TMI Blog2015 (6) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... It is inconceivable that some other person got a baggage checked in or got a baggage tag in the name of the Respondent and got its counterfoil affixed on the Respondent's boarding pass or ticket which he somehow did not notice. The baggage tag and its counterfoil constitute evidence of conscious possession of the baggage by the Respondent and therefore, assume significance. Under Section 54 (a) of the NDPS Act, when a person fails to account satisfactorily for being in possession of a narcotic or psychotropic substance, a presumption can be drawn, unless the contrary is proved, that he has committed an offence under the NDPS Act in respect of such substance. 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 - The evidence of PW-9 is trustworthy and consistent and has been corroborated by PW-11, the IO. The difference in the time of completion of proceedings as spoken by PW-9 (till 12 midnight) and PW-11 (till 4 am.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t („RI‟) with fine not less than ₹ 1 lakh. It is likewise for the offence under Section 23 (c) NDPS Act. Consequently, for each of the offences under Sections 22(c) and 23(c) of the NDPS Act, this Court sentences the Respondent to undergo ten years RI with a fine of ₹ 1 lakh and in default to undergo simple imprisonment for three months. Both the sentences shall run concurrently. - Decided in favour of Revenue. - CRL.A. No. 1267 of 2014 - - - Dated:- 28-11-2014 - S. MURALIDHAR J For The Appellant :- : Mr. Subhash Bansal with Mr. Shashwat,. For The Respondent: Ms. Nikita Sharma. JUDGMENT 1. This appeal by Narcotics Control Bureau ( NCB‟) is directed against the judgment dated 31st May 2012 passed by the learned Special Judge, NDPS in SC No. 8 of 2009 acquitting the Respondent of the offence under Sections 22 and 23 of the Narcotics Drugs Psychotropic Substances Act, 1985 ( NDPS Act‟). The case of the prosecution 2. The case of the prosecution is that Mr. R.R. Kumar (PW-7) Superintendent, NCB, received a secret information on 11 th October 2008 that the Respondent, a Taiwanese national, was likely to board a Malaysian Airli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The remaining substance was given the Mark B. The DVD Player was wrapped in cloth and was given the Mark C. Further search of the trolley bag revealed one laptop of Dell make which was also wrapped and stitched in a cloth and was given the Mark D. The personal effects of the Respondent were placed in the same trolley bag and which was given the mark E. 5. The Respondent was carrying one hand bag and one rucksack bag. Nothing incriminating was found in the said bags. The travel documents and mobile phones of the Respondent were taken into possession and a recovery memo (Ex. PW9/B) was prepared which was signed by PW-9 and the other witness Mr. Brijesh Kumar. A facsimile of NCB seal was affixed on the recovery memo and the test memo (Ex.PW-7/E). The recovery proceedings which commenced at around 10.15 pm on 11th October 2008 were completed at around 4 am on 12th October 2008. 6. PW-9 tendered his statement (Ex. PW-9/B) pursuant to the notice issued to him under Section 67 of the NDPS Act. PW-11 deposited the case property in the malkhana and returned the seal to the Superintendent. He also submitted a seizure report (Ex.PW-7/D) under Section 57 of the NDPS Act to the superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di and was not able to communicate anything to anyone till an interpreter was provided to him. He had informed the interpreter that the baggage did not belong to him. At the end of the Section 313 statement, the learned trial Court noted: I have explained the entire incriminating evidence to the accused through interpreter Sh. Prabhat Kumar in the language known to the accused and the interpreter has then given the answers and has explained the defence of the accused after understanding the same from him. These proceedings are also duly certified by the interpreter . 11. Further a certificate was appended by the interpreter stating that the incriminating evidence had been explained to the Respondent and as per the answers given by him, the interpreter had explained the Respondent‟s defence to the Court. No witnesses were examined for the Respondent. The judgment of the trial Court 12. By the impugned judgment, the learned trial Court granted benefit of doubt to the Respondent for the following reasons: (i) Although Inspector Manoj Kumar (PW-4) stated that the statement of the Respondent under Section 67 of the NDPS Act could not be recorded because he was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no explanation whether it had been removed by the IO or any other NCB official. In fact there was nothing which satisfactorily proved that the baggage checked in by the Respondent was the same from which contraband was recovered. (vii) There was discrepancy as to the date on which the samples were sent to Central Revenue Control Laboratory ( CRCL‟) for analysis. Shiv Rattan (PW-2) stated that he had taken the samples on 13 th August 2008 and deposited it with the CRCL. The date in the malkhana register also appeared to be corrected from 13th August 2008 to 13th October 2008. The forwarding letter Ex. PW19/D written by PW-7 to CRCL also mentioned the date as 13th August 2008. However, the case of the prosecution was that the samples were sent to CRCL on 13th October 2008. PW-2 was not recalled to explain this discrepancy. Thus, it could not be ruled out that what was recovered from the accused was never sent for analysis. 13. This Court has heard the submissions of Mr. Subhash Bansal, learned counsel for the Appellant and Ms. Nikita Sharma, learned counsel for the Respondent. The Respondent was also present throughout the hearing along with an interpreter. Connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the baggage by the Respondent and therefore, assume significance. Under Section 54 (a) of the NDPS Act, when a person fails to account satisfactorily for being in possession of a narcotic or psychotropic substance, a presumption can be drawn, unless the contrary is proved, that he has committed an offence under the NDPS Act in respect of such substance. 18. If indeed he did not check in any baggage as claimed by him then it is for the Respondent to explain how he was found with the counterfoil of the baggage tag affixed to his ticket or boarding pass. It is also inconceivable that unknown to the Respondent a baggage tag had somehow been generated by the Malaysian Airlines staff in connivance with the NCB officials. There is absolutely no reason for the Malaysian Airlines staff to falsely book a luggage in the name of the Respondent, an international passenger, and affix the counterfoil of the baggage tag on his ticket or boarding pass. The Respondent is clearly not a first- time traveller. Even if he was unable to speak English, he was not unaware of the procedure for boarding an international flight. At international airports language is really not a barrier to obtaining a bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The trial Court therefore erred in holding that there was no evidence to show that baggage checked in was the same from which the contraband was recovered. 21. Ms. Nikita Sharma, learned counsel for the Respondent, referred to the decision in Alamelu v. State 2011 (1) JCC 239 to urge that the mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. The said decision was rendered in a case where the offence was under Section 376 IPC. The discussion was in regard to Section 35 of the Evidence Act concerning a public document. As far as the NDPS Act is concerned, the issue of possession of a narcotic or psychotropic substance is governed by Section 66 (i) read with clauses (b) and (c) thereof which requires the Court to presume the truth of the contents of the documents unless contrary is proved‟. The said decision is therefore, of no assistance to the Respondent. 22. On the other hand, Mr. Subhash Bansal, learned counsel for the NCB referred to the decision in Gian Chand v. State of Haryana (2013) 14 SCC 420 where, in the context of the NDPS Act, the Supreme Court emphasised that once possession is established, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oj Gupta not being examined, the prosecution had to fall back only on the evidence of PW-7 and PW-11 as regards retrieval of the checked-in baggage. In the process, the trial Court failed to notice that PW-9, an independent panch witness, also spoke of the retrieval of the baggage which happened in his presence. 26. PW-9 stated in his cross examination that The luggage of the accused i.e the trolley bag had already gone in for checking. Vol. The said bag was retrieved by the staff of Universal whose name I do not remember. Airline staff had checked the baggage tag with the baggage stubs affixed on the air ticket . 27. In the presence of PW-9 the black trolley bag was opened in the Court. The relevant portion of the deposition of PW-9 in this regard reads as under: At this stage, one Black trolley bag is produced. The same is tied by a Blue plastic thread. There is a paper slip bearing some signatures which is stuck inside the thread. Both the thread and the paper slip are bearing a seal Narcotics Control Bureau, DZU-5. There is also a sticker on the bag bearing the No. 45/08 written on it by a Blue sketch pen. The bag is found to be cut from three sides. According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s staff had checked the baggage tag with its stub affixed on the air ticket. He also clarified that the trolley bag was unlocked. In his examination- in-chief, PW-9 clarified that the officers told the accused through body language as he could not speak Hindi or English regarding the possession of some narcotic substance. 31. This Court is not able to find anything elicited from PW-9 in his cross- examination that renders him an unreliable or untruthful witness. This is perhaps one of those cases where the NCB has been able to associate an independent public witness in the search and get him to depose in the Court. His presence at the spot was unable to be doubted. His signatures figured in the Section 50 notice (Ex. PW-9/A), the recovery memo (Ex. PW-9/B), the boarding passes, the baggage tag, its counterfoil, the e-ticket etc (Ex. PW-9/B-2 to B-11). PW-9 gave a statement under Section 67 and confirmed it in Court. He asserted in cross-examination: I had written my statement of my own regarding the seizure of contraband. 32. The evidence of PW-9 is trustworthy and consistent and has been corroborated by PW-11, the IO. The difference in the time of completion of proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of receipt of sample in the laboratory 13th October 2008 . A separate receipt issued by CRCL (Ex.PW-1/A) shows the date of receipt as 13th October 2008. This receipt mentions that the samples were received along with the forwarding letter dated 13th August 2008. Indeed the forwarding letter (Ex.PW-1/D) written by Mr. R.R. Kumar (PW-7) bears the date of 13th August 2008. However, he has clarified in his deposition in the Court that this was a typographical error. When seen with all other documents, it is apparent that the date mentioned in the said letter was a mistake. 37. Apart from other documents which show that the sample was received by the CRCL on 13th October 2008, there is the evidence of Mr. Bhuvan Ram, Chemical Examiner, CRCL (PW-1) who states that he received two sample packets from Shiv Ratan (PW-2) on 13th October 2008. He has not been cross examined on this statement. If indeed the samples were recovered on 11th October 2008 and despatched soon thereafter and received by the CRCL on 13 th October 2008, the change in the date of the entry in malkhana register was correctly rectified to be read as 13th October 2008 instead of 13th August 2008. 38. There is no e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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