2002 (1) TMI 83 - HC - Customs

Summary

Issues Involved:
1. Export of ganja concealed in Senna Leaves bags.
2. Admissibility and validity of confession statements.
3. Non-examination of packers.
4. Search and seizure without warrant.
5. Retracted confessions and their impact on the case.

Issue-wise Detailed Analysis:

1. Export of ganja concealed in Senna Leaves bags:
The prosecution alleged that the accused exported 6 kilos of ganja concealed in Senna Leaves bags to Hong Kong. The Hong Kong Customs Authorities discovered the ganja, reported it to the Indian High Commission, which in turn informed the Narcotics Control Bureau (NCB) in India. The NCB conducted an investigation, during which the first accused (A1) confessed to the crime. The trial court acquitted the accused, but the High Court found this acquittal to be based on irrelevant and perverse reasoning. The High Court noted that documentary evidence and confessions supported the prosecution's case, establishing that A1 exported the consignment containing ganja.

2. Admissibility and validity of confession statements:
The trial court deemed the confessions inadmissible and invalid as they were retracted. However, the High Court highlighted that under Section 67 of the NDPS Act and Section 108 of the Customs Act, such confessions are admissible. The Supreme Court's ruling in Raj Kumar Karwal v. Union of India supported this view. The High Court emphasized that the confessions were detailed, voluntary, and corroborated by other evidence, making them valid for conviction despite retraction.

3. Non-examination of packers:
The trial court criticized the prosecution for not examining the packers of the Senna Leaves. The High Court found this reasoning invalid, noting that one packer had given a statement to the officers, explaining that the packing process did not reveal the contents. The High Court concluded that examining the packers in court would not have added significant value, given the existing statements and evidence.

4. Search and seizure without warrant:
The trial court raised concerns about the search and seizure conducted without a warrant. The High Court did not address this issue directly in the detailed analysis, focusing instead on the overall validity of the evidence and confessions obtained during the investigation.

5. Retracted confessions and their impact on the case:
The trial court considered the retracted confessions invalid. The High Court disagreed, referencing the Supreme Court's ruling in K.I. Pavunny v. Assistant Collector, which stated that retracted confessions could still form the basis for conviction if corroborated by other evidence. The High Court found that A1's confession was detailed, voluntary, and corroborated by other materials, including the initial recovery by Hong Kong officials and subsequent searches and seizures in India.

Conclusion:
The High Court set aside the acquittal of A1, convicting him under Sections 20 and 23 read with 29 of the NDPS Act. The case was remitted back to the trial court to determine the appropriate sentence for A1. The acquittal of A2 was confirmed, as the evidence against him was insufficient to prove his knowledge of the concealed ganja. The Principal District Judge, who originally tried the case, was directed to handle the sentencing of A1, as per the unamended provisions of Section 36D of the NDPS Act.