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Advocates
  • Satish Aggarwal
  • Seema Gulati
Judges
  • M.S.A Siddiqui, J.
Acts
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Citation Codes
Equivalent Citations
citation codes
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Advocates
  • Satish Aggarwal
  • Seema Gulati
Judges
  • M.S.A Siddiqui, J.
Acts
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Smart Summary

Summary of the Opinion — Appeal Against Conviction under the NDPS Act

Factual and Procedural Background

This appeal challenges the order of conviction and sentence dated 26.2.1997 by the Additional Sessions Judge, New Delhi in S.C. No. 45/95. The appellant, a Spanish national, was intercepted on the night intervening 23rd and 24th September 1995 at Indira Gandhi International Airport, New Delhi, by Inspector Customs S.S. Jasan (PW 1) while she was leaving on Flight No. BA-1142. A search of her personal luggage (Ex. P11) resulted in recovery of 10.976 kilograms of heroin (diacetyl morphine). Representative samples were sent for chemical analysis and found to be heroin. The trial court convicted the appellant under Sections 21/28 read with Section 23 of the Narcotic Drugs and Psychotropic Substances Act and sentenced her to rigorous imprisonment for ten years and a fine of rupees one lac (with default imprisonment for one year). The appellant appealed; M.S.A. Siddiqui, J. delivered the judgment dismissing the appeal and confirming the conviction and sentence.

Legal Issues Presented

  1. Whether the mandatory requirements of Section 50 of the NDPS Act were complied with and if non-compliance rendered the seizure and recovery illegal.
  2. Whether the provisions of Section 55 of the NDPS Act and the identity/chain of custody of the seized articles and representative samples were established so as to rule out tampering.
  3. Whether the confessional statement made by the appellant (Ex. PW 2.A) was voluntarily made and admissible.

Arguments of the Parties

Appellant's Arguments

  • Non-compliance with Section 50 of the NDPS Act: the mandatory requirements were not fulfilled, making the recovery and seizure illegal.
  • Non-compliance with Section 55 and defects in establishing identity/chain of custody: the test memo was not prepared at the time of recovery, creating a possibility of tampering with samples and thereby entitling the appellant to the benefit of doubt.
  • The confessional statement (Ex. PW 2.A) was obtained by force; the appellant retracted the statement and alleged coercion in her examination under Section 313 Cr.P.C.

Prosecution's / State's Position

  • The contraband was recovered from the appellant's personal baggage (Ex. P11) and not from her person; therefore the statutory requirement to offer search in the presence of a Gazetted Officer or Magistrate (Section 50) was not required in the manner urged by the appellant. The prosecution also asserts that the appellant was given the option for such a search but declined it.
  • Evidence of Inspector Customs S.S. Jasan (PW 1), Superintendent Customs A.M. Sidharthan (PW 8) and the interpretator Ravi Kumar (PW 2) establish the seizure, sealing, drawing of representative samples and storage: two representative samples of ten grams each were drawn, sealed with Customs Seal No. 8 with paper slips signed by customs officials, two panch witnesses and the appellant; remaining heroin sealed with Customs Seal No. 9; seized articles deposited in Customs godown.
  • The field testing kit indicated the recovered powder was heroin; the confessional statement (Ex. PW 2.A), in the appellant's handwriting in Spanish and accompanied by an English translation, unequivocally admitted recovery of 10.976 kgs of heroin from her bag.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
State of Punjab v. Baldev Singh, J.T 1999 (4) SC 595 Supporting the proposition that the safeguard in Section 50 applies when a person is to be searched; recovery from baggage may not invoke the same mandate as a personal search. The court relied on this precedent to reject the appellant's contention that non-compliance with Section 50 rendered the recovery illegal, observing the contraband was recovered from baggage and not from the person.
Kalema Tumba v. State of Maharashtra, JT 1999 (8) SC 293 Addressing challenges to the evidentiary value of a cryptic chemical report and voluntariness/knowledge related to statements recorded under statutory provisions; rejecting contentions that such defects automatically preclude reliance on the evidence when other supporting evidence exists. The court excerpted and relied on these observations to support its view that the confessional statement and chemical testing (combined with corroborative evidence) could be relied upon and that challenges to the cryptic nature of the chemical report or voluntariness of the statement did not undermine the prosecution case in the circumstances.

Court's Reasoning and Analysis

The court proceeded through the following principal steps of analysis, based on the evidence on record:

  1. Section 50 challenge: The court held that Section 50's safeguard (offer of search in presence of a Gazetted Officer or Magistrate) is principally directed at searches of a person. Since the contraband was recovered from the appellant's personal baggage (Ex. P11) and not from her person, the court found it unnecessary to treat Section 50 as being breached in the manner contended by the appellant. The court relied on State of Punjab v. Baldev Singh for this proposition.
  2. Section 55 / chain of custody and identity of samples: The court reviewed the testimony of PW 1 (S.S. Jasan) and PW 8 (A.M. Sidharthan) concerning interception, identification of the booked zipper bag (Ex. P11), baggage tag (Ex. P1), opening of the bag in presence of panch witnesses, recovery of seven polybags containing 10.976 kgs heroin and sealing procedures. Although the test memo was prepared on 26.9.1995 (two days after seizure), the court relied on the existence of paper slips appended on sealed samples (Ex. PW15/1-7 and Ex. PW20/1-7), their signatures by the appellant, panch witnesses and officers, and the receipt (Ex. PW 5.A) to conclude that the intact paper slips excluded the possibility of tampering with the samples. On that basis the court rejected the submission that the delay in preparing the test memo made tampering a plausible possibility.
  3. Voluntariness and admissibility of confessional statement: The court noted that the confessional statement (Ex. PW 2.A) was in the appellant's handwriting in Spanish, accompanied by an English translation, and was made on 24.9.1995. The appellant only retracted the statement on 31.1.1997 and, until then, had not complained of use of force by customs officers. The court found no record substantiating the appellant's allegation of coercion and consequently concluded the statement was voluntarily made. The court also cited observations from Kalema Tumba to address related challenges (such as the probative value of chemical reports and voluntariness issues) and to support reliance on the appellant's statement alongside other evidence.
  4. Overall assessment: Given the seizure, sealing and sample-handling evidence, the field test result, the confessional statement, and the absence of substantiated allegations of coercion or tampering, the court concluded that the prosecution proof was satisfactory and that the trial court had correctly convicted the appellant.

Holding and Implications

Holding: The appeal is dismissed and the appellant's conviction and sentence are confirmed. The core ruling is: APPEAL DISMISSED; CONVICTION AND SENTENCE CONFIRMED.

Implications: The direct consequence is that the appellant's conviction under Sections 21/28 read with Section 23 of the NDPS Act, and the sentence of ten years rigorous imprisonment with a fine of rupees one lac (or default one year rigorous imprisonment), remain in force. The opinion applies established principles concerning the application of Section 50 to searches of persons versus baggage, the sufficiency of procedural seals and paper slips to rebut tampering allegations, and the circumstances in which confessional statements may be treated as voluntary. The judgment does not purport to lay down a new legal precedent beyond applying existing authorities to the facts of this case.

End of summary — based exclusively on the provided opinion text.

Show full summary ...

    Ruiz Guerrero Dolores v. Customs .

    M.S.A Siddiqui, J.— This appeal is directed against the order of conviction and sentence dated 26.2.1997 passed by the Additional Sessions Judge, New Delhi in S.C No. 45/95 convicting the appellant under Sections 21/28 read with Section 23 of the Narcotic Drugs and Psychotropic Substances Act (for short ‘the Act’) and sentencing her to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac or in default to suffer further rigorous imprisonment for one year.

    2. On the night intervening 23rd and 24th September, 1995, the appellant, a Spanish national, was intercepted at the Indira Gandhi International Airport, New Delhi by the Inspector Customs S.S Jasan (PW 1) while she was leaving for Matrid by Flight No. BA-1142. The search of her personal luggage (Ex. P 11) resulted in recovery of 10.976 kgs. of Hereoin. After completing the procedural formalities, representative samples of the contraband were sent for chemical analysis, which on analysis were found to be diacetyl morphine (Heroin) commonly known as Brown Sugar.

    3. The prosecution mainly relied on the evidence of Inspector Customs S.S Jasan (PW 1), A.M Sidharthan (PW 8) and the Interpretator Ravi Kumar (PW 2) besides the confessional statement (Ex. P2.A) of the appellant. The learned Additional Sessions Judge, on appreciation of evidence on record, accepted the prosecution case and convicted and sentenced the appellant as indicated above.

    4. Learned Counsel for the appellant contended that in the instant case the mandatory requirements of Section 50 of the Act were not complied with and, therefore, the evidence regarding recovery and seizure of the contraband should be regarded as illegal. This contention deserves to be rejected because only when a person of an accused is to be searched then he is required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate. As per prosecution case, the contraband in question was recovered from the appellant's personal baggage (Ex. P11) and not from her person and, therefore, it was not necessary to make an offer for her search in the presence of a Gazetted Officer or a Magistrate as required by Section 50 of the Act. [State of Punjab v. Baldev Singh, J.T 1999 (4) SC 595].

    5. It was next contended that the provisions of Section 55 of the Act were not complied with and further identity of the articles alleged to have been seized from the appellant and the representative samples examined by the Chemical Examiner has not been established by the prosecution. Inspector Customs S.S Jasan (PW 1) materially corroborated by the Superintendent Customs A.M Sidharthan (PW 8) testified that on the night intervening 23rd and 24th September, 1999, the appellant was intercepted in the baggage hold area of the departure hall of IGI Airport, New Delhi and her luggage in black zipper bag (Ex. P 11) was taken in possession on suspicion. The appellant identified her zipper bag (Ex, P 11) which was found booked. Baggage tag (Ex. P1) fixed on it tallied with the claim tag affixed on her air ticket. The appellant was given the option of being searched in the presence of a Gazetted Officer or a Magistrate but she declined the said offer. Thereafter the appellant opened the bag (Ex. P11) and on search seven poly bags containing 10.976 kgs. of Heroin were recovered from it in the presence of the Panch Witnesses, namely, Sukhdev Singh and Ms. Richho vide seizure memo Ex. PW 1.A. The Customs Superintendent A.M Sidharthan (PW 8) deposed that the contraband was tested with the Field Testing Kit and it revealed that the powder recovered from the said zipper bag was Heroin. It has also come in the evidence of the Inspector Customs S.S Jasan (PW 1). Interpretator Ravi Kumar (PW 2) and the Customs Superintendent A.M Sidharthan (PW 8) that two representative samples of ten grams each were drawn and each sample was sealed with the Customs Seal No. 8 with a paper slip signed by the Customs Officials, two Panch witnesses and the appellant. Thereafter, the remaining Heroin was also sealed on the spot with the Custom Seal No. 9 over a paper slip signed by the aforesaid persons. The seized articles were deposited in the Customs Godown.

    6. Inspector Customs S.S Jasan (PW 1) further testified that the sealed packets were handed over to the Superintendent Customs A.M Sidharthan (PW 8) on 24.9.1995 and the test memo was filled in on 26.9.1995 Learned Counsel for the appellant contended that no plausible explanation has been offered by the prosecution as to why the test memo could not be prepared at the time of the alleged recovery of the contraband. According to the learned Counsel, in view of this serious lacuna, the possibility of tampering with the sample cannot be ruled out and the benefit arising out of such doubtful situation must necessarily go to the appellant. Learned Additional Sessions Judge devoted a substantial part of the impugned judgment to deal with the aforesaid submissions advanced on behalf of the appellant. According to the learned Additional Sessions Judge, the paper slips Ex. PW15/1-7 and Ex. PW 20/1-7 had been appended on the sealed samples marked 18 to 78 deposited with the CRCL by Shri C.L Meena (PW 5) alongwith the test memo Ex. PW 1.C vide receipt (Ex. PW 5.A) and these paper slips were duly signed by the appellant, the Panch witnesses and the Inspector Customs S.S Jasan (PW 1) and that being so, the aforesaid circumstances clearly exclude the possibility of any tampering with the samples. In my opinion, on a consideration of the evidence of S.S Jasan (PW 1) and Mr. A.M Sidharthan (PW 8), I am not inclined to take a different view. The reason being that the aforesaid paper slips appended on samples were found intact and the sample cannot be tampered with without tampering with these paper slips. Therefore, there is no force in the contention of the learned Counsel for the appellant that the prosecution has failed to rule out the possibility of tampering with the samples in question.

    7. That apart, it has come in the evidence of Superintendent Customs, A.M Sidharthan (PW 8) that the appellant had made the voluntary statement (Ex. PW 2.A) before him. The said confessional statement (Ex. PW 2.A) is in the handwriting of the appellant and it is in Spanish lauguage. The confessional statement (Ex. PW 2.A) is accompanied by an English translation thereof. In her aforesaid statement, she has unequivocally admitted that 10.976 kgs. of Heroin was recovered from her bag (Ex. P 11). In her examination under Section 313, Cr.P.C, the appellant had stated that the statement (Ex. PW 2.A) was obtained by force. It is significant to mention that the statement (Ex. PW 2.A) was made on 24.9.1995, and the appellant retracted it on 31.1.1997 Till then, she had not complained against any Officer of the Customs Department as regards the alleged use of force in obtaining the said statement. In short, there is nothing on the record to substantiate the said allegations of the appellant. That being so, the learned Additional Sessions Judge has rightly concluded that the appellant had voluntarily made the confessional statement (Ex. PW 2.A) before Superintendent Customs A.M Sidharthan (PW 8). Thus, the appellant had herself admitted in her statement (Ex. PW 2.A) that the aforesaid contraband was seized from her possession. In this context, I may usefully excerpt the following observations of Their Lordships of the Supreme Court in Kalema Tumba v. State of Maharashtra, JT 1999 (8) SC 293:

    “5. It was next contended that the report which was given by the Chemical Analyser was a cryptic report, and therefore, no reliance could have been placed upon it. It was submitted that as it contained no details of the test, it had no evidentiary value. As rightly pointed out by the High Court the appellant had himself admitted in his statement under Section 108 of the Customs Act that it was Heroin. Moreover, in this case we have evidence of the officers of the Narcotic Control Bureau also who had tested the substance found from the appellant. Therefore, this contention is also rejected.

    6. It was then urged that no reliance should have been placed upon the statement recorded under Section 108 of the Customs Act as it was not made by the appellant voluntarily and he did hot know what was written in it when he had signed it. The submission was that the appellant does not know English language. He knows only French language. In his examination under Section 313, Cr.P.C, he had stated that the statement was obtained by force and that he was beaten by the officers of Narcotic Control Bureau. He had not stated at that time that he did not know English. Apart from the evidence of the officers of the Narcotics Department there is evidence of an employee of the Jewel Hotel where the appellant had stayed from 16th November, 1990, who was proved some of the entries made in English by the appellant himself in the register maintained by the hotel. The Panchnama, also contains words ‘received copy’ written by the appellant. The said statement of the appellant was recorded in 1990. He retracted it in 1994. Till then he had not complained against any officer as regards the alleged beating or use of force nor he had stated that he did not know English. Therefore, this contention also cannot be accepted.”

    8. For the foregoing reasons, I am of the opinion that the learned Additional Sessions Judge has rightly relied upon the evidence of aforesaid witnesses and the statement (Ex. PW 2.A) of the appellant in convicting the appellant. The appellant's conviction and sentence, therefore, will have to be confirmed.

    9. In the result, the appeal is dismissed and the appellant's conviction and sentence are confirmed.

    Appeal dismissed.
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    Comments

    Ruiz Guerrero Dolores v. Customs .
    (Dec 15, 1999)