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TMI Blog2013 (7) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... s.1,50,000/-. In default of payment of fine, the appellants were ordered to undergo further rigorous imprisonment for a period of one year. It has come on record that one of the appellants namely Nasreen Akhtar has preferred separate appeal bearing CRA No.527-DB of 2011. Since the said appellant has already filed the present appeal along with other co-accused, therefore, no separate orders are called for in CRA No.527-DB of 2011. The prosecution case is that on 08.05.2006 at about 2.30/ 3.00 PM, appellants No.1 & 2, who are the Pakistani Nationals, entered India through Samjhauta Express at Land Custom Station, Attari Rail Station. After clearance of immigration formalities, both of them having common gate pass reported for customs clearance at Counter No.1, where Inspector Customs Rajesh Sarswat was officiating the clearance duty and Shri J.S.Gill, Superintendent was supervising the clearance of passengers. Inspector Customs Rajesh Sarswat noticed some false cavities in the two leather bags being carried by the accused. On suspicion, two independent witnesses namely Jasbir Singh and Kulwant Singh were called at the spot. Shri J.S.Gill, Superintendent disclosed his identity to bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Customs Rajesh Sarswat as PW-1; Inspector Customs Neena Sood as PW-3; Shri Piara Ram, Superintendent Customs as PW-4; Shri A.S.Bajwa, Superintendent Custom Freight Station, Jalandhar as PW-5; Inspector Customs Dhiren Senapati as PW-6; Shri Subash Chander, Superintendent Customs as PW-7; Inspector Customs Ranjit Kumar Gupta as PW-8 and Inspector Bhuvneshwar Mishra as PW-9. The incriminating circumstances appearing against the accused were put to them while recording their statements under Sections 313 Cr.P.C. The appellants denied all the allegations and pleaded false implication. In defence, they examined DW-1 Ajit Singh, Criminal Ahlmad, who has brought the original file pertaining to case No.122 dated 02.08.2006/28.02.2008 titled as 'Inspector Customs Vs. Rashida Bibi' decided on 26.07.2008. After considering the testimonies of all the witnesses as well as the documents produced on record, the learned Additional Sessions Judge convicted and sentenced the appellants in the manner mentioned above. PW-1 Rajesh Sarswat, Inspector Customs, while appearing in the witness box, supported the prosecution case as set out in the complaint in its entirety. He deposed that appellants No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocured under threat. PW-2 Ms. Neena Sood is the witness, who carried out the personal search of accused-appellant No.2 (Nasreen Akhtar) in the presence of an independent witness Devi in x-ray room adjoining the counter and recovered 40 capsules from her inner clothes and hair band. She deposed that the search of sandals were conducted at the counter. In her crossexamination, she stated that personal search was conducted at 8.00 PM. PW-3 is J.S.Gill, Superintendent Customs, who was supervising the clearance of passengers. He deposed that appellants No.1 & 2 were having a joint gate pass. He deposed that the accused were carrying two leather bags and one rexine bag. False cavities were noticed in the leather bags. He also deposed about the manner of search and recoveries as stated by PW-1 Rajesh Sarswat. He deposed that statement of Mohd. Rashad was recorded in his presence by Inspector Narinder Mohan after giving due caution that the same can be used in the Court of law and no threat, pressure was exercised upon the accused while recording the statement. In his crossexamination, he stated that both the accused were having common baggage and common gate pass and that name of Mohd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was having full knowledge that involvement in drug trafficking i.e. sale, purchase, receipt and delivery. He deposed that subsequently another statement (Ex.P42) was recorded under Section 67 of the Act and under Section 108 of the Customs Act on 10.05.2006. PW-8 is Ranjit Kumar Gupta, who arrested the accused Jamir @ Manu on 10.05.2006. PW-9 is Inspector Bhuvneshwar Mishra, who was posted as Incharge Malkhana Custom House, Amritsar on 10.05.2006. He deposed that on that date, Shri Rajesh Sharswat, Inspector Customs deposited with him one tin box sealed with seal No.152 of Customs Division containing 4.140 Kilogrammes heroin along with Indian currency and personal effect. He deposed that till the case property remained with him, neither he tampered nor allowed anybody to tamper with it. Learned counsels for the appellants have raised the similar arguments, as were raised by the appellants in CRA No.11-DB of 2010 titled 'Fatima Bibi w/o Safi Safe Vs. Inspector of Customs' decided on 26.03.2013 by this Bench. In the aforesaid case also, two Pakistani Nationals entered India through Samjhauta Express at Land Custom Station, Attari Rail Station on the same day i.e. 08.05.2006 and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers. However, in respect of appellant No.3, it is argued that he is an Indian National living in Delhi and no recovery of any contraband has been effected from him. Therefore, in the absence of recovery of any contraband, the statements of appellants recorded under Section 67 of the Act and under Section 108 of the Customs Act would not be sufficient to maintain conviction of appellant No.3 for an offence under Section 29 of the Act. We have heard learned counsel for the appellants at length in respect of conviction of appellant No.3 for an offence punishable under Section 29 of the Act. Section 29 of the Act contemplates that whoever abets or is a party to a criminal conspiracy to commit an offence punishable under Chapter IV of the Act, then notwithstanding anything contained in Section 116 of the Indian Penal Code, such person shall be punishable with the punishment provided for the offence. No doubt no recovery of any contraband has been effected from appellant No.3, but for an offence punishable under Section 29 of the Act, the recovery of contraband is not necessary. The statement of Jamir in respect of visits of Mohammad Rashad and Nasreen Akhtar is corroborated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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