1997 (8) TMI 538 - HC - Indian Laws

Summary

Issues Involved:
1. Non-compliance with Section 42 of the NDPS Act.
2. Applicability of Section 43 of the NDPS Act.
3. Mandatory nature of Section 57 of the NDPS Act.
4. Authorization of the Air Customs Officer.
5. Compliance with Section 55 of the NDPS Act.
6. Admissibility of the CFSL report.
7. Evaluation of evidence and retraction of the accused's statement.

Detailed Analysis:

1. Non-compliance with Section 42 of the NDPS Act:
The Trial Court acquitted the respondent on the ground of non-compliance with Section 42 of the NDPS Act, holding that the non-compliance vitiates the prosecution. The Trial Court concluded that the Customs counter at the International Airport is not a "public place," thus necessitating compliance with Section 42.

2. Applicability of Section 43 of the NDPS Act:
The High Court disagreed with the Trial Court's interpretation, stating that the Customs counter and related areas at the airport are "public places" under Section 43 of the Act. The Court emphasized that the definition of "public place" includes areas accessible to the public, even with restrictions. The Court ruled that Section 43, not Section 42, applies to the airport, making the Trial Court's reliance on Wrigley's case incorrect, especially since that judgment has been stayed by the Supreme Court.

3. Mandatory nature of Section 57 of the NDPS Act:
The respondent's counsel argued that Section 57 is mandatory, citing Supreme Court decisions. However, the High Court clarified that while the Supreme Court in Mohinder Kumar's case suggested that Section 57 is mandatory, this was based on a misinterpretation of Balbir Singh's case, which held Section 57 to be directory. The High Court reaffirmed that Section 57 is not mandatory but found that its provisions were complied with in this case.

4. Authorization of the Air Customs Officer:
The respondent contended that Utpal Mishra, the Air Customs Officer, was not duly authorized as there was no evidence he held the rank of Inspector or above. The High Court found this contention baseless, citing an Establishment Order that confirmed Mishra's rank as Inspector, thus validating his authority to conduct the search, seizure, and investigation.

5. Compliance with Section 55 of the NDPS Act:
The respondent argued non-compliance with Section 55, which requires the sample to be kept in the custody of the local police station. The High Court explained that Section 55 must be read with Section 53, which allows Customs officers to act as officers in charge of a police station. Therefore, the samples could be legally kept in the Customs Department's Malkhana. The Court found credible evidence that the samples were properly handled and sealed.

6. Admissibility of the CFSL report:
The respondent challenged the CFSL report, claiming it lacked details of the chemical analysis. The High Court dismissed this argument, noting that the report included necessary details and percentages to conclude that the seized substance was hashish. The Court also found no issue with the non-examination of the officers who conducted the analysis, as their work was supervised by a Chemical Examiner who testified credibly.

7. Evaluation of evidence and retraction of the accused's statement:
The High Court reviewed the evidence and found no material contradictions. The Court upheld the Trial Court's approach to the accused's retraction, noting it was belated and that the accused's statement was written in his own handwriting, acknowledging the warning about its potential use in court.

Conclusion:
The High Court set aside the Trial Court's judgment, convicting the respondent of attempting to illegally export 975 grams of hashish. The respondent was sentenced to ten years of rigorous imprisonment and fined one lakh rupees, with an additional one-year imprisonment for failure to pay the fine.