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TMI Blog2011 (11) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... rrival Hall after crossing the green channel and was asked by the Custom Officers as to whether he was carrying any goods, to be declared to customs, but he replied that he was carrying only personal effects. Thereafter, he was specifically asked whether he was carrying any contraband goods, but he denied. Mr. Ganpat Singh, (ACO) was not satisfied with his reply and he called two independent witnesses to join and in their presence, respondent/accused was again asked whether he was carrying any goods or contraband goods to be declared to customs, but he claimed to be carrying only personal effects. Thereafter notice under Section 50 of NDPS as well as Section 120 of Customs Act was served upon the respondent/accused that he had an option to get the examination of his baggage and personal search conducted before a Gazetted Officer of Customs or a Magistrate. Since the respondent/accused did not know either Hindi or English Language, as such one Burham Ahmedi, an official from KAM Airlines, who knew language of the respondent, was asked to make him understand the contents of the notice. The said Burham Ahmedi explained to him the contents of the notice. He expressed that he had no obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the complainant to Sh. Sanjeev Jain, ACS on 9-10-2007. 9. After sending the information to various authorities by the Assistant Commissioner Preventive on 9-7-2007 regarding the Heroin and arrest of the accused on 10-10-2007, the representative samples Mark E-1, F-1, G-1 and H-1 along with test memo in triplicate were deposited in CRCL by the Complainant along with forwarding letter duly signed by the ACS. Vide test report F.No. 1/ND/R/2007/CLD - 493 to 496 (N) dated 21-11-2007 of CRCL, it was opined that on analysis the sample Mark E-1, F-1, G-1 and H-1 answered positive as 'Diacetylmorphine'. The remaining samples were again sent to CRCL on 15-2-2008 through Sh. Ashok Kumar (ACO) for determining the purity percentage. Fresh report dated 5-3-2008 was received in this regard from CRCL and from the same, the purity in sample Mark E-1, F-1, G-1 and H-1 was found to be as follows :- Mark Percentage DAM (Heroin) E1 37.6 F1 40.7 G1 39.7 H1 39.2 10. After completion, the case against the respondent 10. After completion, the case against the respondent/accused as filed under Section 21, 23 and 28 NDPS Act. On the basis of the material available on record char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act were served upon the respondent/accused. 14. Ld. Trial Judge has also recorded that the offence under NDPS Act is a grave one. Procedural safeguards provided to the accused under a statute require strict compliance. Section 50 NDPS Act provides an extremely valuable right to the concerned person/suspect to get his person searched in presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguards contained in Sec. 50 of NDPS Act, is intended to protect a person against false accusation and frivolous charges, as also to lend creditability to the search and seizure conducted by the empowered officer. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the search and seizure proceeding and it would also strengthen the prosecution case. It is the duty of the empowered officer to inform the concerned person/suspect of the existence of his right to have his search conducted before a Gazetted Officer or by a Magistrate, so as to enable him to avail of that right. The prosecution must at the trial establish that the empowered officer had conveyed the information to the concerned person o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required by him. 17. The Trial Judge has also referred the case of Vijaysinh Chandubha Jadeja v. State of Gujarat - 2010 (4) LRC 225 (SC) wherein it was held that : "The object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. The obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance." 18. So far as the present case is concerned, as per the prosecution, notice U/s 50 NDPS Act was served upon the respondent/accused with the help of interpretor Borhan Ahmadi as the accused had language problem and was unable to understand the Hindi and English language. PW5 testified in his chief examination that in the presence of panch witnesses he had disclosed to the accused that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s U/s 50 NDPS Act and even U/s 102 Customs Act properly. The endorsement of Borhan Ahmadi made on the notice Ex. PW5/B from point X to X that "Read over and explained in vernaculars to Mr. Mohd. Bagour who consented for search by any custom officer and signed in token of acceptance," itself shows that the accused had not been explained in any manner. It was his legal right to get his person or baggage searched in the presence of a Gazetted officer or a Magistrate, as in the notice U/s 50 NDPS Act it is not mentioned at all that it was the legal right of the accused. 20. Ld. Trial Judge has also recorded that even the statement of Borhan Ahmadi U/s 67 NDPS Act Ex. PW5/Q does not find mention the manner in which the notice U/s 50 NDPS Act was served upon the accused nor it finds mention that the accused was explained that it was his legal right to get his search conducted in the presence of a Magistrate or a Gazetted officer. 21. Further ld. Trial Judge has also observed that if the notice was served upon the accused by Borhan Ahmadi at the instance of PW5, then the reply of the notice should have been taken from the respondent/accused in his own handwriting which could h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Judge has recorded that notice Ex PW5/B served upon the respondents/accused was not in compliance of provisions of Section 50 of NDPS Act, as it was partial notice and as the respondents/accused had offered to be searched in the presence of a Gazetted Officer of a custom besides a Magistrate. The purpose behind Section 50(1) NDPS Act, is to avoid criticism of arbitrary and high handed action against authorised officer. It has to be borne in mind that a Gazetted officer belonging to the department which is effecting a seizure may have bias in favour of the department, whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Thus, associating a Gazetted Officer with the raiding party makes such officer impliedly interested in the success of the raid. 25. Admittedly, in the present case the notice under Section 50 of NDPS Act, served to respondent/accused and option was given to the accused that if he so desires his baggage and personal search could be conducted before the Magistrate or a Gazetted Officer of a Customs. 26. The Trial Judge has also relied upon a case of Kuldeep Singh v. NCB - 2000 (1) JCC Delhi 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed". "6. From the perusal of the conclusion arrived at by this court in Vijaysingh Chandubha Jadeja's case it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazette officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate". 31. The prosecution has also relied upon the statement of respondent/accused recorded under Section 67 of NDPS Act which is Ex. PW5/E on record. The prosecution has relied upon the statement of respondents/accused under Section 67 of NDPS Act, before the Trial Court which is Ex. PW5/C and before this Court. 32. The law is settled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recorded on 21st March, 2008 i.e., after more than five months of the alleged incident and there is no explanation on behalf of the prosecution as to why his statement was recorded with inordinate delay and at the same time non mentioning in his statement about fact that he had recorded the statement of accused U/s 67 NDPS Act after he was given questions by PW5 to be put to the respondent/accused, leads to the inference that no such statement was made by the accused. 37. In these circumstances, the Trial Court has recorded that it becomes immaterial whether the accused retracted from his such statement or not. At the same time the admission of the accused in the said statement about recovery of contraband from his possession becomes immaterial, particularly, in view of the fact that it is admitted by the prosecution that the accused did not know any other language except Dari and Farsi language and the said statement is in English language and it is not proved on record that it was made by the accused. 38. The Trial Judge has also recorded that there is no evidence on record except the bald testimony of PW5 that the contents of panchnama Ex. PW5/C were read over t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Lab Assistant, CRCL, or even the chemical examiner for comparing the same with the seals affixed on the sample parcel Mark E-1 to H-1. It is astonishing that in the report of the CRCL it is mentioned that the each sample packet was sealed with five red tape seals and impression of each seal affixed on each of the four sample packets tallies with the facsimile of seal as given on the Test Memo, whereas in fact there is no facsimile of the seal on the Test Memo. There is no explanation on behalf of the prosecution that in such circumstances as to with which seal impression, the seals which were found on sample envelopes were compared by the officials or the chemical examiner in the CRCL. It appears that observation to this effect in the Test Report was made in routine without application of mind and comparison of the seals. Thus a important link in the chain of the prosecution evidence is missing and it cannot be said conclusively that the samples which were examined in the CRCL and were opined to be containing diacetylmorphine were the true representative of the samples drawn from the recovered substance. 42. I note that ld. Trial Judge has also recorded that there is no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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