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TMI Blog2018 (4) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... e warranting interference at the hands of this court. The quantum of both physical and monetary sentence imposed on the appellant by the learned trial judge appear to be appropriate and thus, the same also do not require any interference at the hands of this court - appeal dismissed - decided against appellant. - Criminal Appeal No.414 of 2013 - - - Dated:- 9-2-2018 - P. Velmurugan, J. For the Appellant : Mr.R.Vijayaraghaven For the Respondent : Mr.N.B.Kumar, Spl. Public Prosecutor for Customs JUDGEMENT The sole accused in Calendar Case No.3 of 20009 on the file of the learned Special Judge, Additional Special Court under NDPS Act, Chennai, is the appellant herein. She stood charged for offence under Sections 8(c) r/w 21(c), 28 and 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 135(1)(a)(ii) of The Customs Act. When the appellant was questioned as to the charges, she pleaded not guilty and therefore, she was put on trial. The learned Special Judge, after full-fledged trial, found the appellant guilty of offence under Sections 8(c) r/w 21(c), 28 and 29 of the NDPS Act and under Section 135(1)(a)(ii) of The Customs Act. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest of the accused. Thereafter, the accused was forwarded to the court for judicial remand. With the above allegations, P.W.2 filed the complaint against the appellant under Section 8(c) r/w 21(c), 28 and 29 of the NDPS Act. 4. On appearance before the trial court, the substance of the offences were explained and charges were framed as stated in first paragraph of this judgment. The appellant denied the charges and opted for trial. Thus, she was put on trial. 5. Based on the materials collected during investigation, the prosecuting agency has examined as many as 7 witnesses as P.W.1 to P.W.7, Exs.P.1 to P.23 were marked and M.Os.1 to 15. 6. Out of the above said witnesses, P.W.1 was the Intelligence Officer at Chennai Airport during the relevant point of time. He has stated that on 29.04.2008 while he was on duty he found the accused moving in a suspicious manner towards security check. When the accused was about to board Jet Airways Flight 9W032 bound for Kualalumpur she was intercepted and on being questioned, she did not answer properly. So, he developed suspicion and decided to check her checked-in-luggage. On checking the luggage he found a bulge in the bottom of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king, the Intelligence Officer found that the accused was smuggling heroin by concealing the same in her luggage. He has also stated that M.O.1 to 13 were recovered in his presence and he singed in the recovery mahazar. 10. P.W.5, the then In charge of Supervising follow up action, R.S.I. (AIR) has stated that the accused was a Thai National lady. He was present at the time when further statement was recorded from the accused by P.W.2 during interrogation at the customs house and in pursuance of the same, two cell phones with SIM cards were recovered from the accused in his presence under a cover of mahazar and he singed in the recovery mahazar. 11. P.W.6, the then Superintendent, Airport Intelligence Unit, Anna International Airport, Chennai, has stated that on 30.04.2008, while he was on duty, P.W.1, on suspicion that she might be carrying some contraband, intercepted the accused and on a thorough check, she was found to have smuggled contraband which was latter on found to be heroin. He has further stated that P.W.1 recovered the contrabands, travel documents and other material objects in the presence of two independent witnesses. 12. P.W.7, the then Superintendent, Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s about to board a flight bound for Kulalambur, on suspicion, she was intercepted by P.W.1 and P.W.4 was directed to bring the checked-in luggage of the appellant and on a thorough re-check in the presence of P.W.4, P.W.6 and another lady officer who was on duty at Airport, she was found to have smuggled 4.900 kgs of heroin by concealing the same in her suitcase (M.O.13) and that the chemical analysis report also proved that it was heroin. Thus, the prosecution proved its initial burden of proving its case and that the learned trial Judge had rightly presumed the culpable mental state of the appellant that she was with conscious possession of such a huge quantity of heroin which had been concealed in her own luggage. According to him, once the possession of contraband has been proved, then, the burden shifts on the appellant to prove that she was not in conscious possession of the contraband. In the instant case, the appellant was not able to discharge the onus of proof that she was not in conscious possession and therefore, in view of the provision in Section 54 of the NDPS Act, the trial court invoked the presumption and found that the appellant was guilty and it does not require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rport Commissioner, Chennai and on completing her investigation, she filed a complaint (Ex.P.21) on 24.09.2008 against the appellant. 22. The contention of the learned counsel for the appellant is that the alleged confession of the appellant cannot be said to be a substantive evidence and merely on the basis of confession of the appellant, the learned trial court found her guilty of offence u/s 135 of the Customs Act cannot be countenanced. In this regard, it is needless to state that a confession made before an Officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 of The Evidence Act and the statement recorded u/s 67 of the NDPS Act is admissible. The Officers of the Customs Department are empowered to conduct an enquiry or investigation for an offence under the provisions of the NDPS Act, but, they are required to follow the provisions of the said Act scrupulously. The field test carried out also answered that it was heroin. Having regard to the oral and documentary evidence, this court is of the view that there is no irregularity committed on the part of the respondent right from interception of the appellant and until she was appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been proved, Section 35 of the NDPS Act would come into play and the onus shifts on the appellant to prove that she was not in conscious possession of the contraband. The burden of proof cast on the accused under Section 35 of the NDPS Act can be discharged through different modes. The appellant has failed to discharge his burden in the manner known to law. In her statement under Section 313 of Cr.P.C. also no plea has been taken that she was not in conscious possession of the contraband. The appellant has only pleaded that a false case has been foisted against her and she had not stated anything as to why would the revenue authorities foist the false case against her. It is to be noted that huge quantity of heroin was recovered from the possession of the appellant at the airport while she was about the board a flight bound for Kualalumpur. Admittedly, the revenue officials had no previous enmity with the appellant. It is not possible to accept the contention of the appellant that she is being falsely implicated as it is highly improbable that such a huge quantity has been arranged by the authorities in order to falsely implicate the appellant. This court do not find any justific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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