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TMI Blog2019 (12) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... er investigation, the respondent (Customs) laid a private complaint before the Special Court for NDPS Cases in R.R. No.23 of 2013 in O.S.No.57 of 2013 - INT and the learned Special Judge, after taking the complaint on file in C.C.No.25 of 2014 and after completing the formalities, framed charges against the appellant for the offences under sections 8(c) r/w.22 (c) of NDPS Act. 2. Subsequently, in order to prove the case of prosecution, during the trial, on the side of prosecution, as many as 3 witnesses were examined as PW.1 to PW.3 and 17 documents were marked as Exs.P1 to P17, besides 4 Material Objects. 3. After completing the prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the accused/appellant, he denied as false. On the side of defence, no oral and documentary evidence was produced. 4. After completing the trial and hearing the arguments advanced on either side and perusing the oral and documentary evidences, the learned Special Judge has come to the conclusion that the accused/appellant is guilty for the offence under sections 8(c) r/w.22 (c) of NDPS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference. 7. The learned counsel for the appellant has placed his reliance on the following decisions in support of his case:- (i) III (1999) CCR 109 (SC) (State of Punjab ..vs.. Baldev Singh etc.,); (ii) (2012) 1 Supreme Court Cases (Crl.) 385 : (2011) 12 Supreme Court Cases 207 (State of Delhi ..vs.. Ram Avtar alias Rama); (iii) (2013) 2 Supreme Court Cases 67 (Ashok Kumar Sharma ..vs.. State of Rajasthan); (iv) (2013) 1 Supreme Court Cases (Cri) 933 : (2013) 2 Supreme Court Cases 212 (Sukhdev Singh ..vs.. State of Haryana); (v) (2013) 4 MLJ (Crl.) 499 (SC) (Gurjant Singh @ Janta ..vs.. State of Punjab); (vi) (2014) 5 Supreme Court Cases 345 (State of Rajasthan ..vs.. Parmanand and another). 8. According to the prosecution, it is an admitted fact that the appellant was intercepted in Anna International Airport Terminal at Chennai on 31.07.2013 and he was in possession of air ticket to Jakarta and also when he reached the security point, at that time, when he was doubted about, the Customs Officials questioned him and as he ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic drugs or controlled substance/contraband, to which, he replied in negative. Not satisfied with his reply, the same was informed to the Superintendent, AIU Hall, who was present there, who in turn, directed PW.1 to arrange for two independent witnesses for further proceedings. As directed, PW.1 arranged for two witnesses and briefed them the details, showed them the appellant, his passport and travel documents. PW.1 also informed them about their intention to search the appellant's package and his person in their presence under the provisions of NDPS Act, to which they agreed and PW.1 introduced the witnesses to the team of officials and the appellant, then he informed, in the presence of the witnesses, the appellant that his package would be examined and searched, for his person search would be conducted under the provisions of the Narcotic Drugs and Psychotropic Substances Act and as per Section 50 of the NDPS Act, he had right to be searched either before the Magistrate or a Gazetted Officer and that the Superintendent was a Gazetted Officer. The appellant agreed to be searched before the said Superintendent (AIU) and PW.1 examined the appellant's hand bag - one blue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments to the prosecution Officer one Santhosh Kumar and assisted him in the prosecution of the appellant and in producing the seized properties before the Chief Metropolitan Magistrate (E.O. - II), Egmore, Chennai and therefore, deposited the properties with the Detention Officer, Customs, International Airport. Thereafter, after the investigation, the prosecution has filed a complaint, otherwise police report, before the Special Court under NDPS Act and the trial Court has also taken cognizance of the offence. 11. In order to prove the case of the prosecution, as already stated, on the side of the prosecution, three witnesses were examined. The Intelligence Officer (AIU Air Intelligence Unit) was examined as PW.1. He has clearly deposed that on specific information that the appellant, who bound for Jakarta via Kuala Lumpur by Malasian Airlines Flight - MH0181/31.07.2013, would be smuggling narcotic drugs concealed in his sandals worn by him, they identified and intercepted the appellant at the security area of the departure hall at Anna International Terminal, Chennai Airport. For the specific question whether he was carrying any narcotic drugs on his person o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 in the presence of witness PW.2 and others dated 31.07.2013 was marked as Ex.P7, confession statement recorded by the Customs Officers was marked as Ex.P8, Chart of the passengers dated 31.07.2013 on the particular flight was marked as Ex.P9. The arrest of the appellant/accused was also duly informed to his wife. The arrest memo dated 31.07.2013 was marked as Ex.P10 and the telegram to the wife of the appellant/accused dated 31.07.2013 was marked as Ex.P11. 12. The evidence of PW.1 was corroborated by PW.2, who has clearly deposed that he was working as salesman in Flemingo Duty Free in the International Airport on 31.07.2013 and when PW.1 asked him to stand as a witness for the proceedings, he also accepted the same and one Shanthikumar also stood as a witness along with him for the search proceedings conducted by PW.1 on 31.07.2013 in the International Airport. 13. PW.2 has also clearly corroborated the evidence of PW.1 and he was all along with PW.1 ie., from the search till the arrest and handover before the authorities. He also admitted that he has signed in the Mahazar and he was the witness to all the proceedings. Therefore, the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resence of the Gazetted Officer only, the appellant was searched and the belongings of the appellant was searched. Though the Gazetted Officer was not examined in this case, but witness to all the proceedings and the Mahazar was examined as PW.2. In the Airport, that too, in the security area, one cannot expect the public, that too, the passengers as a witness, where the passengers are proceeded to catch the flights and the passengers may not be in a position to stay for hours to give evidence. The reason stated by the learned counsel for the appellant that the independent public was not examined, is not acceptable. Therefore, mere non-examination of any independent public as a witness is not fatal to the case of the prosecution and the nonexamination of the Gazetted Officer in the presence of whom, the appellant was searched is also not fatal to the case of the prosecution. 17. PW.1 has clearly deposed about the entire proceedings and PW.2 has clearly corroborated the evidence of PW.1. The appellant has also not denied that he was not in possession of Boarding Passes and Air-Ticket (Exs.P2, P3 and P4), which itself shows that he was present in the Airport on that d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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