2003 (2) TMI 506 - HC - Customs

Summary

Issues Involved:
1. Compliance with mandatory provisions of the NDPS Act.
2. Delay in filing the complaint.
3. Validity of the statements recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act.
4. Possession and knowledge of the contraband article.
5. Custody and handling of seized contraband.
6. Presence and testimony of witnesses.
7. Admissibility of evidence and corroboration.

Issue-wise Detailed Analysis:

1. Compliance with Mandatory Provisions of the NDPS Act:
The defense argued that the mandatory provisions under Sections 42, 55, and 57 of the NDPS Act were not complied with, which would render the conviction unsustainable. The prosecution countered that Section 42 was not applicable as the contraband was recovered from a public place (creek area), thus falling under Section 43. The court agreed with the prosecution, citing precedents that Section 42 applies to enclosed places, while Section 43 pertains to public places. Therefore, the contention regarding non-compliance with Section 42 was rejected.

2. Delay in Filing the Complaint:
The defense highlighted a delay of four months and ten days in filing the complaint, arguing it was unexplained and detrimental to the prosecution's case. The court found that the delay was justified due to the time taken for inquiry and gathering evidence by the Customs Department. The court held that the delay did not affect the validity of the complaint, as it was filed after completing the necessary procedural formalities.

3. Validity of Statements Recorded Under Section 67 of the NDPS Act and Section 108 of the Customs Act:
The defense contended that the statements recorded under these sections were not voluntary and were obtained under duress, thus inadmissible. The prosecution argued that the statements were voluntary, detailed, and consistent, providing specific information about the accused's involvement. The court found the statements to be genuine and voluntary, noting that the accused did not retract their statements and provided detailed information that could not have been fabricated by the officers. The court held that these statements were admissible and could form the basis for conviction.

4. Possession and Knowledge of the Contraband Article:
The defense argued that mere knowledge of the contraband does not establish conscious possession. The prosecution demonstrated that the accused were not only aware of the contraband but had previously transported it and were caught while attempting to do so again. The court concluded that the accused had both knowledge and conscious possession of the contraband, as evidenced by their detailed statements and the circumstances of their capture.

5. Custody and Handling of Seized Contraband:
The defense argued that the BSF had no right to hand over the contraband to the Customs Department and that it should have been kept in police custody as per Section 55 of the NDPS Act. The court held that under the provisions of Sections 36A, 42, 67, and 53 of the NDPS Act, the Customs Department was empowered to handle the contraband. The court found no illegality in the Customs Department retaining the seized goods and rejected the contention.

6. Presence and Testimony of Witnesses:
The defense questioned the presence of P.W.1 and the reliability of the witnesses, noting inconsistencies in their testimonies. The court found that P.W.1's presence was corroborated by other witnesses and that the inconsistencies were minor and did not affect the overall credibility of the prosecution's case. The court held that the witnesses' testimonies were reliable and supported the prosecution's narrative.

7. Admissibility of Evidence and Corroboration:
The defense argued that the evidence was not corroborated and that the panch witnesses had turned hostile. The court held that the panch witnesses had supported the prosecution's case regarding the preparation of the panchnama and the sealing of samples, despite not confirming the accused's presence. The court found that the statements of the accused, corroborated by other evidence, were sufficient to establish their guilt.

Conclusion:
The court dismissed the appeal, confirming the judgment and order of conviction and sentence passed by the trial court. The court found no infirmity in the trial court's judgment, holding that the prosecution had proved the accused's guilt beyond a reasonable doubt, and all contentions raised by the defense were without merit.