TMI Blog2001 (6) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... pt in a sealed envelope. P. W. 1 discussed the matter with Deputy Director Mr. Kakkar on telephone, who asked him to take action. Thereafter, P. W. 1 went to Departure Module-II near baggage X-ray machine operated by the Air India and kept surveillance. At about 1.45 a.m. accused came with two suitcases in his hands towards X-ray machine. P. W. 1 stopped the accused and asked him his name and other particulars. As the name of the person was same as per the information, P. W. 1 with the help of Junior Security Assistant present at the baggage X-ray machine called two panchas and told them that search of the appellant was to be taken. The appellant was asked to produce his travel documents. The appellant produced his passport and two air tickets. He was then asked to gel his two suitcases, one of maroon colour and another of dark brown colour, screened on the X-ray machine, Mr. Prabhu, Junior Security Assistant, examined as P.W. 3, noticed concealment of tablets in both the suitcases. Thereafter, the accused was taken to nearby security office room along with his baggage and panchas. Accused was asked to open his suitcases, the maroon colour suit case was having combination lock whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd brought him along with his baggage. On his search no contraband was recovered from him. However, his documents were seized. Seizure panchanama was prepared on the spot. It was signed by both the panchas and the accused after supplying copies thereof to them. Both the accused along with the muddemal articles and other articles and documents were brought to N.C.B. office. They were produced before the Deputy Director of N.C.B. P. W. 1 also submitted report of seizure in writing to Deputy Director. The Assistant Director Mr. Rohatgi served summons on both the accused for recording statement under Section 108 of Customs Act and under Section 67 of the N.D.P.S. Act and their statements were recorded. Both the accused were arrested and sent to Azad Maidan Police Station on the same day. 5. On 25.9.1991 one of the samples was sent to Dy. C. C. for chemical analysis with covering letter and forwarding memo. As per the report of the C. A. methaqualone was detected in the sample. The muddemal articles were deposited in the New Customs House Godown under forwarding letter dated 25.9.1991. The two suitcases were deposited in Sewri Godown. The statements of witnesses were record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. The defence of the accused was of total denial and false implication. 8. After considering the entire evidence on record, the Trial Court acquitted the original accused No. 2 by name Philip Joseph but convicted the appellant-original accused No. 1 under Section 22 read with section 8(c) of N.D.P.C. Act and sentenced him to suffer R.I. for 10 years and to pay a fine of ₹ 1 lac in default to suffer further R.I. for three years. He was next convicted for offence under Section 23 read with Sections 28 and 8(c) of N.D.P.S. Act and sentenced to suffer R.I. for 10 years and to pay a fine of ₹ 1 lac in default to suffer further R.I. for three years. He was lastly convicted for offence under Section 135(1)(a) read with Section 135(1)(ii) of Customs Act and sentenced to suffer R.I. for three years and to pay a fine of ₹ 10,000/- in default to suffer further R.I. for one year. All the substantive sentences were directed to run concurrently. The appellant-accused was, however, acquitted of other offences of which he was charged. The said order of convictions and sentences is impugned by the appellant in this appeal. 9. It may be mentioned here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal search before any Magistrate or Gazetted Officer. That is not even the case of P.W. 1. Thus, this case is squarely covered by the above judgments of the Supreme Court and, therefore, the order of convictions and sentences under the provisions of N.D.P.S. Act is liable to be quashed and set aside. 13. This takes me to deal with the question of conviction and sentence recorded against the appellant under the provisions of Customs Act. Ms. Kaushik has tried to challenge the conviction and sentence under the provisions of the Customs Act on the ground that since N.C.B. Officers did not carry out their duties under the provisions of the N.D.P.S. Act, their evidence is suspect and, therefore, the same cannot be relied on as regards the seizure even for the purpose of contravention of the Customs Act. She further contended that there is discrepancy as regards the time when the accused arrived at the Airport. She brought to my notice Exhibit 40 which is the bill of Shalimar Hotel where the appellant was staying. The said bill shows that he left the hotel at 3.05 hours on 23.9.1991 and thus he could not have been intercepted at the Airport at 1.45 a.m. on that night. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im without unnecessary delay to the nearest Gazetted Officer of Customs or Magistrate. The wording of Sub-section 1 of Section 102 is mandatory in nature and is on par with Section 50 of the N.D.P.S. Act which is held to be mandatory. The only difference is that whereas under Section 50 of the N.D.P.S. Act if the accused so requires he has to be searched either in the presence of a nearest Gazetted Officer of any of the departments mentioned in Section 42 of the Act or a Magistrate but under the provisions of Customs Act the accused has to be taken without unnecessary delay to the nearest Gazetted Officer of Customs or Magistrate. As stated earlier in respect of the similar provisions of the N.D.P.S. Act the Apex Court has held that the accused has to be apprised of his right and asked whether he wants his search to be taken in the presence of a Gazetted Officer or a Magistrate and the search, seizure and arrest of the accused without appraisal of his right to the accused becomes suspect and his conviction is liable to be set aside. On the same analogy, the search, seizure and arrest of the appellant under the provisions of the Customs Act without appraisal of his right to the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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