2011 (3) TMI 1384 - HC - Indian Laws

Search and seizure - correctness of the judgment and order of conviction and sentence both, of the appellant/accused - By the impugned judgment and order the appellant has been held guilty and convicted for the offences punishable under section 21 and 29 of the Narcotics and Psychotropic Substances Act, 1985 - evidence or information recorded under section 67 of the NDPS Act cannot be substituted for seizure evidence which is the basis of charge of possession. It can be considered only for corroboration provided evidence of search and seizure is free from doubt - Held that - seizure evidence of checked-in baggages is not free from doubt and therefore, accused would be entitled to benefit of doubt, trial court heavily placed reliance on the statement recorded under section 67 of the NDPS Act irrespective of the fact that there are certain shortcomings and lacunae in the prosecution evidence and therefore, conviction of the appellant cannot sustain in law and Appeal deserves to be allowed, Appeal is allowed accordingly

Issues Involved:
1. Legitimacy of the seizure evidence.
2. Voluntariness and admissibility of the confessional statement under Section 67 of the NDPS Act.
3. Discrepancies in the number of checked-in baggages.
4. Compliance with procedural safeguards under the NDPS Act.

Issue-wise Detailed Analysis:

1. Legitimacy of the Seizure Evidence:
The appellant was intercepted at Chhatrapati Sahar International Airport, Mumbai, on suspicion of carrying contraband heroin. The prosecution claimed that 2.5 kgs of heroin were found in a diplomat suitcase checked-in by the appellant. The defense argued that the diplomat suitcase did not belong to the appellant, and the seizure evidence was fabricated. The court noted discrepancies in the number of checked-in baggages and the absence of personal belongings in the seized baggage, casting doubt on the legitimacy of the seizure evidence.

2. Voluntariness and Admissibility of the Confessional Statement under Section 67 of the NDPS Act:
The defense contended that the confessional statement recorded under Section 67 of the NDPS Act was not made voluntarily. The trial court had relied heavily on this statement for conviction, despite the appellant retracting it immediately after arrest. The court observed that there was no evidence to prove the voluntariness of the statement, and without corroboration from reliable seizure evidence, the statement could not be the sole basis for conviction.

3. Discrepancies in the Number of Checked-in Baggages:
The defense highlighted that the appellant was only allowed to carry two checked-in baggages weighing 20 kgs, as per airline regulations, while the prosecution claimed he had three checked-in baggages. The court found overwriting on the baggage claim tags and noted that the appellant had not paid for excess baggage. This discrepancy further weakened the prosecution's case regarding the diplomat suitcase.

4. Compliance with Procedural Safeguards under the NDPS Act:
The defense argued that the appellant was not informed of his rights under Section 50 of the NDPS Act before the search and seizure. The court emphasized the importance of procedural safeguards and found that the prosecution failed to establish that the appellant was duly informed of his rights, adding to the procedural lapses in the case.

Conclusion:
The court found significant shortcomings and lacunae in the prosecution's evidence, including the doubtful seizure evidence and the lack of voluntariness in the confessional statement. The reliance on the statement under Section 67 of the NDPS Act, without corroborative seizure evidence, was deemed insufficient for conviction. Consequently, the court quashed the judgment and order of conviction and sentence, allowing the appeal and directing the appellant's immediate release and return of his travel documents.

Order:
The impugned judgment and order of conviction and sentence dated 4th December 2004 under Sections 21 and 29 of the NDPS Act against the appellant by the Special Judge, Greater Mumbai, in NDPS Special Case No.78 of 2002, is hereby quashed and set aside. The appellant shall be set at liberty forthwith if not required in any other case. The accused shall be entitled to receive back his travel documents, passport, etc., seized in this case. The appeal is allowed accordingly.

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