1999 (11) TMI 909 - HC - Customs

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this appeal include:

• Whether the mandatory procedural requirement under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) was complied with at the time of search and seizure, and if non-compliance renders the seizure illegal.
• Whether the prosecution successfully established the identity and chain of custody of the seized contraband and the samples sent for chemical analysis.
• Whether the confessional statement made by the appellant was voluntary and admissible in evidence.
• Whether discrepancies and procedural irregularities in the test memos and custody of the seized heroin affect the reliability of the prosecution's case.
• Whether the appellant's claim of ignorance of English language and allegations of coercion or force in obtaining the confession affect the credibility and admissibility of the statement.

2. ISSUE-WISE DETAILED ANALYSIS

Compliance with Section 50 of the NDPS Act

The appellant contended that the mandatory provisions of Section 50, requiring that a person be informed of his right to be searched in the presence of a Gazetted Officer or Magistrate, were not complied with, thus rendering the search and seizure illegal. The Court examined the distinction between a search of the person and a search of baggage. It was held that Section 50 applies only when the person himself is to be searched, not when his baggage is searched. The heroin was recovered from the appellant's suitcase, not from his person, and therefore the procedural safeguards under Section 50 were not triggered. This interpretation aligns with the precedent laid down in State of Punjab Vs. Baldev Singh, which clarified the scope of Section 50. The Court rejected the appellant's contention on this ground, confirming that the search of the suitcase without offering search in presence of a Gazetted Officer or Magistrate was lawful.

Establishment of Identity and Chain of Custody of Seized Contraband

The prosecution's case rested on the testimony of customs officers and the chemical examiner. The appellant was intercepted at the customs counter while departing on an international flight. He initially denied carrying contraband and was offered the option to be searched in presence of a Gazetted Officer or Magistrate, which he declined in writing. The appellant then presented his checked-in luggage for search. The suitcase was identified by the appellant and matched with the baggage tag on his ticket. Two packets containing heroin were recovered from the suitcase in the presence of panch witnesses, and a seizure memo was prepared on the spot.

The samples were drawn from the seized heroin, sealed, and deposited in the customs godown. Subsequent testimony of officers established that the seals remained intact until the samples reached the Chemical Examiner's laboratory. The chemical analysis confirmed the substance to be diacetyl morphine (heroin). The Court noted that the appellant did not challenge the testimony of the Chemical Examiner or the officer who handled the samples, thereby affirming the integrity of the chain of custody and the identity of the seized articles. Minor discrepancies in test memos and procedural irregularities in custody were noted but found insufficient to undermine the prosecution's case.

Voluntariness and Admissibility of the Confessional Statement

The appellant had made a written confession admitting possession of 250 grams of heroin. He later retracted the confession, alleging it was obtained by force and that he was beaten by customs officers. The Court observed that the appellant did not raise these allegations at the time of the confession or immediately thereafter, but only years later during trial proceedings. There was no material on record to substantiate claims of coercion or physical abuse. The Court relied on the principle that a confession must be voluntary to be admissible, and found that the appellant's confession was voluntary.

Further, the appellant claimed ignorance of English language and argued that he did not understand the confession statement. The Court rejected this argument based on evidence that the appellant had made entries in English in a hotel register and had written in English on the panchnama. The Court also noted that the appellant did not raise this issue contemporaneously. The Court relied on authoritative precedent which held that a statement recorded in a language not understood by the accused could be admitted if there was no objection at the time and if the accused had demonstrated knowledge of the language.

Effect of Procedural Irregularities and Discrepancies

The appellant pointed out some discrepancies in dates on the test memos and procedural lapses in safe custody of the heroin. The Court acknowledged these but held that such minor irregularities do not vitiate the entire prosecution case, especially when the chain of custody was otherwise intact and the evidence was unchallenged. The Court emphasized that the burden is on the accused to show that such irregularities caused prejudice or cast doubt on the authenticity of the seized material, which was not done here.

Application of Law to Facts and Treatment of Competing Arguments

The Court applied established principles relating to search and seizure, chain of custody, admissibility of confessions, and burden of proof. It distinguished between search of person and baggage for Section 50 compliance. It gave due weight to the unchallenged testimonies and the confession statement. The Court considered the appellant's allegations but found them unsubstantiated and inconsistent with the evidence. The Court relied on precedents which emphasize that unexplained delay in raising allegations of coercion or language ignorance undermines their credibility.

3. SIGNIFICANT HOLDINGS

The Court's crucial legal reasoning includes the following verbatim excerpts:

"Only when a person of an accused is to be searched then he is required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate. The search of a baggage of a person is not the same thing as search of the person himself."

"The appellant had himself admitted in his statement under Section 108 of the Customs Act that it was heroin."

"Till then, he had not complained against any Officer as regards the alleged beating or use of force nor he had stated that he did not know English. Therefore, this contention also cannot be accepted."

The core principles established include:

• Section 50 of the NDPS Act applies only to searches of the person, not to searches of baggage.
• Proper identification and chain of custody of seized narcotics can be established through testimony of customs officers and chemical examiners, and minor procedural irregularities do not necessarily vitiate the prosecution's case.
• A confession is admissible if voluntarily made, and unexplained delay in raising allegations of coercion or language ignorance weakens the accused's claim.

Final determinations on each issue were:

• The search and seizure were lawful despite no offer of search in presence of Gazetted Officer or Magistrate, as the search was of baggage, not person.
• The prosecution established the identity and custody of the seized heroin beyond reasonable doubt.
• The confession statement was voluntary and admissible.
• Allegations of coercion and language ignorance were rejected due to lack of evidence and inconsistency with facts.
• Minor procedural irregularities did not affect the validity of the prosecution's case.

Accordingly, the Court dismissed the appeal and confirmed the conviction and sentence imposed under Sections 21/28 read with Section 23 of the NDPS Act.