C P VASHIST Vs. ASHFAQ

JUDGEMENT

(1.) THE present appeal has arisen from the judgment dated 22. 03. 1997 passed by the learned Additional Sessions Judge, New Delhi in Sessions Case no. 36/1997 whereby the respondent, who was charged for the offences under Sections 132 and 135 (1) (a) of The Customs Act, 1962 and Sections 18 and 28 read with Sections 8 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("ndps Act" in short), was acquitted of all these offences.

(2.) BRIEF facts necessary for the disposal of this appeal are that on 28. 01. 1988 respondent Ashfaq was booked with Thai Airways Flight No. TG-935 for going to Bangkok. At the Customs Counter at I. G. I. Airport, New Delhi he declared that he was carrying US Dollars 500 only as FTS. While he was proceeding towards the Security Check he was intercepted by the Customs officer (PW-1) and on being asked as to whether he was carrying any Indian or foreign currency or any narcotic drug the respondent replied that he was carrying US dollars 500 only. Thereafter, the respondent was asked if he had any baggage on which he informed that his checked-in suitcase was lying in the departure Hall. He was then asked to bring his checked-in baggage at the Customs counter which he did. PW-1 called two officials of Thai Airways (PW-3 and PW-4)on duty at the Airport so that the suit-case of the respondent could be searched in their presence. On PW-1 entertaining some suspicion, base of the suitcase was pierced with the help of a sharp edged knife and some oily substance suspected to be Narcotic Drug weighing 3. 750 kgs. was recovered. The respondent could not produce any documentary or other evidence for its lawful export. The said black coloured oily substance was then seized under Section 110 of the Customs Act, 1962 and the NDPS Act and three representative samples of the substance were taken in separate packets and were sealed with the seal of Customs Department and rest of that substance was kept in a separate cardboard box and the same was also sealed with the Customs seal. These proceedings were recorded in a panchnama (Ex. PW-1/c) by the Customs Officer (PW-1 ). On being questioned by the Customs officer (PW-1) about the substance recovered the respondent showed his ignorance and claimed that the said suit case did not belong to him and that the same had been booked in his name and on his ticket by one Avinash Chander Dhawan who was still at the Airlines Counter for getting his clearance done. It is the further case of the prosecution that thereafter the respondent was taken to the Airline counter and he was asked to identify the person named by him and then on the pointing out of the respondent that Avinash Chander was also apprehended.

(3.) THE respondent as well as Avinash Chander were then produced before Sh. R. D. Gupta, (PW-2), who on that night was the Air Customs Superintendent and was also on duty at the Airport when these two persons were apprehended, and he recorded their separate statements under Section 108 of the Customs Act, 1962 (Ex. PW-2/a and Ex. PW-2/b ). In his statement made under Section 108 of the customs Act the respondent claimed that the foreign currency in his possession was provided to him by Avinash Chander after purchasing it from Connaught Place in his (Ashfaq"s) name and further that when Avinash Chander booked the suit case in his name he had become suspicious but had kept quiet since Avinash had paid for his Bangkok trip. Avinash Chander in his statement under Section 108 admitted that he had come to the Airport for going to Bangkok along with Ashfaq and one Nanak Ram. He disclosed that he had prepared a plan with Nanak Ram that he (Nanak Ram) would procure opium from Bareilly and get it packed in a suitcase in such a way that no one would come to know about it and he (Avinash Chander)would arrange three tickets from Delhi to Bangkok. The opium was to be taken to bangkok for a person named Devi who had promised to pay twice the price that was paid for its purchase and the money was to be shared by him (Avinash Chander)and Nanak Ram. Accordingly he arranged three tickets for Bangkok and Nanak Ram brought opium to Delhi concealed in a suitcase and left the same at his house for being taken to the airport in the evening. It was further stated that Ashfaq was chosen to carry the opium to Bangkok as he was going abroad for the first time and the Custom Officers would not suspect him and in case he would get caught he (Ashfaq) alone would be held responsible as goods would stand booked in his name. Avinash Chander in his statement made to the Customs Officer also stated that Ashfaq was not aware that they had hidden opium in the suit case and that he was under the impression that he was being taken for a leisure trip by them. Avinash Chander further disclosed that he and Ashfaq reached the airport in a taxi and deliberately sent Ashfaq late for customs clearance thinking that his baggage would not be searched properly in case he goes late for clearance.