R RAVI CHANDRAN Vs. DJIBRILLA DIALLO

JUDGEMENT

(1.) THIS appeal has been filed against the judgment dated 28. 05. 1997 passed by the Designated Court under the Narcotic Drugs and Psychotropic Substances act, 1985 ("ndps Act" in short) in Sessions Case no. 64/1996 whereby the respondent was acquitted of the charges under Sections 21 and 23 r/w Section 28 of the NDPS Act solely on the ground of non-compliance of the mandatory provisions of Section 42 of the NDPS Act at the time of apprehension and search of the respondent and his baggage at Indira Gandhi International Airport, Delhi on 28/29-2-1996 when he had gone there to fly to London.

(2.) THE facts leading to the prosecution of the respondent herein as noticed by the learned trial court in para nos. 1 to 7 of the impugned judgment are as under:-"on the intervening night of 28/29. 2. 96 in the International Departure Hall of I. G. I. Airport New Delhi while proceeding on BA Flight No. 142 and on his search for having been found to be in illegal and unlawful possession of 1704 gms. diacetyl morphine/heroin and thereby prima facie guilty of an offence punishable U/s 21 of the NDPS Act as also his attempt to export the said contraband out of the country and thereby punishable for an offence U/s 28 read with 23 of the said act. 2]. The case of the prosecution is that after the accused had been cleared by the customs he was intercepted by PW-1 and the accused was carrying three hand bags but had no checked in luggage. Two panch witnesses PW-2 Viresh and PW-4 Shri Ram Avtar were asked to join the proceedings and the accused on being questioning was noticed not to understand the English language as he was a french national and one Sanjay, a custom officer brought PW-3 Shri Gopi Nath, the interpreter who could understand both the English and the French language. 3]. In the presence of the two panch witnesses the provisions of Sec. 50 of the NDPS Act were explained by the interpreter PW-3 to the accused about his option of having his search of the person and the bags conducted before a gazetted Officer or a Magistrate vide Ex. PW1/a to which vide endorsement Ex. PW1/b he stated that he has no objection if his search is conducted by any custom officer. As per the version of the prosecution the contents of the requirement of the notice U/s 50 of the NDPS Act had been explained to the accused through PW-3. 4]. That on the search of the yellowish brown printed zipper bag Ex. P-5 which was opened with the key Ex. P-13 produced by the accused, it revealed a blue coloured bucket with a white lining Ex. P-6 which on opening contained six plastic containers of a body lotion which when cut opened contained a polythene packing each except one container which contained two polythene packets one big and one small. In all seven poly packets were recovered from the six plastic containers of which six contained a brownish powder and one packet contained whitish powder which when tested with the field testing kit gave positive indication for heroin. The total weight of the heroin recovered from the 7 packets weighed 1704 gms. 5]. Two representative samples of 5 gm. each were drawn from each of the 7 poly packets; in all 14 samples were drawn which were subsequently placed in a polythene pouch each and kept in a brown paper envelope and sealed with the seal no. 08 of the Air Customs over a paper slip bearing the sign. of the accused, the two panch witnesses and PW-1. The remaining contraband was also sealed by putting it back in the six plastic containers and then again in the blue coloured bucket Ex. P-6 as also the wrappers and stitched with a cloth and sealed in the similar fashion over a paper slip bearing the sign. of the aforestated persons. The personal effects of the accused i. e. the air ticket Ex. P-1, Boarding Card Ex. P-2 and the three receipts of hotel Roxy Ex. P-3/1-3 were also seized and sealed in a similar fashion. 6]. The panchnama Ex. PW1/c was prepared on the spot. 7]. The case property including one set of sample was deposited with the sdo Arrival vide detention receipt Ex. PW1/d to Ex. PW1/f. The second set of sample which were to be sent to the CRCL for analysis was deposited by PW-1 with pw-5 Shri Lovdev, the Supdt. The statement of the accused was recorded in his handwriting in French through PW-3, the interpreter in the presence of PW-5 and is Ex. PW3/a and the English translation of the same is Ex. PW3/b. The samples were sent for analysis through PW-5 and the report of the CRCL is Ex. PW6/a testing the drawn samples positive as heroin. "

(3.) ON the aforesaid allegations the respondent was charged and tried by the learned trial Court for the commission of offences punishable under Sections 21 and 23 r/w Section 28 of the NDPS Act. The prosecution had examined six witnesses in all to prove the aforesaid allegations levelled against the respondent. The respondent had at the time of recording of his statement under section 313 Cr. P. C. denied the entire prosecution case and pleaded false implication. He had pleaded that this was a false and fabricated case foisted upon him because of his having fought with custom officers and slapping one of them.