2001 (6) TMI 825 - HC - Customs

Summary

Issues Involved:
1. Conviction under the N.D.P.S. Act.
2. Conviction under the Customs Act.
3. Compliance with Section 50 of the N.D.P.S. Act.
4. Compliance with Section 102 of the Customs Act.
5. Reliability of evidence and statements.
6. Alleged discrepancies in the prosecution's timeline.

Detailed Analysis:

1. Conviction under the N.D.P.S. Act:
The appellant was convicted and sentenced by the Special Judge for possessing and attempting to transport methaqualone (mandrax) tablets. The conviction was challenged on the grounds of non-compliance with mandatory provisions under Section 50 of the N.D.P.S. Act. The court noted that the appellant was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate, as required by Section 50. This non-compliance was deemed sufficient to quash the conviction under the N.D.P.S. Act, referencing the Supreme Court's rulings in State of Punjab v. Baldev Singh and subsequent cases.

2. Conviction under the Customs Act:
The appellant's conviction under the Customs Act was also challenged. The court observed that the N.C.B. officers' failure to comply with Section 50 of the N.D.P.S. Act cast doubt on the legitimacy of the search and seizure, impacting the Customs Act charges. Additionally, the court found discrepancies in the prosecution's timeline, particularly regarding the appellant's presence at the airport and the hotel bill showing a conflicting departure time.

3. Compliance with Section 50 of the N.D.P.S. Act:
The court emphasized that Section 50 is mandatory, and non-compliance creates suspicion about the search, seizure, and arrest. The evidence did not show that the appellant was informed of his right to be searched in the presence of a Gazetted Officer or Magistrate. This failure was critical in quashing the conviction under the N.D.P.S. Act.

4. Compliance with Section 102 of the Customs Act:
Section 102 of the Customs Act mandates that an officer must take the person to the nearest Gazetted Officer or Magistrate if requested. The court found that the appellant was not apprised of this right, making the search and seizure suspect. This non-compliance led to the quashing of the conviction under the Customs Act as well.

5. Reliability of Evidence and Statements:
The court scrutinized the evidence and found that the statements recorded under Section 67 of the N.D.P.S. Act and Section 108 of the Customs Act were not voluntary. The trial court had already noted that the statements were made under duress, and the appellant had complained of ill-treatment by N.C.B. officers. Consequently, these statements were deemed inadmissible.

6. Alleged Discrepancies in the Prosecution's Timeline:
The court noted a significant discrepancy in the prosecution's timeline. The hotel bill indicated that the appellant left the hotel at 3:05 a.m., conflicting with the claim that he was intercepted at the airport at 1:45 a.m. This inconsistency further undermined the prosecution's case.

Conclusion:
The appeal was allowed, and the convictions and sentences under both the N.D.P.S. Act and the Customs Act were quashed and set aside. The appellant was acquitted and ordered to be released immediately if not required in any other case. The court also directed the return of the appellant's travel documents.