2015 (9) TMI 670 - HC - Customs

Conviction u/s 21(c) of NDPS Act and under Section 14 of Foreigners Act - Non compliance with Section 50 - Held that - Recovery of heroine was not effected from the person of the appellant but from the handbag carried by him, hence the prosecution was not under an obligation to serve a notice under Section 50 of NDPS Act on the accused. - PW4/A under Section 50 of NDPS Act shows that the accused has been duly informed about his legal right to get his search conducted before a Gazetted Officer or Magistrate and in the reply which is in his own handwriting and duly signed by him, he has refused to get his search conducted in the presence of a Gazetted Officer or Magistrate. - it can be safely held that compliance of Section 50 NDPS Act has been done by the raiding party before conducting the search. So on this score, the appellant cannot avail any benefit. Link witnesses examined by the prosecution as well as the FSL report duly proved that the samples which were taken were sent to FSL, were examined there and further that at the time of examination, the seals were found intact and tallied with the specimen seal. - Thus, from the evidence adduced by the prosecution, the recovery of heroine weighing 1400 grams with purity of 80.1 percent was proved beyond any reasonable doubt. The arrest of the appellant, who is a Nigerian national, in a case under NDPS Act was duly informed to the concerned Embassy through proper channel. It has also been proved by the prosecution that visa of the appellant had already expired much prior to his arrest in this case. Thus the conclusion arrived at by learned Special Judge (NDPS) convicting the appellant under Section 21(c) of NDPS Act and under Section 14 of Foreigners Act is based on sound reasoning and proper appreciation of the testimony of prosecution witnesses. The impugned order cannot be termed as perverse or suffering from any illegality as all the necessary requirements have been duly complied with by the police in this case and the recovery of contraband i.e. heroine weighing 1400 grams which is the commercial quantity (purity level 80.1 percent) stands duly proved. - Decided against the petitioner.

Summary

Issues Involved:
1. Conviction under Section 21(c) NDPS Act for possession of commercial quantity of heroin.
2. Conviction under Section 14 Foreigners Act for overstaying in India after visa expiry.
3. Compliance with Section 50 of NDPS Act.
4. Credibility of police testimony and non-joining of public witnesses.
5. Allegations of tampering with case property.
6. Discrepancies in evidence and procedural lapses.

Issue-wise Detailed Analysis:

1. Conviction under Section 21(c) NDPS Act for possession of commercial quantity of heroin:
The appellant, a Nigerian national, was apprehended based on secret information and found in possession of 1400 grams of heroin with a purity of 80.1 percent. The court found the testimony of police officials credible despite the non-joining of public witnesses. The heroin was recovered from a bag carried by the appellant, and the recovery process was deemed reliable. The court ruled out the possibility of planting the case property due to the significant quantity and purity of the heroin.

2. Conviction under Section 14 Foreigners Act for overstaying in India after visa expiry:
The appellant's visa had expired on 13.03.2008, and he was arrested on 17.04.2009. The court confirmed that the appellant's stay in India was unauthorized, leading to his conviction under Section 14 of the Foreigners Act. The Nigerian Embassy was informed, and the appellant's unauthorized stay was verified through proper channels.

3. Compliance with Section 50 of NDPS Act:
The appellant argued that there was non-compliance with Section 50 of the NDPS Act, which mandates informing the accused of their right to be searched before a Gazetted Officer or Magistrate. However, the court held that since the recovery was from the appellant's bag and not his person, strict compliance with Section 50 was not required. The court cited precedents, including the State of Himachal Pradesh vs. Pawan Kumar, to support this view.

4. Credibility of police testimony and non-joining of public witnesses:
The appellant contended that the absence of public witnesses cast doubt on the police's testimony. The court acknowledged the general reluctance of public witnesses to participate but held that the testimony of police officials could be relied upon if found credible. The court referred to Ajmer Singh vs. Haryana, emphasizing that official witnesses' testimony can form the basis of conviction if believable.

5. Allegations of tampering with case property:
The appellant alleged tampering with the case property, citing discrepancies in the weight of the samples. The court found no evidence of tampering, noting that the difference in weight was due to the polythene in which the samples were kept. The FSL report confirmed that the seals were intact and matched the specimen seals. The court rejected the tampering allegations, referring to State by CBI vs. Dilbagh.

6. Discrepancies in evidence and procedural lapses:
The appellant pointed out various discrepancies, including overwriting on the arrest memo and inconsistencies in the testimony of police witnesses. The court addressed these issues, explaining that the overwriting was due to the arrest occurring just after midnight and was duly initialed. The court also clarified that the reference to Ct. Ved Prakash instead of Ct. Ved Pal was a slip of the tongue. The court found that the procedural lapses did not undermine the overall credibility of the prosecution's case.

Conclusion:
The court upheld the appellant's conviction under Section 21(c) NDPS Act and Section 14 Foreigners Act, finding the prosecution's evidence credible and the procedural requirements duly complied with. The appeal was dismissed, and the trial court's order was affirmed.