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2011 (11) TMI 411 - HC - CustomsConviction - Prosecution - 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 - The bag was emptied of its content and the bottom portion of the bag was then cut opened and a white colour stitched cotton cloth belt with velcro having four partitions was detected, which was pricked with the help of a needle and white powder oozed out of the same, suspected to be some Narcotics substance - 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 - It is further recorded that though non-examination of independent witnesses by itself does not become fatal to the prosecution. However, it has to be appreciated differently in the facts and circumstances of each case - 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 as the accused had language problem and was unable to understand the Hindi and English language - This issue has already decided in the case of Union of India v. Shah Alam and Anrs. reported in 2009 (6) TMI 926 - SUPREME COURT and held that before the recovery was effected from his bag, baggage and at the time when notice was served upon the respondents/accused, it was not known to PW5 that recovery would not be effected from his person but from his bag or baggage - It is also observed that since the Test memos were prepared on 10-10-2007 and the custom seal was in the custody of PW5, the samples Mark E1 to H1 were also in his custody and as such the tampering of the said samples cannot be ruled out - Appeals are dismissed
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