2013 (2) TMI 11 - HC - Customs

Acquitted of the charges under Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - non-compliance of Section 50 of the NDPS Act, possession of alleged contraband being not in a conscious possession and that the case property was not secured properly by the prosecution - whether the prosecution has been able to prove that the contraband recovered was kept in a safe custody and the same was not tampered with - Held that - While the Investigating Officer was exhibiting the case property the learned defence counsel demonstrated that the steel container could be removed from the cloth pullanda without tampering with the seals on the paper slips and at the bottom. It is thus apparent that the case property was not secured properly and without tampering with the seals on the paper slip the case property could be removed from the cloth pulanda after opening the stitches. In a case of recovery of narcotic drug it is the paramount duty of the prosecution to prove beyond reasonable doubt that the case property allegedly recovered from the accused was kept in safe custody and no tampering was done therewith. Where the case property can easily be removed without tampering with the seals, the sacrosanct onus cast on the prosecution has not been discharged. Thus the learned Trial court committed no error in coming to the conclusion that the case property had not been secured properly. It is evident from the statement of the Respondent that he was given the two suit cases by Sukhjinder Singh a US citizen, known to the Respondent s family at the departure. Further the cross-examination of PW9 on this point is also relevant wherein the Investigating Officer admitted the suggestion that he did not verify the foreign address of the recipient of the bag at USA since he believed the statement of the accused recorded under Section 67 of the NDPS Act to the effect that the said bags were handed over to him by Sukhjinder Singh for delivery at USA and he was not aware of the contents of the same. Once the Investigating Officer was satisfied that the Respondent was not in the conscious possession of the contraband he ought to have made investigations qua Sukhjinder Singh. However, in this regard the Investigating Officer himself stated that he made no interrogation from Sukhjinder Singh nor tried to trace him. The case of prosecution in the present case is based only on the testimony of PW9 as the two panch witnesses PW3 Ashit Roy and PW12 and Himanshu have turned hostile. No doubt, conviction can be based solely on the testimony of the Investigating Officer as regards the recovery however, in the present case the testimony of PW9 the Investigating Officer is full of blemishes. Further PW11 in his examination-in-chief states that only Shri Serge Dhaliwal @ Sunny offered in the absence of the Respondent to carry one suit case of his grand daughter in case she had any excess baggage to take in flight to USA on 24th May, 2009. In any case PW11 had handed over only one bag and the second bag was of Mr. Sukhjinder Singh. In view of the deficiencies in the investigation carried out, not a fit case to convict the Respondent even for the possession of 81.1 grams of morphine. The Trial Court rightly did not raise the presumption under Sections 35 and 54 of the NDPS Act in view of the fact that the prosecution has failed to discharge its initial burden where after the presumption could be raised against the Respondent.

Summary

Issues Involved:
1. Non-compliance of Section 50 of the NDPS Act.
2. Conscious possession of the alleged contraband.
3. Proper securing of the case property by the prosecution.

Detailed Analysis:

1. Non-compliance of Section 50 of the NDPS Act:
The appellant contended that the trial court erred in acquitting the respondent on the grounds of non-compliance with Section 50 of the NDPS Act, arguing that compliance was not necessary as the recovery was from the baggage and not from personal search. The appellant cited precedents such as Ajmer Singh vs. State of Haryana and Khet Singh vs. Union of India to support this argument. The respondent, however, argued that since the personal search was conducted before the baggage search, Section 50 compliance was mandatory, citing Dilip vs. State of Madhya Pradesh and Kishan Chand vs. State of Haryana. The court concluded that since the recovery was from the baggage, non-compliance with Section 50 was not fatal to the prosecution's case.

2. Conscious possession of the alleged contraband:
The appellant argued that the respondent was in conscious possession of the contraband, supported by the testimony of PW11 and the respondent's own statements under Sections 108 of the Customs Act and 67 of the NDPS Act. The respondent countered that he was unaware of the contraband in the suitcases given to him by Sukhjinder Singh, as corroborated by the Investigating Officer (PW9) and the lack of evidence suggesting the respondent's knowledge of the contraband. The court found that the prosecution failed to prove beyond reasonable doubt that the respondent was in conscious possession of the contraband.

3. Proper securing of the case property by the prosecution:
The appellant asserted that the case property was properly secured, despite the defense demonstrating that the property could be removed from the cloth pullanda without tampering with the seals. The respondent highlighted this vulnerability, arguing that the case property was not properly secured. The court observed that the case property could indeed be removed without tampering with the seals, thereby failing to ensure its integrity. This failure was critical in undermining the prosecution's case.

Conclusion:
The court upheld the trial court's decision, emphasizing that the prosecution did not prove beyond reasonable doubt that the contraband was kept in safe custody without tampering. Additionally, the court noted deficiencies in the investigation, particularly the failure to investigate Sukhjinder Singh, who allegedly handed the suitcases to the respondent. Consequently, the appeal was dismissed, affirming the respondent's acquittal.