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2015 (6) TMI 701 - HC - CustomsChallenge to acquittal of the Respondent under offence under Sections 22 and 23 of the Narcotics Drugs & Psychotropic Substances Act, 1985 - Held that - when a passenger, boarding an international flight presents a ticket at the airlines counter, his baggage is weighed and a baggage tag is issued which is then affixed either on the ticket or on the boarding pass. The passenger has to physically present himself at the counter with the baggage he wishes to check in. In many airports the baggage is also x-rayed before it is checked in. The passenger s details are verified by examining his or her passport and then making sure that the baggage he wishes to check in is within the permissible weight. The baggage tag and its counterfoil is generated on computer with the name of the passenger, the weight of the baggage and the flight details printed on it. The tag is affixed on the baggage and the counterfoil either on the ticket or the boarding pass. It is well-nigh impossible for a computer-generated baggage tag to be got issued in the name of a passenger who is not himself carrying the baggage. It is inconceivable that some other person got a baggage checked in or got a baggage tag in the name of the Respondent and got its counterfoil affixed on the Respondent s boarding pass or ticket which he somehow did not notice. The baggage tag and its counterfoil constitute evidence of conscious possession of the baggage by the Respondent and therefore, assume significance. Under Section 54 (a) of the NDPS Act, when a person fails to account satisfactorily for being in possession of a narcotic or psychotropic substance, a presumption can be drawn, unless the contrary is proved, that he has committed an offence under the NDPS Act in respect of such substance. If the clothes and personal belongings found in the bag were women‟s clothing as stated by the Respondent in reply to question No.8 in his statement under Section 313 Cr PC, clearly the defence counsel would have noticed it and got a question recorded in that regard in the cross-examination of the witness - The evidence of PW-9 is trustworthy and consistent and has been corroborated by PW-11, the IO. The difference in the time of completion of proceedings as spoken by PW-9 (till 12 midnight) and PW-11 (till 4 am.) cannot by itself be taken to have diluted the credibility of their testimonies. - trial Court committed a manifest error in disbelieving the prosecution evidence, and also overlooking critical pieces of the evidence of the prosecution in concluding that it had not been able to prove the Respondent s conscious possession of the psychotropic substance. In the considered view of the Court, the prosecution evidence proves that fact beyond reasonable doubt. Even if in the present case the NCB officials were not in a position to explain to the Respondent the contents of the notice under Section 50 NDPS, on account of his inability to understand English and the inability to arrange for an interpreter at the airport, an adverse inference ought not to be drawn against the NCB since the contraband was not found from the person but from his checked-in luggage. The evidence on record does not persuade the Court to conclude, as the trial Court has done, that the officers had deposed falsely in that regard. Such a conclusion was not warranted in the facts and circumstances of the case. There is no evidence whatsoever regarding the tampering of the parcels or the samples sent for testing. There is nothing to show that the procedure for preserving and sending the samples for testing was not complied with. On the question of mixing of the substance, the trial Court appears to have overlooked the specific answer given by PW-11 in his cross-examination on 6th September 2011 Prosecution has been able to prove beyond reasonable doubt that it was the Respondent who had checked in his black trolley bag from which the psychotropic substance was recovered and that he was in conscious possession thereof. The prosecution has been able to prove that what was being carried by the Respondent by way of export from India to place outside India was a commercial quantity of a prohibited psychotropic substance, thus clearly attracting the offences under Sections 22 and 23 of the NDPS Act. - Court accordingly sets aside the impugned judgment of the trial Court and convicts the Respondent for the offences under Sections 22 (c) and 23 (c) of the NDPS Act. Quantum of sentence - Held that - Under Section 22 (c) NDPS Act, the minimum sentence for a person who is found in possession of a commercial quantity of a psychotropic substance (in this case Meth) is ten years rigorous imprisonment ( RI‟) with fine not less than ₹ 1 lakh. It is likewise for the offence under Section 23 (c) NDPS Act. Consequently, for each of the offences under Sections 22(c) and 23(c) of the NDPS Act, this Court sentences the Respondent to undergo ten years RI with a fine of ₹ 1 lakh and in default to undergo simple imprisonment for three months. Both the sentences shall run concurrently. - Decided in favour of Revenue.
Issues Involved:
1. Connection of the checked-in baggage with the Respondent. 2. Non-examination of key witness Manoj Gupta. 3. Credibility of the evidence of PW-9. 4. Compliance with Section 50 of the NDPS Act. 5. Sending of samples to CRCL for testing. Issue-wise Detailed Analysis: 1. Connection of the Checked-in Baggage with the Respondent: The Court examined whether the Respondent had checked in any baggage. The Respondent denied checking in any baggage, but the NCB claimed he had checked in a black trolley bag containing Methamphetamine. The evidence included the disembarkation card, customs declaration form, and a computer-generated baggage tag bearing the Respondent's name and flight details, which tallied with the counterfoil on his boarding pass or ticket. The Court found it inconceivable that someone else could have checked in the baggage in the Respondent's name without his knowledge. The baggage tag and its counterfoil constituted evidence of conscious possession by the Respondent. Under Section 54(a) of the NDPS Act, a presumption can be drawn that the Respondent committed an offence unless proven otherwise. The Respondent failed to provide a valid explanation for the counterfoil of the baggage tag found in his possession. The Court concluded that the trial Court erred in holding that there was no evidence connecting the checked-in baggage with the Respondent. 2. Non-examination of Key Witness Manoj Gupta: The trial Court drew an adverse inference against the prosecution due to the non-examination of Manoj Gupta, the ground duty official who helped retrieve the baggage. Despite persistent efforts, Manoj Gupta could not be traced. The trial Court should not have drawn an adverse inference, especially when the evidence of PW-9, corroborated by PWs 7 and 11, was available. Additionally, Manoj Gupta's statement under Section 67 of the NDPS Act was recorded and proved by Inspector Vikas Kumar (PW-10). The trial Court failed to consider this evidence. 3. Credibility of the Evidence of PW-9: The trial Court incorrectly based its decision on the evidence of PW-7 and PW-11, overlooking the testimony of PW-9, an independent panch witness. PW-9 confirmed the retrieval of the baggage in his presence and the subsequent recovery of the contraband. His testimony remained unshaken during cross-examination. The trial Court did not adequately address PW-9's evidence, which corroborated the prosecution's case. The Court found PW-9's evidence trustworthy and consistent, corroborated by PW-11, the IO. The trial Court's failure to consider this evidence was a manifest error. 4. Compliance with Section 50 of the NDPS Act: The trial Court questioned the compliance with Section 50 of the NDPS Act. However, the Supreme Court has held that non-compliance with Section 50 is not fatal if the contraband is recovered from a suitcase or conveyance, not from the person. In this case, the contraband was found in the checked-in luggage, not on the Respondent's person. The Court concluded that an adverse inference should not be drawn against the NCB for the alleged non-compliance with Section 50. 5. Sending of Samples to CRCL for Testing: The trial Court highlighted discrepancies regarding the date the samples were sent to CRCL for analysis. Despite inaccuracies in witness statements, the documents, including the test memo and CRCL's endorsement, indicated that the samples were received on 13th October 2008. The forwarding letter dated 13th August 2008 was clarified as a typographical error. The Court found no evidence of tampering with the samples and concluded that the trial Court erred in doubting the prosecution's evidence regarding the analysis of the substance. Conclusion: The Court concluded that the prosecution proved beyond reasonable doubt that the Respondent checked in the black trolley bag containing Methamphetamine and was in conscious possession thereof. The Respondent was convicted under Sections 22(c) and 23(c) of the NDPS Act. Sentence: The Respondent was sentenced to ten years rigorous imprisonment with a fine of Rs. 1 lakh for each offence under Sections 22(c) and 23(c) of the NDPS Act, with sentences to run concurrently. The Respondent's bail bond was canceled, and he was ordered to be taken into custody to serve the remaining sentence. The appeal was allowed, and the trial court's judgment was set aside.
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