2007 (12) TMI 465 - HC - Customs

Summary

Issues Involved:
1. Compliance with Section 55 of NDPS Act.
2. Preparation and handling of test memo.
3. Discrepancy in the weight of samples.
4. Credibility of panch witnesses.
5. Conviction based on conjectures and inconsistencies.
6. Statement under Section 67 of NDPS Act.

Summary:

1. Compliance with Section 55 of NDPS Act:
The appellant argued that there was no compliance with Section 55 of the NDPS Act as the samples were not kept in safe custody. The evidence showed that the samples were deposited in the malkhana on 31st March 1999, and there was no evidence of their custody between 17th November 1998 and 31st March 1999, raising the possibility of tampering. However, the court found that the case property was deposited in the Custom Warehouse on 17th November 1998 and later transferred to a new godown on 31st March 1999, with seals intact, thus dismissing the argument of tampering.

2. Preparation and Handling of Test Memo:
The appellant contended that the test memo was prepared on 18th November 1998, a day after the seizure, and the seal was collected back for this purpose, suggesting possible tampering. The court held that the preparation of the test memo on the next day did not invalidate the case as the samples were sealed on the spot and the seals were intact when received by CRCL. The court emphasized that no law mandates the test memo to be prepared immediately at the time of seizure.

3. Discrepancy in the Weight of Samples:
The appellant highlighted discrepancies in the weight of the samples sent to CRCL, which varied from 6.1 gm to 7.1 gm, whereas 5 gm samples were claimed to be sent. The court explained that variations in weight are natural due to differences in the accuracy of balances used by the Investigating Officer and CRCL. The court found no malafide intent in the weight discrepancies, considering them a sign of the case's genuineness.

4. Credibility of Panch Witnesses:
The appellant argued that the panch witness PW 5 did not fully support the prosecution case and had discrepancies in his testimony. The court found that the testimonies of PW 1 and PW 5 regarding the recovery of heroin were unassailed and credible. The court dismissed the argument that the witness's inability to recall irrelevant details affected his credibility.

5. Conviction Based on Conjectures and Inconsistencies:
The appellant claimed that the conviction was based on conjectures and inconsistencies in witness statements. The court found that the testimonies of PW 1 and PW 5 were consistent and credible, proving the recovery of heroin beyond reasonable doubt. The court rejected the argument of inconsistencies affecting the conviction.

6. Statement under Section 67 of NDPS Act:
The appellant's statement under Section 67 of the NDPS Act was not retracted during the trial. However, the court clarified that the conviction was not based on this statement but on the evidence of recovery and testing of heroin.

Conclusion:
The court found no infirmity in the judgment of the Trial Court and dismissed the appeal, upholding the conviction and sentence of the appellant.