Asst. Commissioner of Customs vs Ellis Edward Joseph

Dr. S. Muralidhar, J.�The Customs Department seeks leave to appeal against the judgment dated 8th December 2010 passed by the learned Additional Sessions Judge (''ASJ'') in S.C. No. 22/3/2008 acquitting the Respondent of the offence under Sections 21(c) and 23 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (''NDPS Act''). The case of the prosecution was that on 20th May 2003 the Respondent, a British passport holder, was intercepted at 00:20 hours in the security lounge at the departure hall of the IGI Airport, New Delhi. He was stated to travel by Flight No. KL 872 from New Delhi to Amsterdam. The Respondent was found carrying one black colour hand bag and on enquiry it was disclosed that he was carrying two checked-in baggages for which the KLM Airlines had issued two baggage tags Bearing Nos. KL 476422 and KL 476423.

In the presence of two panch witnesses Prafull Nayak and Pradip Kumar, the Respondent was taken to the baggage belt area where he identified two black colour zipper bags bearing brand name ''East-Pak''. Both bags were brought to the Customs Counter. On the air ticket of the Respondent, the two baggage tags were found affixed. When asked whether he was carrying any contraband, he answered in the negative. He purportedly declined to be searched in the presence of a Gazetted Officer.

On search of both the checked-in baggages in the presence of panch witnesses, a thick sheet of foam was found on the top which when removed revealed some packets wrapped with brown adhesive tape kept in layers. In the black bag bearing Tag No. 476422, there were 27 such packets kept in two lots of 14 and 13 packets respectively. These were marked A and B. After further removing the layer of packing of transparent poly bag, a black colour semi solid substance was recovered from each lot of Mark A and Mark B and kept in two different transparent poly bags. From the second black bag bearing Tag No. 476423 another 27 packets in two lots of 14 and 13 packets were recovered. These were marked C and D. These were also found containing the black colour semi solid substance. The total weight of the substance recovered was 53.5 Kgs. From each lot i.e. A, B, C and D, three samples of 20 grams each were drawn and representative samples were taken out separately. When tested with the Field Testing Kit, they gave positive result for the presence of hashish. The recovered substance was seized under panchnama of the same date i.e. 20th May 2003. 7000 Euros were also recovered upon a personal search of the Respondent. The statement of Respondent under Section 67 of the NDPS Act was recorded in which he is supposed to have admitted to the ownership of the narcotic substance recovered from his checked-in baggages. He is purported to have stated that the semisolid black colour substance was given to him by one Mr. Jan and that he was aware of the fact that carrying, keeping and exporting narcotics substance was an offence in UK, Holland as well as in India. The statements of the two panch witnesses i.e. Praful Kumar Nayak and Pradeep Kumar were also stated to have been recorded under Section 67 of the NDPS Act.

The representative samples were sent to the Central Revenues Control Laboratory (''CRCL'') for chemical analysis. The report dated 6th June 2003 of the CRCL confirmed that the sample sent was charas.

On completion of the investigation, charges were framed against the Respondent under Sections 21(c), 23 and 28 of the NDPS Act. 11 witnesses were examined for prosecution. A statement was made by the learned Special Public Prosecutor (''SPP'') for the Customs before the trial Court on 23rd September 2009 that he was dropping one of the panch witnesses i.e. Pradeep Kumar as he had been won over by the accused. Babu Ram Kasana (PW-11) whose examination-in-chief had been recorded was also dropped.

When the evidence was put to the Respondent under Section 313 Cr.P.C., he denied it and claimed that he was falsely implicated. The Respondent examined himself as DW-1. He claimed that when he checked in, he had three baggages, none of which contained hashish. He claimed that somebody had approached him and asked for his air ticket, boarding pass and passport and another person took him to a small room where he was given beating and told that electrical cables would be used against him. He claimed that the Customs officials were violent with him and he was in the same room from midnight of 20th May 2003 till 9 pm of the same day. He was thereafter kept in the airport lock-up. He also claimed that he was compelled to write a statement some part of which was true and some part of which was not and he was compelled to do so by three different officers. He claimed that on 21st May 2003, he was forced to sign many papers with the date of 20th May 2003. He had stated before the Magistrate before whom he was produced that he was treated well by the officers because he was frightened that he would be taken back to the airport and would be again mistreated. He claimed to have been inflicted injuries on his right shoulder for which he received treatment from the jail doctor. He produced the documents received from the jail authorities regarding his treatment and marked them as Ex. DW-1/G-1 to G-5 and DW-1/H and 1/J. He stated that five months after he was jailed, he made a retraction application in his own handwriting in three pages (Ex. DW-1/K).

In his cross-examination by the SPP, the Respondent stated that he did not make any complaint against the Customs Officers who dictated to him the reply (Ex. DW-1/P-1).

The trial Court on an analysis of the evidence acquitted the Respondent after coming to the following conclusions:

(i) No material was brought on record to show that on what basis the SPP had made a statement that one of the panch witnesses i.e. Pradeep Kumar, had been won over by the accused particularly since the accused was in judicial custody throughout. While no adverse inference could be drawn against accused, an adverse inference could be drawn against the prosecution under Section 114(g) of the Evidence Act for not producing the panch witnesses to corroborate the testimony of PW-1 regarding recovery of the contraband and arrest of the accused.

(ii) There were contradictions in the testimony of PW-1 on whether the Respondent had been taken to the baggage belt area to identify the checked in baggage or whether the checked in baggage was brought to the Customs room for identification by the Respondent. In his cross-examination on 18th February 2010, PW-1 stated that the airline staff had brought the checked in baggage of the Respondent and there it was identified by the Respondent. However, PW-1 could not state the names of the person who were present with him when the Appellant was intercepted; he could not disclose the names of the panch witnesses; he could not tell the name of the Customs officers who had gone to collect the panch witnesses and from where they were brought. PW-1 was also not aware as to who had conducted the test at the spot regarding the nature of the substance recovered.

(iii) PW-1 also could not state the time consumed for testing or completing the formalities. He could not disclose the name of the Customs Officers who recorded statement of the Respondent under Section 67 of the NDPS Act.

(iv) The Respondent is stated to have produced keys of his two checked in baggages and they were used to open them but the keys were not produced in the Court. There was no evidence as to where the keys had gone after the baggages were opened.

(v) A perusal of the entry under which the recovered articles were deposited in the malkhana revealed overwriting.

(vi) The prosecution had failed to lead positive evidence to show that the substance produced before the Court was actually the same that was recovered from the possession of the Respondent. During the examination-in-chief of PW-1, one red colour polybag was produced in an unsealed, torn condition, even though PW-1 claimed that when he had seized the case property it was sealed with Customs Seal No. 9A. This created doubts whether the substance produced in the red colour polybag was the same as that recovered from the possession of the Respondent. Further the panchnama (Ex. PW-1/E) recorded that the substance recovered was in a semi solid form whereas what was produced in the Court was in the form of sticks. No evidence was produced to corroborate the testimony of PW-1 whose evidence in any way is not convincing.

(vii) The Respondent had been able to substantiate the plea that he was inflicted injuries while in custody of the Customs officers and, therefore, reliance could not be placed on his so-called ''confession''.

(viii) The prosecution had not observed the instructions regarding drawing of test samples. The evidence showed that the sample packets were never opened in the CRCL for examination and, therefore, it could not be proved that the report given by the CRCL pertained to those very samples.

Having heard learned counsel for the parties and having gone through the entire trial Court record, the Court is unable to find any error having been committed by the trial Court in its analysis of the evidence or in the conclusions reached by it.

Learned counsel for the Petitioner was unable to explain how one of the panch witnesses was simply given up by stating that he had been won over by the accused when there was no basis for such statement by the SPP. Also the address of the other panch witness was not traceable. This raised serious doubts on whether the recovery and seizure took place in the presence of the said two panch witnesses. Having recorded that the seizure of the contraband from the checked-in baggages took place in their presence, the failure to produce them as witnesses would result in an adverse inference being drawn against the prosecution under Section 114(g) of the Evidence Act.

Further, the evidence of PW-1 is indeed riddled with inconsistencies which have not been sufficiently explained by the prosecution. Also, it does appear that the Respondent was able to establish that his statement recorded under Section 67 of the NDPS Act was not voluntary.

In the circumstances, the trial Court was justified in granting the Respondent the benefit of doubt and acquitting him of the offences with which he was charged. No grounds have been made out for grant of leave to appeal. The petition is dismissed. The trial Court record be sent back forthwith.