2015 (9) TMI 401 - HC - Customs

Offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Contention of learned counsel for the appellants that the statements before the Revenue Officials are not admissible in evidence, is untenable and unacceptable. - Furthermore, contention of learned counsel for the appellants that there are number of cuttings in statement suffered by Sukhchain Singh rendering it inadmissible, is not tenable - carrying approx. 5 Kg. of heroin in a hand bag - Held that - Prosecution has proved its case beyond reasonable doubt against both the appellants on the basis of clear and cogent evidence. There is no ground for setting aside their conviction and sentence imposed vide impugned judgment and order dated 04.09.2009 passed by learned Judge - Decided against the appellants.

Issues Involved:
1. Conviction under Section 21 of the NDPS Act.
2. Validity of the intelligence received and actions taken.
3. Admissibility of statements under Section 67 of the NDPS Act.
4. Role and identification of independent witnesses.
5. Alleged tampering of evidence.
6. Delay in apprehending the accused.
7. Conscious possession and complicity of Sukhchain Singh.

Detailed Analysis:

1. Conviction under Section 21 of the NDPS Act:
The appellants, Rajinder Singh and Sukhchain Singh, were convicted under Section 21 of the NDPS Act and sentenced to 12 years of rigorous imprisonment with a fine of Rs. 1,00,000/- each. The conviction was based on the recovery of 4.95 Kg of heroin from Rajinder Singh's hand-bag and the statements made by both appellants under Section 67 of the NDPS Act.

2. Validity of the intelligence received and actions taken:
The intelligence was received by PW1 Pushpdeep Singh on 22.07.2007 about two Sikh men carrying heroin. This information was documented and sent to the Senior Intelligence Officer, Ramesh Sharma, who directed surveillance and arrangements for apprehension. The appellants were identified and apprehended at Kathunangal Bus Stop based on this intelligence.

3. Admissibility of statements under Section 67 of the NDPS Act:
The appellants' statements under Section 67 of the NDPS Act were deemed admissible. The court referenced the Supreme Court ruling in Ram Singh v. Central Bureau of Narcotics, which held that officers under the NDPS Act are not police officers, making confessions to them admissible. The appellants did not retract their statements, which detailed their involvement in the narcotics trade.

4. Role and identification of independent witnesses:
The defense argued that the independent witness, Satnam Singh, was an impersonator. However, the prosecution proved that PW5 Satnam Singh, son of late Shri Tara Singh, was indeed the witness present during the recovery. The court held that even if independent witnesses are not present, the evidence of official witnesses can be relied upon if it is credible.

5. Alleged tampering of evidence:
The defense claimed potential tampering as the Chief Judicial Magistrate's signatures were not on the inventory. However, the court found no evidence of tampering. The case property was sealed and handled as per protocol, and the Chemical Examiner's report confirmed the integrity of the samples.

6. Delay in apprehending the accused:
The defense questioned the delay from 3.30 p.m. to 8.30 p.m. in apprehending the accused. The court dismissed this argument as speculative and not affecting the prosecution's case.

7. Conscious possession and complicity of Sukhchain Singh:
The defense argued that no narcotics were recovered from Sukhchain Singh. However, his statement under Section 67 revealed his awareness and participation in the crime. The court held that Sukhchain Singh was a conscious and active participant, making him equally culpable.

Conclusion:
The court found the prosecution had proven its case beyond reasonable doubt against both appellants. The appeal was dismissed, and the conviction and sentence were upheld.

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