2022 (8) TMI 116 - HC - Customs

Smuggling - contraband / prohibited goods - Ketamine or not - admissibility of statements - Section 50 of the NDPS Act - HELD THAT - It is seen that in this case, the entire happenings taken place in the Customs Restricted Area. The appellant was travelling to Malaysia, not in dispute. P.W.2 is an Air Intelligence Officer and his job is to keep watch over the passengers movement in the Customs area and in case of any suspicion, question the passenger, verify his credentials for passengers travel. In this case, finding the appellant moving in suspicious manner after getting clearance from the immigration counter, PW1 questioned the appellant. Since the appellant found nervous, not behaving normally, creating doubt, taken to P.W.1, the Superintendent of Customs. As regards whether Section 52A of the NDPS Act, and Standing Orders 1/88 and 1/89 are followed, it is to be seen that Section 52-A is for the purpose of disposal of seized Narcotic drugs and psychotropic substances, in the event of the contraband seized is to be disposed of, in view of its vulnerability of theft, substitution, constraints of proper storage space, and any other consideration, Section 52A to be followed, wherein the inventory of such contraband with details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances to be recorded. By preparing an inventory certifying the correctness and the process to be done in the presence of Magistrate, photographs of the seized drugs to be taken. The contraband tested using Test Kit from each of the 4 packets, which tested positive, weighed around 975 gms., not of bulk quantity, not in lots. Hence, 4 packets made into one homogenized and there after, specimen samples drawn. Likewise, instructions 1.7, is for number of samples to be drawn. The Instructions is that when the package / containers seized together in are of identical size and weight and contents can be harmonized provided each package give identical results on colour test by U.N. Kit - As per the instructions 1.8 numbering of packages and as per instruction 1.9 the seizing officer to prepare the Panchanama on the spot in presence of the accused and witness and required to put his signature on the samples, which is followed. Thus, the Standing Order 1/88 is followed. The accused in his statement / Ex.P2 during 313 question and at the time of question of sentence, consistently state that he hails from poor family, having aged parents to be taken care and he is only a carrier, his situation forced to take the offer of said Thameem. Admittedly, in this case, the said Thameem neither arrested, nor shown as accused, what follow up steps taken is not known, whether Thameen house was kept under surveillance. his mobile tracked, nothing is known. Admittedly, appellant is only a carrier, hails from a poor background. The conviction recorded u/s 8(c) r/w 21(c) 28 of NDPS and sentence imposed on the appellant to undergo 10 years R.I. is confirmed. The order for payment of fine of Rs.1,00,000/- for each of the offence upheld, but an order that in default of payment, the appellant shall undergo R.I., for 2 years is reduced to R.I. for 1 month. The default sentence for all offence modified to one month alone - the criminal appeal allowed in part.

Issues Involved:
1. Compliance with Section 50(1) of the NDPS Act.
2. Compliance with Section 42(1) of the NDPS Act.
3. Role and actions of the Seizure Officer and Investigating Officer.
4. Chain of custody and handling of seized contraband.
5. Delay in forwarding samples for chemical analysis.
6. Compliance with Standing Orders 1/88 and 1/89.
7. Status of the accused as a mere carrier and mitigating circumstances.

Issue-wise Detailed Analysis:

1. Compliance with Section 50(1) of the NDPS Act:
The appellant contended that the mandatory provision under Section 50(1) was not substantially followed. The Seizure Officer, P.W.2, conducted a search on the appellant's body and sandals without proper compliance. The court noted that although P.W.1 was a Gazetted Officer, mere presence does not fulfill the requirement of Section 50. The prosecution argued that the search and seizure were conducted in the presence of witnesses and the appellant was informed about his rights, thus complying with Section 50.

2. Compliance with Section 42(1) of the NDPS Act:
The appellant argued that the mandatory provision of Section 42(1) was not complied with, as the case was wrongly projected as a chance recovery to avoid statutory obligations. The prosecution maintained that it was indeed a chance recovery, as the appellant was intercepted in a suspicious manner after emigration clearance. The court found that the interception and subsequent actions were justified under the circumstances.

3. Role and Actions of the Seizure Officer and Investigating Officer:
P.W.2 acted as both the Seizure Officer and Investigating Officer, raising concerns about the impartiality of the investigation. The court noted that the non-examination of key officers like J.Sivakumar and S.Elango was a significant lapse. However, the court found that the chain of custody and the process followed by P.W.2 were sufficiently documented and corroborated by other witnesses.

4. Chain of Custody and Handling of Seized Contraband:
The appellant questioned the integrity of the chain of custody, citing delays and improper handling of the contraband. The court acknowledged the delay in forwarding the samples for chemical analysis but found that the chain of custody was maintained through proper documentation and witness testimonies. The contraband was produced before the remanding Magistrate and kept in the Customs Warehouse as per protocol.

5. Delay in Forwarding Samples for Chemical Analysis:
There was a delay of nearly 1.5 months in forwarding the samples to the laboratory, which the appellant argued was contrary to Standing Orders. The court noted this delay but ruled that it did not significantly impact the integrity of the evidence. The Chemical Examiner's report confirmed the presence of Ketamine, a psychotropic substance, thus upholding the prosecution's case.

6. Compliance with Standing Orders 1/88 and 1/89:
The court examined the compliance with Standing Orders 1/88 and 1/89, which provide guidelines for the drawal, storage, testing, and disposal of samples. The court found that the procedures for sampling, sealing, and storage were substantially followed, despite some procedural lapses. The seized contraband was not bulk in nature, and the guidelines were adhered to in drawing and testing the samples.

7. Status of the Accused as a Mere Carrier and Mitigating Circumstances:
The appellant consistently maintained that he was a mere carrier, forced by circumstances to accept the offer from one Thameem. The court referred to the Supreme Court's judgment in Shantilal Vs. State of M.P., considering the appellant's poor background and first-time offense. The court upheld the conviction but reduced the default sentence for non-payment of the fine, acknowledging the mitigating circumstances.

Conclusion:
The Criminal Appeal was partly allowed. The conviction under Sections 8(c) r/w 21(c) & 28 of the NDPS Act was confirmed, along with the sentence of 10 years R.I. The fine of Rs.1,00,000/- for each offense was upheld, but the default sentence was reduced to R.I. for 1 month. The appellant was to be released if he had already undergone the substantive sentence and default sentence, unless required for any other offense.

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