TMI Blog2011 (11) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - - - 284 & 275 of 2011 - Dated:- 25-11-2011 - Suresh Kait, J. REPRESENTED BY : S/Shri P.C. Aggarwal and Sunder Lal, Advocates, for the Petitioner. Shri Yogesh Saxena, Advocate, for the Respondent. [Judgment (Oral)]. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Respondent/accused was asked about the substance and he affirmed that it was Narcotic Substance. 4. It is further alleged that after removing the stitches of cotton belt, 4 packets wrapped with yellow adhesive tape were recovered, which were given Mark E, F, G and H respectively and were found containing off - white Powder which was tested with the field test kit and found positive for Heroin . 5. The contents of each bag were weighed and were found to be 600 grams, 1263 grams, 1279 grams and 1159 grams, respectively, the total weight being 4301 grams. 6. Thereafter, the said substance was seized as per procedure, three representatives sample of 5 grams each were drawn from the contents of each of the pocket and were given Mark E-1, E-2, E-3, F-1, F-2, F-3, G-1,G-2, G-3 and H-1, H-2 and H-3 and were kept in 12 poly packs and further placed in 12 brown envelops sealed with custom seal no. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge passed his judgment on the basis of evidence on record that admittedly accused was intercepted at IGI Airport on his arrival from Afghanistan. However, it is denied by him that any incriminating substance was recovered from his possession. To prove the recovery of the contraband from the possession of the accused the prosecution has examined only PW-5, who is the complainant/seizing/arresting officer in the present case. In his testimony he deposed about interception of respondent/accused at IGI Airport which is admitted by the respondent/accused. The said witness testified about service of notice U/s 50 NDPS Act upon the respondent/accused. He testified that thereafter the hand bag of the accused was checked and was found containing at its bottom portion, white colour cotton cloth stitched velcro belt which was found containing one small and three big packets containing substance suspected to be Heroin. However, his aforesaid testimony has not been corroborated by any independent evidence as both the panch witnesses and even Burhan Ahmadi who could have supported his testimony in this regard being the interpretor in whose presence all the proceedings were conducted, have not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) SC 595 that courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Sec. 50 NDPS Act, that no presumption U/s 54 NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court that the requirements of Sec. 50 were duly complied with. It is held that the safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Sec. 50 of NDPS Act to ensure that persons are only searched with a view to maintain veracity of evidence derived from such search. The severe punishments have been provided under the Act for mere possession of illicit drugs and narcotics substances. Personal search, more particularly for offences under the NDPS Act are crucial means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Sec. 50 of the Act are observed scrupulously. It was further held that provisions of sub-section (1) of Section 50 of NDPS Act, make it imperative for the empowered officer to inform the person concerned (suspect) about the existence of his right that if he so requires, he shall be search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguages. He stated that by the expression of respondent/accused he came to know that he did not know Hindi or English language and knew only Dari and Farsi languages and one person namely Borhan Ahmadi was called from KAM Airline who was acquainted with Dari and Farsi languages, to translate the proceedings to the accused in his own language. On his request Borhan Ahmadi explained the contents of both the notices to the accused and informed him that he had option to get search of his baggage or his person in the presence of a Magistrate or a Gazetted Officer of customs and accused told Borhan Ahmadi that he had no objection if any custom officer took the search of his person or his baggage. Thereafter the signatures of both the panch witnesses, accused and Borhan Ahmadi were taken on both the notices Ex. PW5/A and Ex. PW5/B respectively, the respondent/accused had also put his thumb impression on the notices at point F and G. That Borhan Ahmadi had made an endorsement at point X to X on both the notices to the effect, Read over and explained in vernaculars to Mr. Mohd. Bagour who consented for search by any custom officer and signed in token of acceptance. 19. So far as Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Magistrate or any other the Gazetted Officer. 22. Learned SPP for Customs argued before the Trial Court and learned counsel for the appellant has also argued before this Court that the notice under Section 50 NDPS Act was not required to be served upon the respondent/accused in the present case as recovery was effected from his handbag and nor from his person. In support of his arguments he has relied upon the case of Ajmer Singh v. State of Haryana - 2010 (1) LRC 278 (SC) and has referred to para 13 wherein the contention of the appellant was recorded that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase etc., carried by the person and its non compliance would be fatal to the proceedings initiated under the Act. Their lordships find no merit in the contention of the learned counsel. It requires to be noticed that question of compliance or non-compliance of Section 50 of the NDPS Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc., does not come within the ambit of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment, thus in the present case the offer given to the accused to be searched by a Magistrate or by a Gazetted Officer of the custom was partial offer as the accused was not given an option for her baggage and personal search to be conducted in the presence of a Gazetted Officer belonging to the other department. 27. Learned Trial Judge has opined that neither notice Ex. PW5/B was proper notice nor it was served upon the accused and the accused was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate which is mandatory. 28. The Trial Judge has also recorded that non-examination of Borhan Ahmadi is fatal to the prosecution, as he was the best witness to prove as to what was explained by him on behalf of the complainant, to the accused while serving notice under Section 50 NDPS Act. Mere examination of PW5 and his testimony to the effect that notice was served through Borhan Ahmadi upon the accused by itself is not sufficient. 29. The Trial Judge has referred to the case of Supreme Court in Vijaysingh Chandubha Jadeja v. State of Gujarat - 2010 (4) LRC 225 (SC); wherein it is recorded that the provision of Section 50 of NDPS Act, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Haryana v. Mai Ram, Son of Mam Chand - 2008 (3) JCC (Narcotics) 188 wherein it is recorded that so far as examination of only official witness is concerned it is to be noted that only independent witness who was examined to speak about the seizure did not support the prosecution version, no material was brought on the record by the defence to discredit the evidence of official witnesses. The ultimate question is whether the evidence of official witnesses suffered from any infirmity. 34. In the case of Union of India v. Balmukand Ors. - 2009 (2) Crimes 171 SC it is held that conviction should not be based merely on the basis of statement made under Section 67 of the Act without any independent corroboration. 35. PW5 in his cross-examination stated that he had given questions to Borhan Ahmadi which were put by him to the accused and then he had reduced into writing his reply in English language. However, it is seen that there is no such framed questions filed on record which were put to the accused by Borhan Ahmadi and in response to the same he recorded the statement of accused under Section 67 NDPS Act except the bald testimony of PW5, there is no evidence on record th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not find mention as to when the Test Memos were prepared. PW5 in his chief examination testified that the Test memo was prepared in triplicate at the time of the drawal of the samples, whereas perusal of the Test Memo Ex. PW5/L shows that it is bearing the date under the signature of PW5 as 10-10-2007 and as such the same was prepared on 10-10-2007. Therefore, there is contradictory evidence led by the prosecution with regard to the date of the preparation of the Test Memos. If the chief examination of PW5 is believed to be correct, then it is for the prosecution to explain as to where are the Test Memos prepared on 9-10-2007 and in ease the Test Memo Ex.PW5/L is believed to be correct then the question arises why the Test Memos were not prepared on the date and time of drawal of the samples which amounts to non-compliance of the standing instructions 1/88. 40. At the same time it is brought to the notice of the court by the defence counsel that PW5 in his cross examination categorically testified that he had not obtained the customs seal No. 6 after 9-10-2007. If the seal was not taken again after 9-10-2007, then how the Test Memos were prepared on 10-10-2007 without cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 all dated 9-10-2007 vide entry No. 4067 and all these packets were handed over by this witness to the next SDO(A) vide entry No 4069, dated 9-10-2007. Both these relevant entries are proved as Ex PW4/A and are dated 9-10-2007. Besides, PW4 no other SDO(A) or valuable godown incharge has been examined by the prosecution to prove the safe custody of the case property and the representative sample till the case property was produced in the court and sample Mark E1 to H1 were sent to the CRCL. Neither any witness has been examined nor any entry in the SDO(A) register or valuable godown register has been proved on record to prove that PW5 had withdrawn samples Mark E1 to H1 on 10-10-2007 for deposit in the CRCL. Thus a vital link in the chain of the prosecution case is missing. 43. Another important fact also noted by ld. Trial Judge is that Test Memo in the present case was not prepared at the time of drawl of the samples on the intervening night of 8-10-2007/9-10-2007 but as per the testimony if PW5 Sh. Ganpat Singh AGO and even the Test Memo Ex. PW5/L itself speaks that the same was prepared on 10-10-07, there is no evidence on record that once seal was returned by PW5 to PW4 S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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