2014 (4) TMI 100 - HC - Customs

Conviction and sentence movement of opium - Whether association of public witness mandatory Statement u/s 67 of NDPS Act in contrary to statement u/s 313 Cr.P.C. - Held that - Appellant in his statement u/s 313 Cr.P.C. denied the allegations against him, claimed to be innocent and claimed not be the owner of the truck though he knew driving - A perusal of the record would show that neither Mahender Singh was found residing at the Rangpuri address given by him nor was Neki Ram found at the Chhawla Village address - Obviously either the witnesses gave wrong address to NCB or they shifted from the place where they were earlier residing without intimating the new address to the NCB officials - The NCB cannot be held responsible for not producing them in the witness box - Moreover, since the recovery was effected at a public place in a day time, it was not mandatory to associate public witnesses with the search of the truck in which the contraband was found. Proof of recovery Proof beyond reasonable doubt Held that - The appellant in his statement u/s 313 Cr.P.C. did not even admit either that he was driving the aforesaid truck or that the said truck was stopped and seized by NCB officials at Kapashera border - The deposition of PW5 with respect to seizure of the opium from the truck being driven by the appellant finds full corroboration from PW6 Vikas Kumar in whose presence the seizure was effected - Therefore, the respondent NCB has proved beyond reasonable doubt that the appellant was driving the truck from which the substance in question was recovered by its officials, in the morning of 4.3.2006, at Kapashera border. Whether statement u/s 67 of the NDPS Act can be basis of conviction when it was denied u/s 313 Cr.P.C. Held that - The seizure of the drug from the truck being driven by the appellant finds corroboration from the statement which he made under Section 67 of the NDPS Act - Though the aforesaid statement was denied by him in his statement u/s 313 Cr.P.C., the statement has been duly proved by PW5 who had recorded the same, and this is not the case of the appellant that it is not signed by him - The appellant does not even claim that the aforesaid statement was obtained from him by subjecting him to any kind of duress or inducement - Therefore, the said confessional statement having been voluntarily made, can be safely used for convicting the appellant - Since the conviction of the appellant is not based solely upon the statement made by him u/s 67 of the NDPS Act, the same being only a piece of corroborative evidence, there is no merit in the contention that the conviction of the appellant could not have been based on the said statement. Whether the notice u/s 50 of the NDPS Act was meaningless since the appellant did not know reading or writing either English or Hindi Held that - A perusal of the said notice Ex.PW5/B would show that the it is a printed document in Hindi as well as English - It has come in evidence that the contents of the aforesaid notice were duly explained to the appellant and the meaning of the expression Gazetted Officer was also explained to him - There is no reason to disbelieve the deposition of NCB officials in this regard - Vide aforesaid notice, the appellant was clearly informed of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer - Therefore, there was due compliance with the requirement of Section 50 of the NDPS Act - No ground for interference with the conviction of the appellant and the fine imposed on him - It is, however, directed that in case of default of payment of fine, the appellant shall undergo SI for three (3) months as against one year awarded by the trial court - Appeal disposed of Decided against appellant.

Issues involved:
1. Examination of public witnesses.
2. Validity of the statement under Section 67 of the NDPS Act.
3. Compliance with Section 50 of the NDPS Act.
4. Proof of possession and knowledge of the narcotic substance.
5. Chain of custody and tampering of evidence.
6. Presumption of culpable mental state under Section 35 of the NDPS Act.
7. Presumption of offence under Section 54 of the NDPS Act.

Issue-wise detailed analysis:

1. Examination of public witnesses:
The appellant contended that neither of the public witnesses, Neki Ram and Mahender Singh, were examined to prove the alleged recovery of opium. The court noted that the addresses provided by these witnesses were not valid, and the NCB officials could not locate them. Since the recovery was effected in a public place during the daytime, it was not mandatory to associate public witnesses with the search. Thus, the non-examination of these witnesses did not invalidate the recovery process.

2. Validity of the statement under Section 67 of the NDPS Act:
The appellant argued that the statement made under Section 67 of the NDPS Act could not be the sole basis for conviction as it was denied in his statement under Section 313 Cr.P.C. The court held that the statement under Section 67 was corroborated by other evidence and was voluntarily made without any duress or inducement. Therefore, it could be used as corroborative evidence to convict the appellant.

3. Compliance with Section 50 of the NDPS Act:
The appellant claimed that the notice under Section 50 of the NDPS Act was meaningless as he was illiterate. The court observed that the notice was a printed document in Hindi and English, and its contents were duly explained to the appellant, including the meaning of "Gazetted Officer." The court found no reason to disbelieve the NCB officials' testimony and concluded that there was due compliance with Section 50 of the NDPS Act.

4. Proof of possession and knowledge of the narcotic substance:
The appellant denied driving the truck or being aware of the opium. The court noted that the NCB officials had no reason to falsely implicate the appellant, and the recovery of opium from the truck was corroborated by multiple witnesses. The court also emphasized that the appellant did not provide any explanation for the opium found in the truck. Therefore, the court concluded that the appellant was in possession of the opium and had knowledge of it.

5. Chain of custody and tampering of evidence:
The court examined the chain of custody and found that the seal used for the samples was properly documented and returned without any tampering. The samples were sent to CRCL with seals intact, and the analysis confirmed the presence of opium. The court ruled out any reasonable possibility of tampering with the samples before they were analyzed.

6. Presumption of culpable mental state under Section 35 of the NDPS Act:
The court referred to Section 35 of the NDPS Act, which presumes the existence of a culpable mental state unless proven otherwise. Since the appellant was found driving the truck with opium, the court presumed that he knew about the narcotic substance. The appellant did not present any evidence to rebut this presumption.

7. Presumption of offence under Section 54 of the NDPS Act:
Under Section 54 of the NDPS Act, the court can presume that the accused has committed an offence if he fails to account satisfactorily for the possession of any narcotic drug. The appellant did not provide any satisfactory explanation for the opium found in the truck. The court concluded that the appellant committed an offence under the NDPS Act.

Conclusion:
The court found no ground for interference with the appellant's conviction and the fine imposed. However, it directed that in case of default of payment of the fine, the appellant shall undergo SI for three months instead of one year. The appeal was disposed of accordingly, and a copy of the order was sent to the concerned Jail Superintendent for necessary action.

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