2020 (3) TMI 903 - HC - Indian Laws

Smuggling - Hashish - contraband item - retraction of statements - offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 - HELD THAT - Undisputedly, according to the evidence, recovery of Hashish (Charas) found from the rucksack which was in possession of the accused person and which is evident from the inventory and seizure list as well as from the panchnama both were duly signed by independent witnesses and the employee of Modern Travels as also by the accused persons. PW3 being the Gazetted Officer in his crossexamination stated that he was present at the time of search and seizure, such being the evidence on record, possession of the said Hashish (charas) from the custody of the accused person is beyond doubt. That apart, there were no retraction of the said fact by the appellant during the trial including examination under Section 313 of the Code of Criminal Procedure when the accused was examined. The allegation of non-seizure from the custody of the person of the accused/appellant is an afterthought and therefore, cannot be relied on. According to Section 35 of the Act, the Court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove contrary. The presumption though rebuttable but during examination under Section 313 neither any plea has been taken by the accused nor any prayer has been made to rebut the presumption under the said provision. Conviction in the present case is not based only on the confessional statement made by the accused under Section 67. His confessional statement is coupled with too many other grounds on which conviction is based - The element of threat or coercion is totally absent in the present case even no such allegation has been made and this is partly evident that he never attempted to retract this statement made under Section 67 of the act. In this case, there is no room for the appellant to advance an argument that he is an innocent person or that he has been falsely implicated in the instant proceeding. The recovered hashish (charas), from the rucksack apparently was in possession of the accused persons as evident from the inventory and seizure list and the Panchnama as well duly signed by the independent witnesses and employee of Modern Travels and after all signed by the accused persons - If this factum is taken into consideration the fact that the accused persons as well as the officers of the raiding team read with the voluntary statement of admission made by the accused persons under Section 67 of the NDPS Act together with the fact that there had been no retraction statement by them, the reasonable conclusion would be to hold the accused/appellant guilty. The order of conviction and sentence under challenge are thus confirmed - Appeal dismissed.

Summary

Issues Involved:
1. Validity of the complainant's authority to lodge the complaint.
2. Compliance with Section 50 of the NDPS Act.
3. Absence of independent witnesses.
4. Reliance on confessional statements under Section 67 of the NDPS Act.
5. Corroborative value of the prosecution's evidence.
6. Compliance with Section 52A of the NDPS Act.

Detailed Analysis:

1. Validity of the Complainant's Authority:
The appellant argued that the complainant, Saikat Saha, joined the Directorate just before lodging the complaint, which was impermissible. The respondent countered by presenting the pay register, showing that Saikat Saha had been a Senior Intelligence Officer since April 1, 2008. The court verified this and dismissed the appellant's argument, confirming the complainant's authority.

2. Compliance with Section 50 of the NDPS Act:
The appellant contended non-compliance with Section 50, arguing that the search should have been conducted in the presence of a Magistrate. The prosecution demonstrated that the accused were given an option to be searched before a Gazetted Officer, which they chose, and the search was conducted accordingly. The court held that compliance with Section 50 was sufficient as the accused were searched in the presence of a Gazetted Officer, aligning with the legal requirements. The court referenced multiple Supreme Court decisions, including Ajmer Singh v. State of Haryana, to support this interpretation.

3. Absence of Independent Witnesses:
The appellant argued that the absence of independent witnesses invalidated the prosecution's case. The court noted that the search and seizure were conducted in the presence of independent witnesses and an employee of Modern Travels, who signed the Panchnama. The court cited Ajmer Singh v. State of Haryana, affirming that official witnesses' testimony could be sufficient for conviction if found credible and reliable.

4. Reliance on Confessional Statements under Section 67 of the NDPS Act:
The appellant claimed that the conviction was improperly based on confessional statements under Section 67. The court clarified that the conviction was not solely based on these statements but was supported by substantial evidence, including the seizure of contraband and the voluntary nature of the confessions. The court referenced Kanhaiyalal v. Union of India, emphasizing that statements under Section 67 are admissible unless made under coercion, which was not alleged in this case.

5. Corroborative Value of the Prosecution's Evidence:
The appellant argued that the prosecution's evidence lacked corroborative value. The court found that the evidence, including the seizure list, Panchnama, and chemical examination reports, was consistent and credible. The court noted that the accused did not retract their confessions or challenge the evidence during the trial, reinforcing the prosecution's case.

6. Compliance with Section 52A of the NDPS Act:
The appellant contended non-compliance with Section 52A regarding the disposal of seized narcotic drugs. The court held that the seized drugs were presented in court, samples were sent for chemical examination, and the remaining drugs were destroyed per legal procedures. The court referenced Union of India v. Mohanlal, affirming that minor procedural lapses in Section 52A do not vitiate the trial if the seized goods are in safe custody and the overall procedure is substantially followed.

Conclusion:
The court confirmed the order of conviction and sentence, dismissing the appeal. It held that the prosecution had sufficiently complied with the legal requirements, and the evidence presented was credible and reliable. The court directed the records to be sent to the trial court and allowed for urgent certified copies if requested.