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TMI Blog2016 (12) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1872. The reasoning of the trial court in coming to the conclusion that the accused were found in possession of the contraband and that they were trying to transport the same out of India without any legal permit and thereby convicting them under Sections 21(c) and 28 of the NDPS Act is found to be erroneous. As the material seized during the proceedings forms the basis of the investigation, the inability of the prosecution to prove the case, especially the genuineness of the search and seizure proceedings, beyond all reasonable doubt, vitiates the case of the prosecution. The accused are acquitted - appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL No.508 OF 2014 CONNECTED WITH CRIMINAL APPEAL No.308 OF 2014 - - - Dated:- 16-12-2016 - Anand Byrareddy, J. For the Petitioner : Shri Chandrashekar R.P., Advocate For the Respondent : Shri K.N.Mohan, Special Public Prosecutor ORDER JUDGMENT These appeals arise out of the same judgment and are disposed of together. The appeal in Crl. A. 508/2014 is filed by accused Marek Jaroslaw Lewandowicz and the appeal in Crl. A. 308/2014 is filed by accused Johann Tuchler. 2. It is the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d handling staff, two green colored soft luggage trolley bags with bag identification tag bearing Nos. EK507134 and EK507135 were said to have been retrieved. Mr. Marek is said to have identified the bags as belonging to him. The Complainant is then said to have checked the passport of the two others and followed the same routine in retrieving their luggage as well. The accused along with the independent witnesses were then said to have been taken to the AIU office situated on the first floor of the Airport by the Complainant. The Complainant is then said to have informed the accused that he would like to search the person of the accused, to which the accused denied having any contraband. The Complainant is then said to have explained to the accused that under the provisions of Section 50 of the NDPS Act, they had the right to be searched before a Gazetted Officer or a Magistrate available in Bangalore City, to which the accused are said to have agreed to be searched before a Gazetted Officer available in the airport. Hence on a request of the Complainant, one Mr. T.V. Ravi, the then Deputy Commissioner of Customs, Benagaluru International Airport (who was examined as PW2), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as said to have been sent to the Central Revenues Control Laboratory for testing). The Passport, Identity card bearing no. AG 15685, the air tickets bearing nos. ETKTNBR 1763806595645 and 1763806595646 and Boarding pass bearing seat no. 29A (Bangalore to Dubai) and 36A (Dubai to Newcastle) of the accused were said to have been retained by the Complainant. The search and seizure of material belonging to accused Mr. Marek was completed and a Mahazar was said to have been drawn by Mr. Louis, Inspector of Customs as per the deposition of independent witnesses at 17:00 hrs on 1.11.2009. The Complainant is then said to have begun a search of the checked in baggage belonging to Mr. Johann Tuchler bearing tag no. EK503844. It was a green colored soft luggage trolley bag. Upon opening the said bag, it was said to have been found that it contained within itself another green colored soft luggage trolley bag. After breaking up of the metal rods and cutting open the inner lining, a brownish-green colored substance wrapped in a transparent plastic sheet, further wrapped in a brown colored plastic sheet was said to be found. Then the Complainant is said to have opened the second bag (without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bangalore Customs Commissionerate, vide letter C.No. VIII/48/02/2009 CUS. AIU dated 2.11.2009, in compliance with Section 57 of the NDPS Act. They were then said to have been produced before the XXXIII Additional City Civil and Sessions Judge (Special court for NDPS Act, 1985 cases) Bangalore on 3.11.2009. The said Court vide order dated 3.11.2009, is said to have directed the Complainant to produce the accused before the jurisdictional magistrate. Therefore, the accused were said to have been produced before the Court of the Civil Judge (Jr. Dn.) and JMFC at Devanahalli. Thereafter, the Court is said to have remanded the accused to judicial custody on 3.11.2009 and they were said to have been handed over to the Central Prison, Bangalore on 3.11.2009. The sealed packets containing the test report bearing F. No. 1/ND/R/2009-CLD-1000(N)-1001(N) dated 25.11.2009 and the remnant samples said to have been received from the Joint Director, Central Revenues Control Laboratory, New Delhi, by the Complainant was said to have been handed over to the Court on 5.12.2009. The Court was said to have been requested to open the packets and retrieve the test report. The original test report is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any pass or permit to United Kingdom and thereby committed the offence under Section 23 read with Section 28 of NDPS Act? (c) That on the said date, time and place the accused attempted to export narcotic drug with the assistance of other accused and thereby abetted commission of the offence under NDPS Act and thereby committed the offence punishable under Section 29 of the NDPS Act? Point nos. 1(a) and (b) were answered in the affirmative and whereas point no. 1(c) was answered in the negative. Thereafter the accused were convicted and sentenced to undergo rigorous imprisonment for 10 years each, and to pay a fine of ₹ 1,00,000/- each, and in default to undergo simple imprisonment for 1 year each for the offences punishable under Sections 21(c) and 28 of NDPS Act. Both the substantial sentences were ordered to run concurrently. It is against this order of the court below, the present appeals have been filed on various grounds. 5. The learned counsel for appellants, Shri. Hashmath Pasha, would contend that there is discrepancy in the alleged receipt of the alert message from the Deputy Director of I I, NCB Headquarters, New Delhi, regarding the suspicion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as unable to prove as to how he had received the alleged alert message. Hence the trial court has gravely erred in accepting his evidence on the point that he has indeed received the alert message pertaining to the said offence by the accused. Further more, it is contended that the alleged alert message produced on record before this court and marked Ex. P1 is a photo copy of an original alert message if at all received by Mr. Bhattacharya, Commissioner of Customs, Bangalore from Deputy Director (I I), NCB Headquarters, New Delhi and hence should at best be considered as a secondary evidence. The counsel for the appellants however, would question the validity of the said alert message to be considered even as secondary evidence. Reliance is placed on the case of Smt J. Yashoda v. Smt K. Shobha Rani, AIR 2007 SC 1721, wherein it has been laid down that when certain documents in question were admittedly photo copies and when there was no possibility of the said documents being compared with the original, as the same were with another person, the conditions in Section 65(a) of the Indian Evidence Act, 1872 had not been satisfied and hence the documents could not be accepted as seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on. It is a fact which is also accepted by Mr. T.V. Ravi himself in his evidence, namely, that he has not signed on any other document or material apart from the seizure report or the Mahazar. But the independent witnesses have deposed in the Mahazar that T.V. Ravi has also affixed his signature on the materials seized. The Complainant in his evidence as PW3, has also stated that Mr. T.V. Ravi has affixed his signature on the packets of materials seized. It is contended that there are inconsistencies in the statements of the witnesses and the Officer who was allegedly present while the search and seizure was being conducted and the inference would be that Mr. T.V. Ravi was not a witness to the proceedings of search and seizure conducted by the Complainant. It is also admitted by Mr. T.V. Ravi that the screening and scanning of the seized checked in baggage belonging to the accused in the present case had been completed by the concerned personnel and nothing was informed to them about the presence of incriminating material in those bags. 7. It is contended that the evidence of Haribabu, Superintendent of Customs, HPU as PW4 is unreliable. He has stated that, as per instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontend that the accused were not in possession of the same. However, on considering the evidence placed on record regarding the seizure of contraband and the presence of panch witnesses, suspicion arises as to the genuineness of the said seizure. The prosecution had alleged that they had recovered M.Os. 9 and 10 i.e., the checked in baggage of the accused, from the pallet area with the assistance of the ground handling staff. The said bags were said to have been opened and checked in the presence of the panch witnesses only after the accused consented to it. It is to be noticed that the search and seizure was conducted at the AIU office in the first floor of the airport whereas the accused were apprehended in the International Departure Hall. PW2 Mr. T.V. Ravi is the Gazetted Officer who was allegedly present during the investigation. Though he has signed on the Mahazar, his signature is not to be found on any seized materials. This fact is in contrast to the witness statements made by PW3 and also the panch witnesses as deposed in the Mahazar. The non-examination of the independent witnesses, especially the large number of ground handling staff who would have been involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (c) Examine any person acquainted with the facts and circumstances of the case. It is contended that the above provision empowers an officer mentioned in Section 42 of NDPS Act to record the statement of any person who is acquainted with the facts and circumstances of the case. In support of his argument, the learned counsel for respondent has relied upon the decisions in the following cases: (a) M. Prabhulal v. Assistant Director, DRI, AIR 2003 SCW 4975; (b) Kanhaiyalal v. Union of India, AIR 2008 SC 1044; (c) A.K. Mehaboob v. Intelligence Officer, NCB, 2002 SCC (Cri.) 1035; (d) The Intelligence Officer, Bangalore and Ors. v. Arshad Saleem Khan and Ors., ILR 2004 KAR 3855; (e) Devendar Pal Singh v. State of N.C.T. of Delhi and Anr., AIR 2002 SC 1661; (f) Ravinder Singh @ Bittu v. State of Maharashtra, AIR 2002 SC 2242. The learned counsel for respondent contends that unlike statements made under Section 161 of CrPC, the ones made under Section 67 of the NDPS Act can be acted upon to convict the accused. It is pointed out that the above decisions consistently lay down that the voluntary statement of the accused signed by the accused and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by force and coercion. That the said voluntary statements have been retracted by the accused on 31.7.2010 and hence no reliance should be placed on the same. Further the accused in their statement recorded under Section 313 of CrPC, have stated that they never made any voluntary statement before the Investigation Officer and the same have been concocted. When there are severe inconsistencies in the statements made by the witnesses, materials placed on record and the manner in which the search and seizure was conducted, the Court cannot convict the accused solely on the basis of their voluntary statements. 13. This Court, in the light of the above contentions and on an examination of the record, is of the view that the statements of PW3 Superintendent of Customs, AIU, Bangalore, are unreliable and suspicious. PW3 has deposed that he has not personally received the alert message. He also states that neither the AIU nor the BPU received any information regarding the commission of offence. He states that he received a photo copy of the information from the Administrative Superintendent of AIU on 1.11.2009, upon which a team of Customs officers kept a watch on the passengers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he did not find anything incriminating on the person of any of the accused when he conducted a search under Section 50 of NDPS Act. The only thing that he is said to have found was their wallets which contained some foreign currency. He also admits that he did not find any keys with the accused at the time of the search. But he had stated that the accused had themselves opened the bags, using some keys. The counsel for the respondent has failed in proving as to where the accused got these keys to open their baggage, when nothing was found on their persons. 14. At the outset, though it seems that the Investigating Officer has complied with the procedure laid down under the mandatory provisions of Section 42 and Section 50 (by giving oral notice as alleged by the counsel for respondent) in conducting of the said search and seizure of the contraband from the bags of the accused, it is not proved by the prosecution beyond all reasonable doubt that the search and seizure was in fact conducted as per the mandate of the law. The accused were apprehended by the Investigating Officer in the International Departure Hall based on the alert message he received on 1.11.2009. It is uncl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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