ASST. COMMISSIONER OF CUSTOMS Vs. ELLIS EDWARD JOSEPH

JUDGEMENT

(1.) The Customs Department seeks leave to appeal against the judgment dated 8th December 2010 passed by the learned Additional Sessions Judge ('ASJ') in S.C. No. 22/3/2008 acquitting the Respondent of the offence under Sections 21(c) and 23 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act'). The case of the prosecution was that on 20th May 2003 the Respondent, a British passport holder, was intercepted at 00:20 hours in the security lounge at the departure hall of the IGI Airport, New Delhi. He was stated to travel by Flight No. KL 872 from New Delhi to Amsterdam. The Respondent was found carrying one black colour hand bag and on enquiry it was disclosed that he was carrying two checked-in baggages for which the KLM Airlines had issued two baggage tags Bearing Nos. KL 476422 and KL 476423.

(2.) In the presence of two panch witnesses Prafull Nayak and Pradip Kumar, the Respondent was taken to the baggage belt area where he identified two black colour zipper bags bearing brand name 'East-Pak'. Both bags were brought to the Customs Counter. On the air ticket of the Respondent, the two baggage tags were found affixed. When asked whether he was carrying any contraband, he answered in the negative. He purportedly declined to be searched in the presence of a Gazetted Officer.

(3.) On search of both the checked-in baggages in the presence of panch witnesses, a thick sheet of foam was found on the top which when removed revealed some packets wrapped with brown adhesive tape kept in layers. In the black bag bearing Tag No. 476422, there were 27 such packets kept in two lots of 14 and 13 packets respectively. These were marked A and B. After further removing the layer of packing of transparent poly bag, a black colour semi solid substance was recovered from each lot of Mark A and Mark B and kept in two different transparent poly bags. From the second black bag bearing Tag No. 476423 another 27 packets in two lots of 14 and 13 packets were recovered. These were marked C and D. These were also found containing the black colour semi solid substance. The total weight of the substance recovered was 53.5 Kgs. From each lot i.e. A, B, C and D, three samples of 20 grams each were drawn and representative samples were taken out separately. When tested with the Field Testing Kit, they gave positive result for the presence of hashish. The recovered substance was seized under panchnama of the same date i.e. 20th May 2003. 7000 Euros were also recovered upon a personal search of the Respondent. The statement of Respondent under Section 67 of the NDPS Act was recorded in which he is supposed to have admitted to the ownership of the narcotic substance recovered from his checked-in baggages. He is purported to have stated that the semisolid black colour substance was given to him by one Mr. Jan and that he was aware of the fact that carrying, keeping and exporting narcotics substance was an offence in UK, Holland as well as in India. The statements of the two panch witnesses i.e. Praful Kumar Nayak and Pradeep Kumar were also stated to have been recorded under Section 67 of the NDPS Act.