2008 (1) TMI 920 - HC - Customs

Summary

Issues Involved:
1. Authority of NCB to effect seizure and arrest.
2. Compliance with procedural requirements under the NDPS Act.
3. Credibility of witnesses and evidence.
4. Applicability of Section 50 of the NDPS Act.
5. Discrepancy in sample weight.
6. Timing of Test Memo preparation.
7. Reliance on the appellant's statement u/s 67 of the NDPS Act.

Summary:

1. Authority of NCB to effect seizure and arrest:
The appellant contended that the NCB lacked the authority to effect seizure and arrest without warrants or authorization. The High Court initially acquitted the appellant on this ground, but the Supreme Court reversed this decision, holding that the NCB, as a wing of the Department of Revenue, was empowered to act u/s 41, 42, and other provisions of the NDPS Act. The matter was remitted back for disposal on merits.

2. Compliance with procedural requirements under the NDPS Act:
The appellant argued non-compliance with Sections 50, 42, 52, and 57 of the Act. The court found that Section 50 was not applicable as the contraband was recovered from the car, not the appellant's person. The court also noted that the information received was recorded and forwarded to senior officers, and a report u/s 57 was sent to the Zonal Director. The case property was properly deposited, and samples were sealed and weighed on the spot.

3. Credibility of witnesses and evidence:
The appellant challenged the credibility of the Panchnama and the witnesses, who had turned hostile. The court observed that despite turning hostile, the witnesses admitted their signatures on the Panchnama and other documents. The court held that the testimony of hostile witnesses could still be relied upon if corroborated by other evidence. The recovery of heroin was also corroborated by the testimonies of PW4 and PW5, members of the raiding party.

4. Applicability of Section 50 of the NDPS Act:
The court reiterated that Section 50 applies only when contraband is found on the person of the accused. Since the heroin was recovered from the glove compartment of the appellant's car, Section 50 was not applicable.

5. Discrepancy in sample weight:
The appellant pointed out a discrepancy in the sample weight found by the forensic laboratory (4.6 gm instead of 5 gm). The court dismissed this argument, explaining that variations in weight are natural due to differences in the accuracy of balances used by the Investigating Officer and the forensic laboratory.

6. Timing of Test Memo preparation:
The appellant argued that the Test Memo was not filled at the spot but on the next day. The court held that there is no legal requirement for the Test Memo to be filled on the same day, and filling it on the subsequent day does not invalidate the case.

7. Reliance on the appellant's statement u/s 67 of the NDPS Act:
The appellant contended that his statement u/s 67 was recorded while he was in police custody and should not be relied upon. The court noted that the case against the appellant was proved independently of his statement u/s 67, and he was not convicted based solely on this statement.

Conclusion:
The court found no merit in the appeal and dismissed it, upholding the appellant's conviction and sentence.