CUSTOM Vs. JORAWAR SINGH MUNDY

JUDGEMENT

(1.) The present appeal is directed against the judgment of the learned Trial Court dated 30th April, 2011 whereby the Respondent was acquitted of the charges under Sections 21 (c) and 23 read with Sections 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short ,,the NDPS Act).

(2.) AFTER hearing the parties, leave to appeal was granted by this Court on 4th January, 2013 and the appeal was set for hearing for today as the Respondent is a resident of USA.

(3.) LEARNED counsel for the Respondent contends that since personal search of the Respondent was taken before the search of the baggage, Section 50 of the NDPS Act was required to be complied with. Reliance is placed on Dilip and another vs. State of Madhya Pradesh, AIR 2007 SC 369 and Kishan Chand vs. State of Haryana, decided on 13th December, 2012. It is contended that when the punishment is harsh then meticulous compliance of the necessary provisions is required to be carried out and the principle of substantial compliance has no application. Ex. PW3/A the alleged notice under Section 50 of the NDPS Act does not inform the Respondent of his legal right to be searched before a gazetted officer or Magistrate. Further the same is a computerized print out thus showing that the raiding team was aware that the Respondent was allegedly carrying the contraband or at least they had an apprehension regarding the same. Further PW9 the Investigating Officer has categorically stated that the Respondent was not searched after notice under Section 50 of the NDPS Act was served on him as he had already been searched after serving notice under Section 102 of the Customs Act. PW3 and PW12 the panch witnesses have not supported the prosecution case. Thus the only witness for recovery is PW9 the Investigating Officer. Even PW9 in his testimony states that he believed that the version of the Respondent that Sukhjinder Singh had given him the bags for delivery in USA was correct. Thus the Respondent was not in conscious possession of the contraband which is further fortified by the fact that in both suitcases clothes of young girl were recovered. The granddaughter of PW11, whose clothes were sent through the Respondent, was not examined as a witness. Further the defence had clearly demonstrated before the learned Trial Court that keeping the seals intact the plastic container containing the alleged contraband could be removed from the pullanda. Thus the case property was not properly secured and the learned Special Judge committed no error in acquitting the Respondent.