TMI Blog2013 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... erewith. Where the case property can easily be removed without tampering with the seals, the sacrosanct onus cast on the prosecution has not been discharged. Thus the learned Trial court committed no error in coming to the conclusion that the case property had not been secured properly. It is evident from the statement of the Respondent that he was given the two suit cases by Sukhjinder Singh a US citizen, known to the Respondent's family at the departure. Further the cross-examination of PW9 on this point is also relevant wherein the Investigating Officer admitted the suggestion that he did not verify the foreign address of the recipient of the bag at USA since he believed the statement of the accused recorded under Section 67 of the NDPS Act to the effect that the said bags were handed over to him by Sukhjinder Singh for delivery at USA and he was not aware of the contents of the same. Once the Investigating Officer was satisfied that the Respondent was not in the conscious possession of the contraband he ought to have made investigations qua Sukhjinder Singh. However, in this regard the Investigating Officer himself stated that he made no interrogation from Sukhjinder Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of Section 50 of NDPS Act was not required to be done. However, still notice under Section 50 NDPS Act was served on the Respondent when the search was taken. Reliance is placed on Ajmer Singh vs. State of Haryana, 2010 (1) LRC 278 (SC), Khet Singh vs. Union of India, 2002 (1) JCC 588 (SC) and Vimal Kumar Bahl vs. DRI, 2009 (113) DRJ 540. Regarding possession of the contraband not being conscious, learned counsel for the Appellant has taken me through the evidence on record and it is contended that PW11 Jitender Grewal at whose house the Respondent was staying and who had allegedly given the bag to the Respondent was examined before the learned Trial Court who clearly stated that the suitcase was given to the Respondent however, the same only contained his grand daughter‟s clothes and sandals as she was to go on 24th May, 2009 to USA and the suit case was not locked. No suggestion has been made to this witness that the contraband belonged to him or that the suitcase was locked. Further the statement of the Appellant was recorded under Sections 108 of the Customs Act and 67 of the NDPS Act which are admissible against him. In the statements the Appellant admitted his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hes of young girl were recovered. The granddaughter of PW11, whose clothes were sent through the Respondent, was not examined as a witness. Further the defence had clearly demonstrated before the learned Trial Court that keeping the seals intact the plastic container containing the alleged contraband could be removed from the pullanda. Thus the case property was not properly secured and the learned Special Judge committed no error in acquitting the Respondent. 5. I have heard learned counsel for the parties. 6. Briefly the case of the prosecution is that on 15th May, 2009 the Respondent holder of USA Passport No. 057061445 while leaving for San Francisco via Taipei by Air China Airlines was intercepted at the customs counter when he was proceeding for security check. He was asked whether he had any currency or contraband which he denied. Since the customs officer was not satisfied he called the panch witnesses and in their presence he asked the same question to which the Respondent again replied in the negative. The Respondent was carrying one air bag and had already checked in two baggages. The checked in baggages were called through airlines which were identified by the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ukhjinder Singh paid for his airlines tickets from San-Francisco to Delhi and 900 US dollars and Rs. 10,000/- for shopping out of which he spent Rs. 8,500/- and returned Rs. 1,500/-. On 15th May, 2009 he left Chandigarh and reached Delhi airport with two stops in between and at the departure parking driver off loaded the car and placed the suit cases on the trolley. Then he walked towards counter of China Airlines. At the departure parking he was told by Sukhjinder Singh that he had to carry two suit cases containing some clothes and articles of the grand daughter of Shri Grewal who had to go for studies to USA after some time. The said suit cases were to be delivered at the residence of the brother of Sukhjinder Singh in USA. He gave mobile numbers of the brother of Sukhjinder Singh etc. and that Sukhjinder Singh paid all the bills and purchased the tickets with intention to implicate him in illegal activities of smuggling and narcotics. He accepted the recovery of the black colour paste in the three separate packets. 7. As regards compliance of Section 50 of the NDPS Act the legal position is well settled as also laid down in Ajmer Singh (supra) that in case the recovery is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the stitching without tampering the seals on the paper slip and at the bottom. 9. It is thus apparent that the case property was not secured properly and without tampering with the seals on the paper slip the case property could be removed from the cloth pulanda after opening the stitches. In a case of recovery of narcotic drug it is the paramount duty of the prosecution to prove beyond reasonable doubt that the case property allegedly recovered from the accused was kept in safe custody and no tampering was done therewith. Where the case property can easily be removed without tampering with the seals, the sacrosanct onus cast on the prosecution has not been discharged. Thus the learned Trial court committed no error in coming to the conclusion that the case property had not been secured properly. 10. Taking this position as it is it may be noted that besides the case property three samples were drawn at the time of alleged recovery which were sent to the CRCL for analysis. There is no allegation that the samples sent to CRCL were tampered with. Thus the learned counsel for the Appellant presses that if not for the commercial quantity of possession of 5600 grams of morp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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