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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 en route to the United Kingdom via Dubai and that they might be carrying 15 Kgs of contraband (Hashish) each. It was after receiving this alert message, that a team of Customs officers are said to have kept a watch on passengers traveling to the United Kingdom, at the Bangalore International Airport, Devanahalli, from 27.10.2009 onwards. On 1.11.2009, the Superintendent of Customs, Air Intelligence Unit, Bangalore International Airport, Shri R. Ramamurthy, the Complainant, along with two independent witnesses and his team of officers is said to have intercepted three foreigners, after they had completed their immigration formalities and were proceeding for security check, before boarding an Emirates flight - EK 567, on the first floor of the Bangalore International Airport, at 16:00 hrs. He is said to have explained to them that he was a Superintendent of Customs attached to the Bangalore International Airport and based on information, he had reason to believe that they had certain contraband with them and that he would like to examine the same as he was empowered to do so under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... let containing 630 dollars and 165 pounds, which was allowed to be retained by them. Also, the Complainant did not find any contraband in the cabin baggage held by the accused. The Complainant is then said to have begun a search of the checked in baggage belonging to Mr. Marek bearing tag nos. EK507134 and EK507135. Both were green coloured soft luggage trolley bags. He is said to have opened the first bag which contained pillows and clothes. Since the bag, even after being emptied, was found to be heavier than usual, the Complainant is said to have expressed his desire to cut open the bottom of the bag to check for any hidden material. Thereafter, he is said to have broken the metal rods and cut open the inner lining which revealed a false bottom, uncovering a brownish- green packet of a gum like substance wrapped in transparent plastic sheet. The second bag was also said to have been opened and it was found to contain a soft toy and some clothes. Upon breaking the metal rods and cutting open the inner lining, a similar brownish-green packet of a gum like substance wrapped in a transparent plastic sheet was said to have been found. The Complainant is then said to have tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Departure hall of the airport and the substance in baggage with tag no. EK503844 weighed 8.34 Kgs and the substance in baggage without an identification tag weighed 6.17 Kgs, totally weighing 14.51 Kgs. The Complainant is then said to have seized the material along with both the checked in baggage belonging to Johann Tuchler under the provisions of NDPS Act. Thereafter, the Complainant is said to have drawn 3 samples weighing 25 grams each of the substance suspected to be contraband for further analysis and testing (the same was said to have been sent to the Central Revenues Control Laboratory for testing). The Passport, bearing no. N 1053486, the air ticket bearing no. ETKT 1763806502688 and Boarding pass bearing seat no. 26K (Bangalore to Dubai) and 26K (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. Johann Tuchler was completed at 18:00 hrs and the Mahazar was drawn by Mr. Mahesh Kumar H.K., Inspector of Customs as per the deposition of the independent witnesses at 19:00 hrs on 1.11.2009. The Complainant is then said to have proceeded to arrest the accused Mr. Marek and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shivalaya Delux, Mr. Ganapathi Manjunath Naik to acknowledge the presence of accused in Bangalore was said to have been recorded on 2.11.2009 by the Superintendent of Customs, HPU, Bangalore, under Section 108 of the Customs Act, 1962. He is also said to have handed over photo stat copies of the guest arrival register showing the stay of Mr. Marek and Mr. Tuchler in Room Nos. 107 and 207 respectively, form C, advance receipts said to have been issued by both the accused and the final bill. 3. On the basis of the material placed before the Court, it was presumed that the accused persons were found in possession of 'Charas' and hence the burden to prove that they were innocent, was shifted on them. Both the accused were charged with offences punishable under Section 8(c) read with Sections 21, 23(c), 28 and 29 of the NDPS Act, for entering into a criminal conspiracy to possess, smuggle and illegally transport the narcotic drug out of India. The presence of the accused persons was said to have been secured before the jurisdictional Court on 3.11.2009. The parties were heard before the framing of charges and the Court framed charges, to which the accused pleaded not guilty to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer, it is pointed out that both the above persons connected with the reception and onward transmission of the alleged alert message to the AIR Intelligence Unit have not been examined as witnesses by the prosecution. Therefore it is contended that the assertion by the prosecution as to the above sequence in furtherance of their case cannot be accepted. It is pointed out that the Complainant - Superintendent of Customs, R. Ramamurthy (examined as PW.3) in the course of his evidence has stated that neither had he personally received the message nor had AIU received the information directly, regarding the commission of the offence. His statement is that he received a photo copy of the alert message along with a copy of the passport of the accused from the Administrative Superintendent of AIU. As against this, the counsel for the respondent had reasserted that there was only one Administrative Superintendent of Customs, AIU, and that PW3 had indeed received a copy of the information from him. This Administrative Superintendent has not been examined as a witness by the prosecution. It is also alleged that there is no endorsement made by him on the alleged copy of the information tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said alert message is not compared with the original, the same cannot be accepted as secondary evidence. It is next contended that in terms of Section 57 of the Code of Criminal Procedure (Hereinafter referred to as "CrPC"), there is a safeguard provided to a person arrested without a warrant, namely as follows: "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court." It is contended that in the present case on hand, the arrest of the accused Marek and Tuchler was effected by issuing them an arrest memo by Mr. S.J. Louis, Inspector of Customs and Mr. Mahesh Kumar H.K., Inspector of Customs respectively on 2.11.2009. Thereafter they were presented before the jurisdictional Magistrate on 3.11.2009, which is well within the time frame provided under the law. But inexplicably, the Mahazar, is dated 1.11.2009. This fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that Ex. P17 i.e. the hotel register extract does not contain the name of the hotel and it does not contain the signature of the hotel authorities either. Moreover, these documents being mere Photostat copies and having not been compared with the originals, they cannot be admitted as Secondary evidence under Section 65(a) of the Indian Evidence Act, 1872. Further, the said Ganapati Manjunath Naik had not been examined as a witness to corroborate the evidence given by PW4. Further, it is pointed out that Haribabu had not procured the Certificate of Registration issued by FRRO to confirm that the accused visited Bangalore on the date of offence. 8. The learned Counsel Shri Hashmath Pasha would contend that the evidence adduced by PW5 - Mr. Raj Pal Singh, Chemical Examiner Grade I, CRCL, New Delhi, is unreliable on various grounds and that reliance ought not to be placed on the test report issued by him. The learned counsel contends that Ex. P20 which is a test report does not specify as to which chemical and chromatographic examinations were conducted to identify the nature of the sample substance and also as to who had conducted such examination. The prosecution had also not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt cannot presume the conscious possession of the contraband on the part of accused. 10. The counsel for the appellants have time and again raised the contention regarding the non-examination of the independent witnesses by the prosecution. They have relied on the case of Ritesh Chakravarti v. State of M.P., (2007) 1 SCC (Cri) 744, wherein the Supreme Court has held that offences under the NDPS Act being grave ones, the procedural safeguards provided to the accused must be strictly complied with. The Court has gone on to hold that the search allegedly having taken in a busy place, the fact that none of the persons who were witnesses to the said search and seizure were examined, neither their addresses nor names taken, would lead the Court to draw an adverse inference on the ground of non- examination of material witnesses. A similar situation has arisen in the present case on hand, wherein the two witnesses, Shameer and Avinash, who allegedly witnessed the search and seizure of the accused and helped in drawing up the Mahazar, were not examined by the prosecution. 11. On the other hand, the counsel for the respondent - State while seeking to justify the judgment of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is no necessity in procuring the Certificate of Registration issued by FRRO when the accused themselves have agreed to have been staying in Bangalore from 27.10.2009 to 1.11.2009 at Hotel Shivalaya Delux. The counsel for respondent contends that in so far as the tests conducted on the incriminating material being inconclusive, it is asserted that there is no necessity to conduct the tests prescribed by the United Nations Manual, to determine the nature of the substance present in the sample. As regards the non-examination of the independent panch witnesses, the counsel for respondent submits that they had taken reasonable steps in tracking the said independent panch witnesses but to no avail. This reasoning provided by the prosecution for non-examination of the panch witnesses cannot be taken into consideration. The non-examination of the said material witnesses casts a serious doubt on the case of the prosecution. Furthermore, the Counsel for respondent has relied on Asst. Director, DRI v. Syed Rehamat Pasha, ILR 2008 KAR 1909, wherein this Court had held that the "Mere fact that a panch witness did not support the prosecution case would not make the prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess to corroborate his statements. Moreover, Ex.P1, which is the alleged alert message, is not the original but a photo copy. Furthermore, he himself has admitted that it was he who requested the Deputy Commissioner of Customs, Bangalore Mr. T.V. Ravi, to be a witness to the search and seizure to be conducted under Section 50 of NDPS Act, as T.V. Ravi was a Gazetted Officer. He had stated that Mr. T.V. Ravi was present throughout the search and seizure till the Mahazar was drawn concluding the seizure proceedings and had affixed his signature on all documents and materials seized, including the Mahazar. But it is a fact that Mr. T.V. Ravi had affixed his signature only on the Mahazar and nowhere else, which gives room for suspicion as to the genuine nature of the search and seizure proceedings. The trial court has also found this as a fact: "34. Though this witness PW3 has been thoroughly cross-examined, nothing much has been elicited so as to disbelieve his evidence. Of course certain answers are elicited, which may lead to inference that the mahazar is concocted." But the trial court justified this on the reasoning that there is no animosity between PW3 and the accused and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cri) 744, this Court is of the conclusion that the Bangalore International Airport being a busy place, the failure of the prosecution in taking down the contact details or address of the independent witnesses has committed a grave error in not complying with the mandatory provisions providing strict safeguards to the accused as the act alleged to have been committed amount to grave offences. This in turn leads this Court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872. The prosecution has failed to produce the originals of the alert message (Ex. P1), the hotel register extract (Ex. P17), the original test memo etc. Absence of signature of PW2 - Mr. T.V. Ravi, the Gazetted Officer who witnessed the search and seizure, on M.Os. 1 to 5 questions the presence of the witness during the procedure itself. All that the prosecution could cull out of this investigation is the voluntary statement given by the accused under Section 67 of NDPS Act. Even this statement was retracted by the accused later on. The prosecution has also failed to prove beyond reasonable doubt as to the presence of conspiracy between the accused in possessing and transporting the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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