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TMI Blog2015 (6) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... Indira Gandhi Airport at around 9.30 pm and reached Terminal-II at around 10 pm, on the same day. Two public witnesses, Mr. Ravinder Singh (PW-9) and Mr. Brijesh Kumar joined them. 3. The Respondent was identified with the help of the immigration authorities and with the help of his passport and boarding pass. His checked in baggage was retrieved from the Malaysian Airlines with the help of Mr. Manoj Gupta, a Ground Duty Official of Universal Aviation Pvt. Ltd. According to PW-11, the Respondent identified his baggage. They tallied the baggage tag with the counterfoil affixed on the ticket. The Respondent was taken to the city side area CISF control room. He was served notice under Section 50 NDPS Act and informed of his right to have his personal search as well as search of the baggage conducted in the presence of a Gazetted Officer or a Magistrate. The Respondent, who could not speak English, supposedly communicated by body language that his search could be conducted by any officer. The response of the Respondent was noted by PW-11 on the copy of the notice under Section 50 of the NDPS Act (Ex. PW9/A) and his thumb impression was taken. Both PW-9 and Mr. Brijesh Kumar signed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a certificate was appended by the trial judge at the end of the transcript of the deposition of each of the prosecution witnesses to the effect that "explained the contents of the deposition to the accused through interpreter in the language known to the accused and which is duly certified by the interpreter." The statement of the Respondent under Section 313 Cr PC 8. The evidence of the prosecution was put to the Respondent under Section 313 of the Code of Criminal Procedure (Cr PC) and his response, as conveyed by the interpreter, was noted by the trial Judge. The Respondent admitted that he had been stopped by some officials in the immigration counter. However, as regards the retrieval of the baggage he stated that "It is incorrect that my baggage was retrieved from the Airlines. I was not carrying any check-in baggage. I cannot say how the particulars on the baggage tag affixed on my boarding pass tallied with the particulars on the counterfoil of the baggage retrieved by the officials. I had not given any baggage to the concerned Airlines for checking in". (emphasis supplied) 9. The Respondent further claimed that his thumb impressions were forcibly taken on many documents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehend what was happening till the same was translated to him by an interpreter appointed by Court. Therefore the testimony of PW-11 that he was able to make the Respondent understand the contents of the notice under Section 50 of the NDPS Act by gesturing was "absolutely incorrect and false". (ii)The grounds of arrest were not explained to the Respondent. The NCB Superintendent ought to have made efforts to join a person who understood the language of the accused in the proceedings to lend credibility to the proceedings. (iii)The notice under Section 50 was perhaps not necessary since there was no personal search of the Respondent. Nevertheless, the issue was of credibility of the prosecution evidence. Further, the narration in the panchnama showed that the Respondent was only given an option of his search and not informed of his legal right to be searched in front of a Magistrate or Gazette Officer. Therefore, the statement of PW-11 that Section 50 was complied with was false. (iv) The test memo was not signed by PW-9 in whose presence the search and seizure proceedings were conducted. The mere testimony of PW-11 that the test memo was prepared at the spot c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age. However, the firm case of the NCB is that he had checked in the black trolley bag from which the psychotropic substance Meth was retrieved with the help of the ground staff. 15. The trial Court record contains the disembarkation card and the customs declaration form (Exs. PW-9/A2 and PW-9/B-B) which were seized by the NCB from the Respondent. There is also a baggage tag (Ex. PW-9/B2) which undoubtedly is computer generated. No part of it is written by hand. It bears the name of the Respondent, the two flight numbers (as it was checked to its ultimate destination Cebu). The tag bears the number 0232440668 which tallies with the counterfoil of the baggage tag (Ex. PW9/B-5) which was affixed either on the boarding pass or the ticket with the Respondent. 16. It is also not in dispute that when a passenger, boarding an international flight presents a ticket at the airlines counter, his baggage is weighed and a baggage tag is issued which is then affixed either on the ticket or on the boarding pass. The passenger has to physically present himself at the counter with the baggage he wishes to check in. In many airports the baggage is also x-rayed before it is checked in. The passeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e counterfoil of the tag of the baggage checked in on his ticket. Instead, the Respondent took a conscious stand that he did not check in any baggage at all. 19. That the Respondent was in conscious possession of the checked in baggage is perhaps the most crucial aspect of the case. In this connection, it is also necessary to examine what is the position on the genuineness of documents that recovered from the possession of the Respondent. In the instant case, the counterfoil of the computer generated baggage tag affixed on the ticket/boarding pass was one such document. Section 66 (i) read with 66 (b) and (c) of the NDPS Act states that where any document "has been seized from the custody or control of any person under this Act", and such document is tendered in evidence by the prosecution against him, the Court shall "admit the document in evidence, notwithstanding that it was not duly stamped " and shall "also presume, unless the contrary is proved, the truth of the contents of such document." The computer generated baggage tag and its counterfoil qualify as documents that are admissible in evidence and the truth of their contents have to be presumed. The presumption is no doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontraband article, he is presumed to have committed the offence under the relevant provisions of the Act unless the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise." The non-examination of Manoj Gupta 23. The trial Court has drawn an adverse inference against the prosecution on account of the non-examination of Mr. Manoj Gupta, the ground duty official who helped to retrieve the baggage. The proceedings of the trial Court show that the summons were issued to Manoj Gupta by an order dated 16th September 2010. The proceedings dated 19th November 2010 records that summons on Manoj Gupta were not served "because he was not found living on the mentioned address". The summons were again sent to him for the hearings on 16 th March, 25th May, 28th July, 9th August and 6th September 2011. Summons were also sent to him through the IO. On 6 th September 2011, the Court noted as under: "Counsel for NCB submits that only one witness Mr. Manoj Gupta remains to be produced by prosecution but despite various efforts this witness could not be traced ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bag is found to contain some cloths and personal belongings". 28. If the clothes and personal belongings found in the bag were women‟s clothing as stated by the Respondent in reply to question No.8 in his statement under Section 313 Cr PC, clearly the defence counsel would have noticed it and got a question recorded in that regard in the cross-examination of the witness. However, he did not do the same. 29. The evidence of PW-9 shows that he was unable to be shaken in his cross-examination. The trial Court has not adequately dealt with the testimony of PW-9. It appears that during the cross-examination of PW-9 a doubt was raised by counsel for the Respondent whether the packet which was recovered from the DVD player could in fact have been fitted into it at all. PW-9 was a Senior Technician having done a course of Electrical Training from ITI, Aligarh. He stated that he could dismantle a computer and was aware how a computer and a laptop worked. The transcript of his cross-examination recorded on 28th July 2011 reads as under: "The Ld. Defence Counsel at this stage has submitted that the bag which is alleged to have been recovered from the DVD Player is so bulky ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the prosecution in concluding that it had not been able to prove the Respondent's conscious possession of the psychotropic substance. In the considered view of the Court, the prosecution evidence proves that fact beyond reasonable doubt. The notice under Section 50 34. On the question of the notice under Section 50 of the NDPS Act, it has been held repeatedly by the Supreme Court that non compliance of Section 50 would not be fatal to the prosecution case if the contraband is recovered not from the person but from a suit case or conveyance. Illustratively, the decisions in Ajmer Singh v. State of Haryana (2010) 3 SCC 746, State of Punjab v. Baldev Singh AIR 1999 SC 2378 and Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 are relevant in this regard. 35. Consequently, even if in the present case the NCB officials were not in a position to explain to the Respondent the contents of the notice under Section 50 NDPS, on account of his inability to understand English and the inability to arrange for an interpreter at the airport, an adverse inference ought not to be drawn against the NCB since the contraband was not found from the person but from his checked-in luggage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his cross-examination on 6th September 2011 "I had mixed the substance using my hand and then had taken out the sample. It is correct that I took out the sample from one place and not from the four corners." 39. The Court holds that the trial Court erred in concluding that the substance was recovered from the Respondent was not sent for analysis. Conclusion 40. This Court concludes that the prosecution has been able to prove beyond reasonable doubt that it was the Respondent who had checked in his black trolley bag from which the psychotropic substance was recovered and that he was in conscious possession thereof. The prosecution has been able to prove that what was being carried by the Respondent by way of export from India to place outside India was a commercial quantity of a prohibited psychotropic substance, thus clearly attracting the offences under Sections 22 and 23 of the NDPS Act. 41. The Court accordingly sets aside the impugned judgment of the trial Court and convicts the Respondent for the offences under Sections 22 (c) and 23 (c) of the NDPS Act. Sentence 42. The nominal roll dated 24th November 2014 of the Respondent shows that during the period of trial he has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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