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TMI Blog2018 (4) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... Challenging the above said judgment of conviction and sentence, 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 she was on duty, on 22.05.2008 at about 9.30 p.m. she noticed that the accused was moving in a suspicious manner. When she was about to board Malaysia Airlines Flight MH 181, she was intercepted by P.W.1 and on being questioned, she did not give any proper answer. P.W.1 developed suspicion and so she decided to check the baggage of the accused. Therefore, P.W.1 directed to bring the baggage belong to the accused in the presence of P.W.2, P.W.4 and another officer who were on duty as Supervisor in a Duty Free Shop, available at Anna International Terminal. She was told about her right to be searched before the Gazetted Officer or a Judicial Magistrate and enlightened about Section 50 of the NDPS Act and she declined to accept the offer. 3. On checking, P.W.1 found a bulge in the bottom of red colour VIP stroller zipper suitcase and when it was break opened, she found a flat brown colour tapped packet containing powdered sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baggage Tag, Ex.P.4 Flight Ticket from the accused under a cover of Ex.P.5 mahazar in the presence of witnesses. She recorded the confession statement (Ex.P.6) from the accused and prepared arrest memo (Ex.P.7) and forwarding memo Ex.P.8 and statement of the accused as Ex.P.9. On getting sanction Order (Ex.P.19) for prosecution from the Customs Airport Commissioner, Chennai and on completing her investigation, she filed a complaint (Ex.P.18) against the accused, on the same day, P.W.7 prepared a remand in the presence of independent witnesses. Thereafter, the accused was taken on judicial remand and produced the material objects to the Special Court. 7. At the relevant point of time, P.W.2 was working as Superintendent in the Customs Intelligence Department, has stated that on 22.05.2008 when he was on duty, P.W.1 intercepted the accused and recovered heroin from the accused. P.W.1 recorded the statement from the accused. According to him, the accused in her statement confessed to her guilt and filed a report U/s 57 of the NDPS Act and the same is marked as Ex.P.10. 8. P.W.3 was the then Assistant Chemical Examiner in Customs House Laboratory at Chennai. He has spoken about the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sentences, the accused is before this court with the present criminal appeal. 15. Heard the learned counsel appearing for the appellant and the learned Special Prosecutor appearing for the respondent and also perused the available records. 16. The learned counsel for the appellant would submit that there is a material contradictions on the evidence of P.W.1 and absolutely there is no evidence let in by the prosecution to establish the case as to who brought the M.O.4 suit case; that Ex.P.6 were alleged to have been recorded on 22.05.2008, but the date found in the signature of the Superintendent is 23.05.2008. There is no signature of the accused or witness on the cover of the Ex.P.3; P.W.4 during cross examination admitted that independent witnesses are available at the time of interruption and seizure and Ex.P.6 was not attested by any of the witnesses; the prosecution failed to establish the alleged seizure beyond all reasonable doubt. The learned trial Judge ought to have extended the benefit of doubt in favour of the appellant. 17. Per contra, the learned Special Public Prosecutor would vehemently oppose the criminal appeal and contend that when the appellant was about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial objects. When it was tested, the same was proved to be heroin. P.W.1 further stated that she took samples in accordance with law. On further inquiry, the appellant confessed to have smuggled the same to Malaysia. She also stated that she seized the travel documents and other material objects from the possession of the appellant. P.W.1 recorded the statement from the appellant in the presence of witnesses, in which, the appellant confessed to her guilt. According to P.W.1, on getting sanction for prosecution from the Customs Airport Commissioner, Chennai and on completing her investigation, she filed a complaint (Ex.P.18) on 23.05.2008 against the appellant. 20. P.W.3, the then Assistant Chemical Examination in Customs House Laboratory at Chennai has also stated that during the tests the contrabands were found to contain Di-acityle-morphine. Ex.P.12 is the analysis report. 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 arguments advanced by the learned counsel for the appellant. 21. Section 54 of the NDPS Act creates a presumption that the Accused is guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the appellant at the airport while she was about the board a flight bound for Malaysia. This court does not find any justification in the contention of the appellant that non examination of the person who was allegedly asked to bring M.O.4 suitcase for re-check would cause prejudice to the appellant. In this case, since P.W.1 re-checked the suitcase (M.O.4) in the presence of P.W.2, P.W.4 and P.W.6 and the appellant in her statement to P.W.1 in the presence of P.W.2 confessed to her guilt, the non examination of the person who was asked to bring the suit case for examination by P.W.1 neither caused any prejudice to the appellant in this case nor it affect the credibility of the prosecution version. 23. In view of the foregoing discussions, this court is of the considered view that the prosecution 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 judgment of conviction and sentence rendered by the trial court. 24. Insofar as the sentence is concerned, considering both the mitigating and aggravating circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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