2011 (11) TMI 411 - HC - Customs

Conviction - Prosecution - Notice under Section 50 of NDPS as well as Section 120 of Customs Act was served upon the respondent/accused that he had an option to get the examination of his baggage and personal search conducted before a Gazetted Officer of Customs or a Magistrate - The bag was emptied of its content and the bottom portion of the bag was then cut opened and a white colour stitched cotton cloth belt with velcro having four partitions was detected, which was pricked with the help of a needle and white powder oozed out of the same, suspected to be some Narcotics substance - After sending the information to various authorities by the Assistant Commissioner Preventive on 9-7-2007 regarding the Heroin and arrest of the accused on 10-10-2007, the representative samples Mark E-1, F-1, G-1 and H-1 along with test memo in triplicate were deposited in CRCL by the Complainant along with forwarding letter duly signed by the ACS - It is further recorded that though non-examination of independent witnesses by itself does not become fatal to the prosecution. However, it has to be appreciated differently in the facts and circumstances of each case - the present case is concerned, as per the prosecution, notice U/s 50 NDPS Act was served upon the respondent/accused with the help of interpretor as the accused had language problem and was unable to understand the Hindi and English language - This issue has already decided in the case of Union of India v. Shah Alam and Anrs. reported in 2009 (6) TMI 926 - SUPREME COURT and held that before the recovery was effected from his bag, baggage and at the time when notice was served upon the respondents/accused, it was not known to PW5 that recovery would not be effected from his person but from his bag or baggage - It is also observed that since the Test memos were prepared on 10-10-2007 and the custom seal was in the custody of PW5, the samples Mark E1 to H1 were also in his custody and as such the tampering of the said samples cannot be ruled out - Appeals are dismissed

Issues Involved:

1. Challenge to the acquittal order.
2. Compliance with procedural safeguards under Section 50 of the NDPS Act.
3. Examination of independent witnesses.
4. Validity of the confessional statement under Section 67 of the NDPS Act.
5. Discrepancies in preparation and handling of Test Memos and samples.

Detailed Analysis:

1. Challenge to the Acquittal Order:

The petitioner challenged the impugned order dated 26-3-2011, whereby the Special Judge, NDPS, Dwarka Court, New Delhi, acquitted the respondent/accused from the charges under Sections 21, 23, and 28 of the NDPS Act. The petition was based on the argument that the trial court erred in acquitting the accused despite the recovery of contraband substances from his possession.

2. Compliance with Procedural Safeguards under Section 50 of the NDPS Act:

The trial court emphasized the importance of strict compliance with Section 50 of the NDPS Act, which provides the accused the right to be searched in the presence of a Gazetted Officer or a Magistrate. The prosecution failed to prove that the accused was properly informed of this right, especially since the accused did not understand Hindi or English. The interpreter, Burhan Ahmadi, who was supposed to explain the rights to the accused, was not examined, leading to a significant procedural lapse. The court referenced the Supreme Court's judgment in State of Punjab v. Baldev Singh, which mandates strict compliance with Section 50 to ensure the authenticity and credibility of the search and seizure process.

3. Examination of Independent Witnesses:

The prosecution did not examine the independent witnesses who were present during the search and seizure, including Burhan Ahmadi, who acted as an interpreter. The trial court noted that non-examination of these witnesses adversely affected the prosecution's case. The court held that while non-examination of independent witnesses is not always fatal, in this case, it was crucial due to the language barrier and the need for clear communication of the accused's rights.

4. Validity of the Confessional Statement under Section 67 of the NDPS Act:

The trial court found that the confessional statement of the accused recorded under Section 67 of the NDPS Act was weak evidence and required independent corroboration. The prosecution failed to corroborate the statement with other evidence. The court referenced the Supreme Court's judgment in Union of India v. Balmukand & Ors., which held that conviction should not be based solely on a confessional statement without independent corroboration.

5. Discrepancies in Preparation and Handling of Test Memos and Samples:

The trial court identified several discrepancies in the preparation and handling of Test Memos and samples. The Test Memos were not prepared at the time of sample drawal, and there were inconsistencies regarding the dates and the use of the customs seal. The court noted that the absence of proper documentation and handling raised doubts about the integrity of the samples tested by the CRCL. The court emphasized that these procedural lapses created a missing link in the chain of evidence, making it impossible to conclusively establish that the samples tested were the same as those recovered from the accused.

Conclusion:

The trial court acquitted the accused of all charges under Sections 21, 23, and 28 of the NDPS Act, citing non-compliance with mandatory procedural safeguards, failure to examine crucial witnesses, lack of independent corroboration of the confessional statement, and discrepancies in the handling of evidence. The High Court upheld the trial court's judgment, finding no discrepancy in the order and dismissing the appeal. The court ordered the immediate release of the respondents/accused if not required in any other case.

Order:

Both Crl. LP 275/2011 and Crl. LP 284/2011 were dismissed. The respondents/accused were ordered to be released forthwith, and a copy of the order was sent to the Jail Superintendent for compliance. No order as to costs.

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