2011 (12) TMI 352 - HC - Indian Laws

Smuggling of heroine - One of the samples was submitted to the Deputy Chief Chemist, New Custom House, Mumbai along with test memo dated 07.05.2002 and another sample was forwarded to the Forensic Science Laboratory, Kalina, Mumbai for its analysis. The report from both of them confirmed that the samples contained heroin - The provisions of Section 42 of the NDPS Act about recording of information were not strictly followed nor the Intelligence Officer Rosario was examined to prove that such intelligence was received in respect of the present accused appellant - The learned Counsel for the appellant contended that the Intelligence Officer Rosario was not examined by the prosecution, and therefore, it has failed to prove the receipt of the intelligence - The air ticket purchased by the accused from Kenya Airways with two boarding passes were recovered from her and the evidence also shows that the baggage claim tags were found affixed on her air ticket - Held that prosecution has proved satisfactorily and beyond any reasonable doubt that the accused was in possession of 5.400 kg. heroin kept in two separate polythene bags, which were concealed in the false bottom of the two suitcases which she had checked-in as her baggage with the Kenya Airways - it is clear that the accused was in possession of commercial quantity of heroin and she was trying to export the same. Therefore, she was rightly convicted of the offences under Section 21(c) and Section 23 r/w. Section 28 of the NDPS Act It is settled position of law that a confessional statement before the officers of NCB or Revenue Intelligence under Section 67 of the NDPS Act is not hit by Sections 25 or 26 of the Evidence Act and is admissible but it is necessary to scrutinize the same strictly though the Court may act upon it if it is satisfied about its absolute truth but at the same time it is held unsafe to rely on the confessional statement without some corroboration - learned Counsel for the appellant contends that the appellant is a woman and in jail since 2002. The learned trial Court has awarded rigorous imprisonment of one year in default to pay fine on each count - Appeal is partly allowed

Issues Involved:
1. Conviction under Section 21(c) of the NDPS Act.
2. Conviction under Section 23(c) read with Section 28 of the NDPS Act.
3. Conviction under Section 29 read with Section 21(c) of the NDPS Act.
4. Compliance with procedural requirements under Section 42 of the NDPS Act.
5. Validity and reliability of evidence, including the chain of custody of the contraband.
6. Admissibility and voluntariness of the accused's statement under Section 67 of the NDPS Act.

Detailed Analysis:

1. Conviction under Section 21(c) of the NDPS Act:
The appellant was convicted for possessing 5.400 kg of heroin, which was found concealed in the false bottom of two suitcases. The prosecution proved that the accused was in possession of the suitcases, as she identified and unlocked them with keys in her possession. The heroin content was confirmed to be 44%, amounting to 2.376 kg, which is a commercial quantity. The court upheld the conviction under Section 21(c) of the NDPS Act.

2. Conviction under Section 23(c) read with Section 28 of the NDPS Act:
The appellant was also convicted for attempting to export heroin out of India. The evidence showed that she had checked in the suitcases containing the heroin for a flight from Mumbai to Nairobi, with a further connection to Johannesburg. The court found sufficient evidence to uphold the conviction under Section 23(c) read with Section 28 of the NDPS Act.

3. Conviction under Section 29 read with Section 21(c) of the NDPS Act:
The appellant was convicted for abetment and conspiracy under Section 29 read with Section 21(c). However, the court found that since the appellant was found in possession of the contraband and was attempting to export it independently, there was no need to convict her separately for conspiracy, particularly when no other accused was involved. The court set aside the conviction under Section 29 read with Section 21(c).

4. Compliance with procedural requirements under Section 42 of the NDPS Act:
The defense argued that the provisions of Section 42 were not strictly followed, as the intelligence received was not properly recorded, and the Intelligence Officer Rosario was not examined. The court noted that Section 42 is applicable for searches in buildings, conveyances, or enclosed places, while Section 43 applies to public places like airports. The court found that the provisions of Section 42 were complied with, and the non-examination of Rosario was not fatal to the prosecution.

5. Validity and reliability of evidence, including the chain of custody of the contraband:
The defense raised several issues regarding the identification tags on the suitcases, the weight discrepancy, and the chain of custody of the samples. The court found that the identification tags were properly affixed and matched the baggage claim tags on the appellant's ticket. The keys to the suitcases were in the appellant's possession, and she unlocked them herself. The court also found that the samples were properly sealed and sent to the laboratories within the stipulated time, with no evidence of tampering. The court dismissed the defense's arguments on these points.

6. Admissibility and voluntariness of the accused's statement under Section 67 of the NDPS Act:
The defense argued that the appellant's statement under Section 67 was not voluntary, as she was in custody when it was recorded, and she had retracted it. The court noted that while a statement under Section 67 is admissible, it must be scrutinized closely and corroborated by other evidence. The court found that the statement was not necessary for proving possession and attempt to export heroin, as these were established by other evidence. However, the statement was not relied upon for proving conspiracy, leading to the setting aside of the conviction under Section 29 read with Section 21(c).

Conclusion:
The court upheld the appellant's conviction under Section 21(c) and Section 23 read with Section 28 of the NDPS Act, sentencing her to ten years of rigorous imprisonment and a fine of Rs. 1 lakh on each count, with a default sentence of six months' imprisonment on each count. The conviction under Section 29 read with Section 21(c) was set aside. The appeal was partly allowed, and the appellant's passport was ordered to be returned upon her release from jail.

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