2013 (10) TMI 953 - HC - Customs

Guilty of the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - on search of the bags of appellant it was found that those contained 2.680 Kgs. of poppy straw powder packed in 2 bags of polythene - appellant contested that in the absence of corroboration from independent witnesses the evidence of only police officials should not have been given credence to - Held that - It is noticeable that the evidence of PW-7 has been supported by PW-5, as well as other witnesses. It has come in the evidence of PW7 that he had asked the passerby to be witnesses but none of them agreed and left without disclosing their names and addresses. On a careful perusal of their version nothing by which their evidence can be treated to be untrustworthy. On the contrary it is absolutely unimpeachable. As there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect therefore, the prosecution case cannot be doubted for non-examining the independent witnesses. Non-compliance of Section 50 of the NDPS Act - Held that - In the case at hand 2 bags of poppy straw powder weighing 2.680 Kgs. had been seized from two bags. It has not been seized from the person of the accused-appellant. It has been established by adducing cogent and reliable evidence that the bags belonged to the appellant. As relying on Madan Lal v. State of H.P. 2003 (8) TMI 474 - SUPREME COURT and State of H.P. v. Pawan Kumar 2004 (9) TMI 602 - SUPREME COURT applying the interpretation of the word search of person to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. No recovery was affected from the person of the accused and in fact the recovery was from the checked-in baggage of the accused, therefore, there was no requirement for compliance of Section 50 of NDPS Act. Non-examination of independent witnesses does not cast doubt on the prosecution case - no rule of thumb can be laid down to arrive at a conclusion as to what is the effect of non-examination of panch witnesses. Each case has its own facts - Following decision of Ram Swaroop Versus State (Govt. NCT) of Delhi 2013 (5) TMI 693 - SUPREME COURT and Gita Lama Tamang v. State of (G.N.C.T.) of Delhi 2006 (11) TMI 545 - DELHI HIGH COURT - Decided against assessee.

Issues Involved:
1. Language barrier and non-examination of interpreter.
2. Non-examination of one panch witness.
3. Credibility of the examined panch witness.
4. Retraction of the accused's statement.
5. Detention receipts filled by the complainant.
6. Compliance with Section 50 of the NDPS Act.
7. Investigation regarding the recovered Nokia mobile phone.

Detailed Analysis:

1. Language Barrier and Non-Examination of Interpreter:
The appellant contended that he was unaware of any language other than Persian and that the interpreter, who was crucial to the prosecution's case, was not examined. The court noted that the interpreter, Sayed Mohd. Ashraf Hofiyani, was not examined because he had been transferred to Kabul. However, the prosecution examined PW11 Rajesh Kumar, who confirmed that all documents were translated to the appellant in Persian. The court held that no prejudice was caused to the appellant as the proceedings were explained to him in a language he understood. The court referenced Hasan Imam Inamdar v. The State of Maharashtra and Ramaswamy v. State of M.P., but found them inapplicable as the prosecution in this case provided sufficient evidence that the appellant understood the proceedings.

2. Non-Examination of One Panch Witness:
The appellant argued that the non-examination of one panch witness, Shambujeet, cast doubt on the prosecution's case. The court held that the testimony of the other panch witness, Deepak Kumar, was sufficient and credible. The court referenced Ram Swaroop v. State (Govt. N.C.T.) of Delhi to support the view that non-examination of a panch witness does not necessarily discredit the prosecution's case if other evidence is reliable.

3. Credibility of the Examined Panch Witness:
The appellant challenged the credibility of PW10 Deepak Kumar, a panch witness. The court found his testimony reliable and corroborated by other evidence, including photographs and the testimony of the complainant and other witnesses. The court noted that there was no reason for the witness to falsely implicate the appellant.

4. Retraction of the Accused's Statement:
The appellant retracted his statement made under Section 67 of the NDPS Act, claiming it was not voluntary. The court observed that the retraction was made 26 days after the statement, indicating it was an afterthought. The court found the statement voluntary and truthful, containing details only the appellant could know. The court referenced Union of India v. Satrohan and other cases to support the admissibility of the statement.

5. Detention Receipts Filled by the Complainant:
The appellant argued that the detention receipts were filled by the complainant with the assistance of a colleague without permission. The court found this argument meritless, noting that the complainant's actions were corroborated by other witnesses and there was no ill-will against the appellant.

6. Compliance with Section 50 of the NDPS Act:
The appellant claimed non-compliance with Section 50 of the NDPS Act. The court held that Section 50 was not applicable as the recovery was made from the appellant's baggage, not his person. The court referenced State of H.P. v. Pawan Kumar and other cases to support this view.

7. Investigation Regarding the Recovered Nokia Mobile Phone:
The appellant argued that no further investigation was done regarding the Nokia mobile phone recovered from him. The court found that this did not affect the prosecution's case, as the primary evidence of drug possession was sufficient for conviction.

Conclusion:
The court found no merit in the appellant's arguments and upheld the conviction and sentence under Sections 21(c) and 23(c) of the NDPS Act. The appeal was dismissed.

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