Decided on December 05,2007

CUSTOMS Respondents


- (1.) THIS appeal has been preferred by the appellant against the judgment dated 22nd February, 2002 and order on sentence dated 6th March, 2002 whereby the appellant was convicted under Section 21 (c) and Section 23 r/w 28 of NDPS Act and was sentenced to undergo RI for 12 years and a fine of Rs. One lac under each provision. Both the sentences were to run concurrently.
(2.) THE brief facts relevant for the purpose of deciding this appeal are that on 17th November, 1998 the appellant, a Nigerian Citizen was to go to Abidjan via Adis Abada by ET Airlines. He was present in the departure wing of IGI Airport for catching ET Flight No. ET 619. On suspicion, PW 1 Custom Officer asked him if he was having any narcotics drugs in his possession to which he replied in negative. On this, PW 1 called two panch witnesses including PW 5 and he in their presence a notice under Section 50 NDPS Act was served upon him and he was asked to identify his baggage. The accused identified two suitcases as his baggage. His hand bag as well as his two suitcases were searched. Nothing incriminating was found in the hand bag. However, on search of one of his suitcases, nine cans of foodstuff were found having paper wrappers. These cans were opened and they were found containing nine packets of fine powdery substance. A pinch of powder from each of these packets was tested with the help of Field Testing Kit and they gave positive test for presence of heroin. Personal search of the accused was also conducted but nothing incriminating was found. The air ticket, boarding pass and baggage tags were seized along with recovered powder which weighed 2. 456 kgs. Two representative samples of 5 gms each were drawn from each of the nine packets and sample parcels were prepared. Rest of the powder was sealed separately. Panchnama was drawn and the accused was arrested. The case property was deposited in Customs Warehouse on 17th November, 1998. Samples were sent to CRCL and the report of the CRCL gave positive result for heroin. Report under Section 57 NDPS Act was sent to the superior officers. The accused was sent to face trial and after trial of the accused, he was convicted and sentenced as stated above. The accused has assailed the judgment of the Trial Court on the ground that the Trial Court failed to appreciate the evidence properly. There were contradictions in the statements of witnesses of which benefit should have been given to the accused but the same was not done. There was no compliance of Section 55 of NDPS Act; samples were not kept in safe custody. The evidence of malkhana mohar shows that the samples were deposited in malkhana on 31st March, 1999. There was no evidence that between 17th November 1998 and 31st March, 1999, the samples were kept in safe custody and the possibility of tampering with the samples cannot be ruled out. There was violation of provision of Section 55 of NDPS Act.
(3.) THE second ground taken during the arguments is that the appellant was arrested at 3. 00 am on the night intervening 16th and 17th November, 1998, he was sent to judicial custody at around 5. 00 pm on 17th November, 1998. The evidence shows that test memo was prepared on 18th November, 1998 i. e. on the next date of seizure. The seal was collected back on 18th November, 1998 for preparing the test memo. The Investigating Officer kept the seal with himself from 17th November 1998 to 18th November, 1998 leading to inference that the tampering of the samples cannot be ruled out.;

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