HOFFMANN ANDREAS Vs. SURINDER SINGH CHADHA

JUDGEMENT

(1.) THIS is a criminal appeal and has been directed against the judgment and order dated 13th June, 1997 passed by the learned Additional Sessions Judge, Amritsar, who convicted the appellant for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- or in default of payment of fine, the accused was directed to undergo rigorous imprisonment for a period of one year for allegedly having been found in possession of 1600 grams of charas on 28th April, 1996, when the accused was trying to cross the Attari Border for going to Pakistan. The case property, including the motor bicycle bearing registration No. L1-HH4, was also confiscated to the State, as the Charas was being carried in the said conveyance.

(2.) INSPECTOR of Customs, Land Customs, Station Attari Road, Amritsar, filed a criminal complaint before the Court of Chief Judicial Magistrate, Amritsar under Section 18 read with Section 23 of the NDPS Act against the accused on the allegations that on 28th April, 1996 at about 12 Noon the appellant was apprehended at Land Customs, Attari Road, Amritsar by Inspector S.S. Chadha (P.W.1) of the Customs Department. 1600 grams of Charas wrapped in a plastic packet was recovered from the tool box of the motor bicycle, referred to above. The accused could not produce any licence or permit for the possession of the Charas. A sample of 20 grams of charas was drawn and was sealed. The remaining charas was separately sealed and the entire case property was taken into possession. The sample of the charas was sent to the office of the Director, Forensic Science Laboratory, who also found the contents as charas. The investigation aspect was completed and after obtaining the report (Exhibit PH) from the Director, Forensic Science Laboratory, the complaint (Exhibit PG) was filed in the Court of Chief Judicial Magistrate, Amritsar. I will deal with in detail the relevant contents of the complaint and the evidence led by the prosecution in the subsequent portion of the judgment, but at this stage I can only say that vide order dated Ist August, 1996 the Chief Judicial Magistrate committed the accused to the Court of Session in order to face the trial. Vide order dated 12th September, 1996 the trial Court framed the charges under Sections 20 and 23 of the NDPS Act against the appellant. The charges were read over and explained to the accused, to which he pleaded not guilty and claimed the trial. In order to prove the charges, the prosecution examined three oral witnesses, Shri Surinder Singh Chadha, Inspector Customs, who conducted the recovery of the charas; Shri J.M. Bhatia, Superintendent Customs as P.W.2; and Smt. Surinder Kaur Mayal, Inspector Customs, as P.W.3. The relevant documentary evidence, which has been on the file is as follows :- (i) Exhibit PA - Recovery-cum-Seizure Memo. which would show that charas weighing 1600 grams along with one motor-bicycle, one camera and some personal effects were taken into possession, besides the passport of the accused. In the remarks column of Exhibit PA one factor has come on the file that the alleged charas was tested at the spot with the drug testing kit itself, which answered positive for charas. (ii) Exhibit PB - The Panchnama which was prepared at the spot in the presence of Shri Roop Lal Bindra and Sh. Manjit Singh besides the Superintendent Customs, showing that charas from the motor bicycle was recovered and the copy of one seizure memo. was also supplied to the accused. (iii) Exhibit PC is the arrest memo. which indicates that the appellant was informed that he had committed the offences under Section 135 of the Customs Act, 1962, and Section 23 of the NDPS Act besides Section 20 thereof. Copy of this memo. was also handed over to the appellant. (iv) Exhibit PD is the Jama Talashi memo. signed by the aforesaid witnesses Sarvshri Roop Lal and Manjit Singh. (v) Exhibit PE is the statement of the accused which was recorded at the spot by the Customs Authorities, where the appellant had testified as follows :- "I was further asked whether I possessed any illegal goods in my baggage or concealed in my motorcycle to which I replied in the negative. Thereafter, the Customs Officer called two independent witnesses and the search of my baggage/motor cycle was started in the presence of two independent witnesses and myself and before the Superintendent Customs...." The other part of the statement of the appellant as contained in Exhibit PE I need not incorporate. (vi) Exhibit PF is the forwarding letter dated 4th May, 1996 issued under the signatures of the Assistant Commissioner to the name of the Chemical Examiner for the despatch of the sample of the charas through Shri S.S. Chadha P.W.1. (vii) Exhibit PH is the report of the Chemical Examiner, who has certified the contents of the sample as charas.

(3.) THE two independent witnesses associated during the course of search - Sarvshri Roop Lal and Manjit Singh - were not examined by the prosecution and they were given up as having been won over by the appellant.