TMI Blog2022 (8) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... d of, in view of its vulnerability of theft, substitution, constraints of proper storage space, and any other consideration, Section 52A to be followed, wherein the inventory of such contraband with details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances to be recorded. By preparing an inventory certifying the correctness and the process to be done in the presence of Magistrate, photographs of the seized drugs to be taken. The contraband tested using Test Kit from each of the 4 packets, which tested positive, weighed around 975 gms., not of bulk quantity, not in lots. Hence, 4 packets made into one homogenized and there after, specimen samples drawn. Likewise, instructions 1.7, is for number of samples to be drawn. The Instructions is that when the package / containers seized together in are of identical size and weight and contents can be harmonized provided each package give identical results on colour test by U.N. Kit - As per the instructions 1.8 numbering of packages and as per instruction 1.9 the seizing officer to prepare the Panchanama on the spot in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 975 gms. Samples taken, marked, remaining substance as well as packing materials also marked. Personal belongings of the persons returned, signatures of the witnesses and passenger obtained in the seized properties, mahazar prepared and signatures were obtained. On 15.10.2012 voluntary statement of Mohamed Yasin Kaja Mohideen recorded, based on the seizure and statement he was arrested at 12.30 hours on 15.10.2012. On chemical analysis, the seized substance tested positive for 'Ketamine', after completion of investigation, complaint filed against the accused under Sections 8(c) r/w.21(c), 23 28 of NDPS Act and under Section 135 of Customs Act, 1962. 3. The prosecution, to prove the case examined P.W.1 to P.W.7, marked Ex.P1 to Ex.P.20 and M.O.1 to M.O.4. On the side of the accused, neither witnesses examined nor documents marked. 4. The contention of the appellant is that the mandatory provision under Section 50(1) not followed in this case. P.W.2, the Seizure Officer, took the appellant to AIU Room, made a search on the body of the appellant, since no recovery made, took the sandals worn by the appellant, after giving the option of search, cut open the sandals, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 57 report is not in compliance. P.W.1 and P.W.2 admit that there is no mention in Ex.P1, who gave option under Section 50 to the appellant. 7. Further, P.W.2 admit that boarding pass is in two parts. It is a known fact that one part would be detained by Airlines and the remaining would be with the passengers. In this case, confirming that the appellant already boarded the Flight. Since the boarding pass torn P.W.2 gives an explanation that while handling Ex.P2 / boarding pass, it got detached from other part. It is only an after thought explanation. P.W.2 Admits that he done spot test using Test Kit, found the contraband answering for 'Methaqualine Hydrochloride', recorded the same in mahazar Ex.P-1 as well as test memo / Ex.P13. On the contrary, the evidence and report of P.W.4, the Chemical Examiner is that the sample, white crystalline powder, did not answer the test for the presence of Methaqualine, however, it answered the test for the presence of 'Ketamine Hydrochloride'. In view of the same, it would be appropriate for the respondent to send the second sample to another laboratory to confirm the report / Ex.P18, which is not done in this case. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mical Analyst admit that he had not furnished the details of chemical examination in his report. P.W.2 is the informant as well as the Investigating Officer in this case. Thus, the prosecution failed to prove the case against the appellant. Further, the petitioner placed reliance on the following judgments for the point of violation of Sections 42, and 50 of the NDPS Act and Standing Orders No.1/88 and 1/89. (i) Chhunna Alias Mehtab Vs State of M.P [(2002) 9 SCC 363]. (ii) Abu Thahir B. Vs Union of India, rep.by Mr. K.N. Mohan [(2019 SCC Online Karnataka 2026)]. (iii) Union of India Vs Abu Thayir B @ Abdu Special Leave Petition ( Criminal) 22749/2020 dated 07.01.2021 (iv) Sarija Banu Alias Janarthani Alias Janani and another Vs State through Inspector of Police [(2004) 12 SCC 266)] 11. The learned Special Public Prosecutor would submit that it is not a case of prior information, but it is a case of chance recovery. P.W.2, who is an Officer in the AIU of Customs, keeping watch over in the Customs area, found the appellant carrying a black back bag, moving in a suspicious manner, after Emigration clearance. Hence, he questioned the accused, at that time, the accused fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was searched and contraband seized. P.W.4 Chemical Examiner; confirms the contraband a psychotropic substance. P.W.5 is the witness to the mahazar; confirms search, seizure and Section 50 compliance . P.W.3, Superintendent of Customs, who obtained Sanction Order / Ex.P15; P.W6 Superintendent Customs Prosecution Unit, who prepared remand report, handed over the same to P.W.2. P.W.7 Deputy Commissioner, Customs, who placed the file before the Commissioner, issued show cause notice. 14. Further, Prosecution relied on the decision of the Apex Court in Girish Raghunath Mehta Vs. Inspector of Customs reported in (2016) 16 SCC 200 and the case of Narayanaswamy Ravishankar Vs. Asst Director, Directorate of Revenue Intelligence reported in (2002) 8 SCC 7 . As regards drawing of samples from the seized contraband. In this case, admittedly, the samples drawn at the spot, the test carried out in all the four packets individually, all confirmed positive. Contraband seized on the spot, and mahazar drawn. Further submitted that the reference made in Mohan Lal's Case with as regard to Section 52A of the Act, is to avoid theft / replacement of seized drugs etc. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was travelling to Malaysia, the same also received. Thereafter, the accused taken to Prosecution Unit, accused arrested, it is recorded in the arrest memo that wife of the accused informed about arrest, appellant produced before the Additional Chief Metropolitan Magistrate, (Economic Offences) Egmore, at his residence, at 10.30 p.m., The Magistrate questioned the accused, remanded him, in the remand report it is recorded as follows Remand on 15.10.2012 at 10.30 p.m., the remand Magistrate passed the remand order. Accused is produced at 10.30 p.m., at quarters. No complaints of ill-treatment. Grounds of arrest is explained. Provision of Legal Aid is stated. Accused is remanded to Judicial custody till 29.10.2012. Accused is directed to be produced before the Principal Judge Court, NDPS Cases, City Civil Court, Chennai, for the hearing 29.10.2012. Properties produced before me are returned with a direction to produce before that court. Send the records. 18. Further, from the remand report it is seen that one Elango, the Intelligence Officer of the Customs received the accused along with the properties and warrant. Thus, the properties produced before the remanding Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to seizure of contraband from his sandals. Thus, the conscious possession of contraband and seizure proved in this case. 21. As regards whether Section 52A of the NDPS Act, and Standing Orders 1/88 and 1/89 are followed, it is to be seen that Section 52-A is for the purpose of disposal of seized Narcotic drugs and psychotropic substances, in the event of the contraband seized is to be disposed of, in view of its vulnerability of theft, substitution, constraints of proper storage space, and any other consideration, Section 52A to be followed, wherein the inventory of such contraband with details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances to be recorded. By preparing an inventory certifying the correctness and the process to be done in the presence of Magistrate, photographs of the seized drugs to be taken. 22. In such cases, the representative sample to be prepared in presence of Magistrate certifying the correctness of the sample drawn and such certificate to be used as primary evidence. The seized contraband is not bulk in nature and susceptible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... container one sample in duplicate should is to be drawn. Normally, it is advisable to draw one sample in duplicate from each package / container in case of seizure of more than one package / container. It is only a advisory. Further, in Instruction 3.3 it is mentioned that the seizing officer shall deposit the drugs fully packed and sealed in godown within 48 hours of seizure. These instructions followed. 26. With regard to other guidelines pertains to disposal of seized contraband, in this case, the contraband is not of huge quantity it is not disposed, contraband produced before remanding Magistrate during remand initially, thereafter deposited in the godown on the orders of Magistrate, subsequently, produced before the Special Court for NDPS Cases, for forwarding the sample to the Scientific Officer, for chemical examination. P.W.4 / Scientific Officer confirms the receipt of samples from the Court, which seals intact. P.W.4 further confirms that the test report and remnants handed over to P.W.2 who produced the same before the Special Court. The contraband produced before the Special Court, only on the direction of the Remanding Magistrate, the properties were kept in the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court.'' 29. For the reasons aforesaid, the Criminal Appeal is partly allowed, the conviction recorded u/s 8(c) r/w 21(c) 28 of NDPS and sentence imposed on the appellant to undergo 10 years R.I. is confirmed. The order for payment of fine of Rs.1,00,000/- for each of the offence upheld, but an order that in default of payment, the appellant shall undergo R.I., for 2 years is reduced to R.I. for 1 month. The default sentence for all offence modified to one month alone. To that extent, the appeal filed by the appellant is allowed. If the appellant has undergone substantive sentence of R.I. for 10 years and default sentence of R.I for 1 month, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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