9911796707
TMI Blog2018 (4) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... for each offence in default to suffer rigorous imprisonment for six months for each default and further sentenced to undergo imprisonment for three years with a fine of Rs. 10,000/- in default to undergo rigorous imprisonment for one month for offence under Section 135(1)(a)(ii) of The Customs Act, 1962. Challenging the above said judgment of conviction and sentences, the accused is before this court with this criminal appeal. 2. The case of the prosecution in brief is as follows:- During 2008, P.W.1 was working as Intelligence Officer at Chennai Airport. While he was on duty, on 29.04.2008 at abut 10.30 p.m. he noticed that the accused moving in a suspicious manner towards security check area. When she was about to board Jet Airways Flight 9W032 bound for Kualalumpur, she was intercepted by P.W.1 and on being questioned, she did not give proper answer. P.W.1 developed suspicion and so he decided to check the luggage of the accused which were already checked-in by the authorities. Therefore, P.W.1 directed P.W.4 to bring the "checked-in luggage" of the accused and checked in the presence of P.W.4 and another lady officer who were on duty as Security Supervisor in Jet Airways. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was tested with the field test kid, it answered that it was heroin. He has further stated that he took two samples of each weighing 5 grams from each of the four polythene covers M.O.5 to 12 respectively and packed and sealed with customs seal NO.198 and marked them as 1(a) to 4(a) and 1(b) to 4(b) respectively. The remaining bulk heroin were packed. They are M.O.1 to 4. He seized M.O.13 black colour suit case; passport (Ex.P.2), Boarding pass (Ex.P.3), Luggage Claim slip (Ex.P.4) from the accused under a cover of Ex.P.1 mahazar in the presence of witnesses. On the same day, he prepared a remand in the presence of P.W.2. He, thereafter, forwarded the accused to the court for judicial remand. He also forwarded the material objects to the court. 7. P.W.2 was the Intelligence Officer at Chennai Airport during the relevant point of time. She has stated that on 29.04.2008 when she was on duty at Chennai Airport, the accused was brought before her by P.W.1 to record her statement. She accordingly recorded the statement from the accused. The accused was holding a Thailand Passport. According to her, the accused in her statement confessed to her guilt. Subsequently, on the very same day, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrabands and other properties. Ex.P.13 is the remand report. 13. When the all the incriminating materials that appeared in the evidence let in by the prosecution witnesses were put to the appellant before the trial court, she, in general, denied the same as false. However, she did not choose to examine any witness nor did she mark any document on her side. Her defence is a total denial of the prosecution case. 14. Having considered all the above, the learned trial judge convicted the appellant for offence under Sections 8(c) r/w 21(c), 28 and 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 135(1)(a)(ii) of The Customs Act and sentenced her to imprisonment besides fine as stated in the first paragraph of this judgment. Challenging the conviction and sentences, the convict is before this court with the present criminal appeal. 15. I have heard the learned counsel appearing for the appellant and the learned Special Prosecutor appearing for the respondent and also perused the records carefully. 16. The learned counsel for the appellant would submit that the alleged confession cannot be said to be a substantive piece of evidence and without there being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 29.04.2008 she was intercepted at Security Check point in Chennai International Airport by the respondent after she was found to have smuggled 4.900 Kgs of heroin. She was, accordingly, booked under Section 8(c) r/w 21, 28 and 29 of the NDPS Act. Later, on she was put on trial for charges under Sections 8(c) r/w 21(c), 28, 29 of NDPS Act and Section 135(1)(a)(ii) of The Customs Act. 20. P.W.1, who was the Intelligence Officer during the relevant point of time, has spoken about the suspicion developed against the appellant in her activities at the time when she was about to board a Jet Airways Flight 9W032 bound for Kualalumpur and therefore, he intercepted her and on being questions, she did not give proper answer and on further suspicion, he decided to check the luggage of the accused which were already checked-in by the authorities. During such re-check in the presence P.W.6, the Superintendent of Customs and P.W.4 and another lady officer, who were on duty as Security Supervisors in Jet Airways at Airport, she was found to have smuggled 4.900 kgs of contraband by concealing the same in her suitcase. He seized the contraband and the other material objects. When it was tested, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at during the tests the contrabands were found to be of heroin. Ex.P.9 is the analysis report in this regard. Though the learned counsel for the appellant contended that the prosecution has failed to prove the alleged seizure, this court does not find any justification in the said argument. 24. Section 54 of the NDPS Act creates a presumption that the Accused is guilty of an offence, if he fails to satisfactorily account for possession of contraband. Section 35 states that in a prosecution under the NDPS Act, it would be presumed that the Accused has the culpable mental state necessary for the offence. It is needless to point out that before drawing presumption under Section 34 and Section 35 of the NDPS Act, the prosecution must establish a prima-facie case and which the appellant is permitted to rebut. In the instant case, the prosecution has discharged its initial burden. Whereas the appellant in this case has not rebutted this statutory presumption. Therefore, the submission of the appellant that the appellant was not in conscious possession of the same is liable to be rejected. The physical possession of the contraband which was admittedly recovered from the checked-in baggag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant. Whether or not any prejudice has been caused to the accused is a question of fact to be determined in each case. In this case, since P.W.1 re-checked the suitcase (M.O.13) in the presence of P.W.4 and P.W.6 and that the appellant in her statement to P.W.2 in the presence of P.W.6 confessed to her guilt and in pursuance of her subsequent statement made on the very same day in the presence of P.W.5, cellphone and SIM cards were recovered from the appellant , non examination of the person who was asked to bring the suit case for examination by P.W.1 could not have caused any prejudice to the accused in this case nor does it affect the credibility of the prosecution version. 26. In view of the foregoing discussions, this court is of the considered view that the respondent has proved its case beyond all reasonable doubts and that the learned trial judge was right in holding that the appellant was guilty of charges and that this court does not find any illegally or irregularity in the same warranting interference at the hands of this court. 27. Insofar as the sentence is concerned, considering both the mitigating and aggravating circumstances of the case, this court i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
