2016 (2) TMI 241 - HC - Indian Laws

Conviction for Carrying narcotics drug in their baggage while travelling from Jallandhar to Delhi - The charge for offence under Section 21(C) read with Section 8(C) as well as under Section 29 of NDPS Act was framed against both the accused to which they pleaded not guilty and claimed trial. In the instant case, the statement under Section 67 of the Act was written by the appellant - Lydia Ninglianting in her own handwriting while that of the appellant Sheikh Dilshad was recorded by PW8 Ms. Parminder Kaur. The appellants were produced before the Court on several dates and at no stage any complaint was made before the Special Judge of any torture or harassment in recording the confession. It is only when their statement under Section 313 Cr.PC was recorded that it was pleaded that no such statement was made by them and they were made to sign documents against their will. In the facts and circumstances of the case, it was rightly observed by learned Special Judge that the statement made by the appellants were voluntarily in nature and could form the basis of convition. Moreover, the conviction was based not only on the basis of statement under Section 67 of the Act but also ample corroborative evidence in the shape of testimony of intelligence officers coupled with the recovery effected from the bags. The impugned judgment and order on sentence does not suffer from any infirmity which warrants any interference.

Issues Involved:
1. Legality of the interception and search of the accused.
2. Validity of the statements recorded under Section 67 of the NDPS Act.
3. Non-examination of independent witnesses.
4. Alleged tampering of case property.
5. Contradictions in the testimonies of prosecution witnesses.
6. Applicability of precedents cited by the defense.

Issue-Wise Detailed Analysis:

1. Legality of the interception and search of the accused:
The prosecution's case began with an intelligence report received by Mr. Madan Singh, Intelligence Officer, DRI, that two women were carrying narcotics. This information was documented and approved for action. The accused were intercepted at ISBT, Kashmere Gate, and brought to the DRI office where their bags were searched. The search led to the recovery of heroin, which was confirmed by chemical analysis. The court found the interception and search to be lawful and in compliance with the NDPS Act.

2. Validity of the statements recorded under Section 67 of the NDPS Act:
The accused's statements under Section 67 were crucial to the prosecution's case. The court noted that these statements were detailed and voluntarily made, as there was no immediate retraction or complaint of coercion. The statements were considered admissible and reliable, reinforcing the guilt of the accused.

3. Non-examination of independent witnesses:
The defense argued that the non-examination of panch witnesses weakened the prosecution's case. The court referenced several precedents, stating that the absence of independent witnesses does not invalidate the testimony of official witnesses if their statements are credible and consistent. Summons were issued to the panch witnesses, but one could not be located, and no report was available for the other. The court found no fault with the prosecution's efforts in this regard.

4. Alleged tampering of case property:
The defense suggested possible tampering with the case property. However, the court found that the chain of custody was well-documented and intact. The contraband was sealed and signed by the officers and the accused, and there was no delay in sending the samples for analysis. The court concluded that there was no tampering with the case property.

5. Contradictions in the testimonies of prosecution witnesses:
The defense highlighted discrepancies in the testimonies of PW6 and PW8 regarding the timing of the statements recorded. The court dismissed these as minor inconsistencies that did not affect the core of the prosecution's case. It was noted that human memory fades over time, and such discrepancies were not significant enough to discredit the witnesses.

6. Applicability of precedents cited by the defense:
The defense cited several cases to argue for acquittal based on non-examination of independent witnesses and alleged tampering. The court distinguished these cases, noting that the current case had a robust chain of custody and credible testimony from official witnesses. The court emphasized that the statements under Section 67, corroborated by other evidence, were sufficient for conviction.

Conclusion:
The court upheld the conviction and sentence of ten years rigorous imprisonment and a fine of Rs. 1 lakh each for both accused. The appeals were dismissed, and the trial court's judgment was affirmed. The court found no merit in the arguments presented by the defense, emphasizing that the prosecution had sufficiently proven the guilt of the accused beyond reasonable doubt.

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