C.:
The appellant argued that his version under Section 313 Cr.P.C. was ignored, particularly the testimony of DW1, Ex-Sarpanch Narang Singh, who claimed the police dug up the appellant's house on an earlier date without finding anything incriminating. The court found DW1's testimony unreliable due to the delay in his appearance and lack of any written complaints to authorities, thus rejecting the appellant's claim.

3. Non-Compliance with Section 50 of the NDPS Act:
The appellant contended non-compliance with Section 50, which mandates offering the option of being searched before a Gazetted Officer or Magistrate. The court found that the appellant was given this option, as evidenced by his signed consent statement and testimonies of PW4 and PW5. Additionally, the court noted that Section 50 applies only to body searches, not to searches of containers, which was the case here.

4. Delay in Sending Sample for Chemical Examination:
The appellant highlighted a 12-day delay in sending the sample for chemical examination. The court deemed this delay non-prejudicial, citing sufficient independent evidence proving the integrity of the sample. The Chemical Examiner's report confirmed the seals were intact, and the court referenced precedent cases where similar delays were not considered fatal to the prosecution's case.

5. Admissibility of Consent Statement under Section 25 of the Indian Evidence Act, 1872:
The appellant argued that his consent statement was inadmissible under Section 25 of the Indian Evidence Act, which bars confessions made to police officers. The court clarified that the consent statement was not used as a confession but merely indicated the appellant's willingness to be searched, thus not falling under the bar of Section 25.

6. Inconsistencies in Prosecution Witnesses' Testimonies:
The appellant pointed out inconsistencies between PW3 and PW4's testimonies. The court did not find these discrepancies significant enough to undermine the prosecution's case, given the overall coherence and corroboration of the evidence presented.

7. Pre-preparation and Validity of Police Actions:
The appellant questioned the police's preparedness and the lack of explanation for their presence at the scene. The court dismissed this, emphasizing the appellant's suspicious behavior and the police's reasonable actions based on the circumstances.

Conclusion:
The Supreme Court upheld the concurrent findings of the trial court and the High Court, affirming the appellant's conviction under Section 18 of the NDPS Act. The court found no merit in the appellant's arguments, emphasizing the reliability of the prosecution's evidence and the lack of any miscarriage of justice. The appeal was dismissed.

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