2015 (10) TMI 330 - HC - Customs

Offence under NDPS ACT - secret information. - validity of evidence oral and documentary - From a cavity behind the tail light of the TATA Sumo Vehicle, Heroin/diacetylmorphine was recovered which after weighing was found to be 7.896 kg. Accused was apprehended and arrested. - Held that - in this statement the appellant had stated that he used to park the vehicle in the night at the residence of his employer (PW-11) and used to pick it up the next morning which he had done on the fateful day as well. His further version is that Shera had hired this vehicle. It is not his defense that Shera had hired this vehicle from his employer Pragat Singh. If Shera had hired this vehicle from the appellant and the appellant having picked up the vehicle in the morning from the house of his owner, the further defense of the appellant that he was not aware that the contraband had been fixed in a part of the tail light of the vehicle is contrary to the rest of the defense adopted by him as the vehicle was admittedly never in possession of Shera and thus Shera would not have had a chance at any point of time to implant the contraband in the vehicle. The defense of the appellant appears to be dishonest and an afterthought. After the samples and contraband had been received by Lakhi Ram (PW-3) who was working as inspector in Valuable Godown (through PW-7) entries in the Register were made after tallying the seal impression which was affixed on case property with the facsimile of the seal appearing in the test memo. These endorsements were proved as Ex.PW-3/A and Ex.PW-3/B. The sample tested positive for diacetylmorphine. The report of the CRCL Ex.PW-6/B had also checked the purity percentage of diacetylmorphine was found to be between 79-88% of the total 7.896 kg which was above the commercial quantity (250 grams). - On no count does the impugned judgment calls for any interference. The sentence imposed upon the appellant is also the minimum. - Decided against the appellant.

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Validity and reliability of the secret information.
3. Credibility of the prosecution witnesses.
4. Legitimacy of the appellant's statement under Section 67 of the NDPS Act.
5. Ownership and control of the vehicle used for transporting contraband.
6. Defense claims regarding the actual ownership of the contraband.
7. Proper handling and testing of the seized contraband.

Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The appellant argued that the mandate of Section 50 of the NDPS Act was not complied with, as he was not produced before a Gazetted Officer or a Magistrate. However, the court noted that the recovery was made from a cavity behind the tail light of the vehicle, not from the person of the appellant. Citing the Supreme Court judgments in *State of Punjab v. Baldev Singh* and *State of H.P. v. Pawan Kumar*, it was held that Section 50 applies only to personal searches and not to searches of vehicles or premises.

2. Validity and Reliability of the Secret Information:
The secret information received on 02.01.2009 was reduced into writing (Ex.PW-2/A) and discussed with senior officers, complying with Sections 42(1) and 42(2) of the NDPS Act. The court dismissed the argument that a separate DD entry was required, noting that the information was already documented in Ex.PW-2/A.

3. Credibility of the Prosecution Witnesses:
The prosecution presented 13 witnesses, including members of the raiding party and public witnesses. The court found their testimonies credible and consistent. PW-4, a Tax Assistant, confirmed that the appellant was informed of his rights under Section 50, which he declined. PW-7, the Investigating Officer, detailed the entire operation, including the chase and recovery of the contraband. PW-9, a public witness, corroborated the recovery process.

4. Legitimacy of the Appellant's Statement under Section 67 of the NDPS Act:
The appellant's statement under Section 67, where he admitted his involvement, was retracted after 40 days. The court noted that the statement was made based on personal knowledge and was retracted only after legal advice. The statement was used for corroboration, not as substantive evidence, which the court found appropriate.

5. Ownership and Control of the Vehicle:
The vehicle was registered in the name of PW-10 and was in the custody of PW-11, who had given it to the appellant for use as a taxi. The court noted that the appellant disobeyed instructions not to take the vehicle out of TaranTaaran and was apprehended in Delhi. Compliance under Section 57 of the NDPS Act was confirmed through Ex.PW-1/D.

6. Defense Claims Regarding the Actual Ownership of the Contraband:
The appellant claimed that the contraband belonged to Shera, a co-passenger who escaped. However, this defense was not supported during the cross-examination of witnesses and emerged only during the appellant's statement under Section 313 Cr.P.C. The court found this defense to be an afterthought and dishonest, noting inconsistencies in the appellant's narrative.

7. Proper Handling and Testing of the Seized Contraband:
The seized contraband was properly handled and tested. PW-3 confirmed the entries in the Register and the tallying of seal impressions. The CRCL report (Ex.PW-6/B) confirmed the presence of diacetylmorphine with a purity of 79-88%, well above the commercial quantity threshold.

Conclusion:
The court found no infirmity in the judgment and upheld the appellant's conviction and sentence. The appeal was dismissed as it lacked merit, affirming the minimum sentence imposed.

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