2007 (1) TMI 560 - HC - Customs

Summary

Issues Involved:
1. Conscious possession of narcotic substances.
2. Timing and validity of FIR registration.
3. Compliance with sampling procedures.
4. Examination of independent witnesses and handling of case property.
5. Impact of non-examination of a key witness after charge amendment.
6. Defense of alibi and physical incapacity.

Summary:

1. Conscious Possession of Narcotic Substances:
The appellants were charged u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possessing 900 Kgs of poppy straw without a valid permit. The prosecution established that the appellants were in conscious possession of the contraband. The truck, owned and driven by appellant Mohan Singh, carried the poppy straw, and the appellants failed to provide any explanation for their presence with the contraband. The court held that both possession and conscious possession were established based on the evidence.

2. Timing and Validity of FIR Registration:
The appellants argued that the FIR was registered prior to the recovery, creating doubt about the prosecution's case. The court found this contention meritless, noting that the FIR number was added later with different ink, which did not vitiate the FIR's validity or the conviction.

3. Compliance with Sampling Procedures:
The appellants contended that only one sample was taken from each bag, violating the Act's provisions. The court found sufficient evidence that two samples of 100 grams each were taken from each bag, as testified by multiple witnesses, thus complying with the Act.

4. Examination of Independent Witnesses and Handling of Case Property:
The appellants argued that the non-examination of independent witness Pritam Singh and the delay in sending samples to the FSL raised doubts about the case. The court held that the non-examination of Pritam Singh did not affect the case's integrity, as the seizure was corroborated by other witnesses. The court also found that the samples were kept in safe custody, and the delay in sending them to the FSL did not prejudice the case.

5. Impact of Non-Examination of a Key Witness After Charge Amendment:
The appellants contended that DSP Balwinder Singh Romana's non-examination after the charge amendment prejudiced their case. The court found this contention meritless, noting that the amendment was formal and did not affect the evidence of ownership and control of the truck by Mohan Singh.

6. Defense of Alibi and Physical Incapacity:
The appellants claimed alibi and physical incapacity, arguing that Suraj Bhan had a plastered leg. The court found that Suraj Bhan was not so disabled as to be unable to travel in the truck, and no credible evidence supported the alibi. The defense was thus rejected.

Conclusion:
Both Criminal Appeals No. 244-DB and 296-DB of 2004 were dismissed as being without merit.