P C AGGARWAL Vs. KONAN JEAN

JUDGEMENT

(1.) THE Respondent was acquitted by the Learned Special Judge for offences punishable under Section 21, 22, 23 and 28 of the Narcotics Drugs and Psychotropic Substance Act (in short NDPS Act) by the impugned judgment dated 28th March, 2011. Aggrieved by the impugned judgment the Appellant preferred the leave to appeal petition which was granted vide order dated 20th August, 2011. THE Learned Special Judge had directed the Respondent to furnish bond in terms of Section 437-A Cr.P.C. However, since the Respondent has not been able to furnish the bond, hence he is in custody. Thus, this appeal was taken up for hearing by this Court.

(2.) BRIEFLY the case of the prosecution is that on 13th March, 2007 the Respondent was going to Bangkok by flight No. AI-348 from IGI Airport New Delhi carrying one black colour stroller hand bag of ECHOLACE brand with no check-in baggage. The Respondent was wearing an overcoat during summer season which seemed unusual. Due to suspicion he was intercepted at the customs counter. On inquiry, he replied that he was carrying only US $ 2000 and Indian Rs. 450/- and denied carrying any Narcotics Drugs. Not being satisfied by the reply of the Respondent, the Air Custom Officer Shri Jarnail Singh, the Complainant decided to examine the hand bag and the person of the Respondent in the presence of panch witnesses. Notices under Section 102 of the Customs Act and Section 50 of the NDPS Act were served on the Respondent apprising him of the legal right available to him. The Respondent did not want to get himself examined by a Gazetted Officer or a Magistrate and thus the Air Custom Officer examined him. The overcoat worn by the Respondent revealed some hand stitches, thus it was further examined. On thorough examination of the overcoat, one capsule type substance concealed in the inner side of the overcoat was found and the same was tested on Ionscan Barringer scanner which tested positive for presence of Narcotic Drugs i.e. Heroin and THC. On cutting open the capsule white powdery substance was found wrapped in plastic packing. A small sample of the same gave positive test for Narcotic drug i.e. heroin. On further questioning the Respondent admitted that around 70-75 capsules of similar nature were concealed in his body. Thus he was taken to the hospital where he ejected 77 capsules from 13th March, 2007 to 14th March, 2007 on 4 different occasions in the presence of Doctors on duty and Custom Officers. On 15th March, 2007 in the presence of panch witnesses the aforesaid capsules were cut open and all contained white powdery substance which on testing was found to be heroin. Total weight of the heroin recovered from the Respondent was 14 gms + 1073 gms i.e. 1087 gms. The recovered drug was seized and sealed by the Customs Officers. Samples were drawn and sent to CRCL which reported the samples to be positive for presence of heroin. On a complaint being filed the prosecution witnesses and the accused were examined resulting in the passing of the impugned order.

(3.) IT is contended that the finding of the Learned Special Court that there was discrepancy with regard to marking of the samples in the forwarding letter is erroneous. Three samples were drawn from the first recovery and marked as A1, A2 and A3. Sample mark A1 was sent to CRCL along with test-memo and forwarding letter dated 15th March, 2007. As per the receipt obtained from CRCL, sample A1 had been received. IT is stated that inadvertently in the forwarding letter dated 15th March, 2007 it has been written that sample mark A has been sent instead of sample mark A1. Similarly, with regard to other set of recovery, samples mark B1, B2 and B3 were drawn and sample B1 was sent to CRCL along with test memo and forwarding letter dated 16th March, 2007, however, the same mistake occurred and instead of B1, sample mark A was mentioned inadvertently in the forwarding letter. IT is contended that since the forwarding letters were prepared on the same computer at the same time, this error occurred. However from the testimonies of PW1, PW5, PW7, PW10 and other evidence on record, it is clear that samples A1 and B1 were sent to CRCL and not the sample mark A. Reliance is also placed on Balbir Kaur Vs. State of Punjab AIR 2009 SCC 3036; State of Rajasthan Vs. Daul 2009 (4) JCC Narcotics 206 and Okwun Udensi Vs. Custom 2008 (1) JCC Narcotics 13.