The Superintendent of Customs Head Quarters Preventive Unit vs Mohammed Zulkar Ali Bin Abdul Mazjid

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for the respondent.

The appellant is the Superintendent of Customs in Head Quarters Preventive Unit, Bangalore and he is aggrieved by the acquittal of the respondent for offences punishable under Section 8(c) read with Section 20(b)(ii)(c), 23(c) and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the NDPS Act'', for brevity).

The facts briefly stated are as follows:

It is the case of the prosecution that the complainant had received information from the Directorate of Revenue Intelligence, Bangalore on 16.01.2009 to the effect that on 16.01.2009, a Singapore national named Mohammed Ali Abdul Majid had attempted to smuggle Hashish to Hongkong on a flight from Bangalore on 17/18.01.2009. Accordingly, the complainant along with his team of officers is said to have proceeded to the Bangalore International Airport at Devanahalli and kept vigil about the said information from 17.01.2009. On 19.01.2009, the above said suspect had booked a ticked to travel to Hongkong from Bangalore International Airport, Devanahalli through Dragon Air Flight No. KA 153 and had checked in his baggage at the air port. It transpires that the accused was intercepted and in the presence of mahazar witnesses on 19.01.2009 at 23-45 hours, was taken into custody in the international departure Hall of the Bangalore International Airport and he had by that time completed his immigration formalities and was proceeding towards security check for boarding the aircraft. The passport of the accused was checked and after ascertaining his name as Mohammed Zulkar Ali, Son of Abdul Majid and that he was proceeding to Hongkong and at the request of the Superintendent-PW 2, the accused handed over the passport issued by the Republic of Singapore, his air ticket and boarding pass as well. The Superintendent informed the accused that he intended to check his baggage and the accused had no objection to the same and after obtaining the bag identification tag from the accused from the checked-in baggage, the ground handling staff of the air port was requested to secure-the checked-in baggage and the accused having been informed that the Superintendent had the power to conduct the search of the person and his baggage under the provisions of the NDPS Act, proceeded to search his baggage through the Assistant Commissioner of Customs, international Airport and on opening up the inner lining of the bag checked-in by the accused, the bottom portion contained brown colour substance in a transparent plastic pouch. A test was conducted on the said substance with the help of narcotic drug detection kit carried by the complainant and it answered to the test for ''hashish'', a narcotic drug. The said substance, which weighed about 6.9 kgs. was seized on the suspicion that it was ''hashish'' and thereafter, further proceedings was taken against the accused in accordance with law. Ultimately, the charges having been framed against the respondent, he had pleaded not guilty and claimed to be tried.

The prosecution thereafter, examined 7 witnesses and marked several documents and after examining the accused under Section 313 of Code of Criminal Procedure, 1973, the Court below after hearing both the parties had framed the following points for consideration:

Whether the prosecution has proved beyond all reasonable doubt that:

(a) On 21.01.2009 at 2-40 hours in Bangalore International Airport, Devanahalli accused was found in possession of 6.9 kgs of Hashish without any pass or permit and thereby committed the offence under Section 8(c) punishable under Section 20(b)(ii)(c) of N.D.P.S. Act?

(b) That on the said date, time and place accused was attempted to illegally export 6.9 kgs of Hashish from Bangalore to Hong Kong after collecting 1000 dollars from one Shah for transporting the same and thereby committed the offence under Section 8(c) read with Section 23 of N.D.P.S. Act?

(c) That on the said date, time and place accused without any pass or permit issued by competent authority was attempting to export 6.9 Kgs of Hashish to Hong Kong through Dragon air flight and thereby committed the offence under Section 8(c) read with Section 28 of N.D.P.S. Act?

What order?

The Court below answered the points in the negative and acquitted the accused. It is that which is under challenge in the present appeal.

The learned counsel for the appellant would seek to contend that the judgment of the Court below is perverse and is not in accordance with law. It is contended that the Court below has overlooked the scope and effect of the provisions of the NDPS Act and has failed to consider that Section 43 was attracted and not Sections 41 and 42 of the NDPS Act. The Court proceeded to hold that there was non-compliance with the said provisions and therefore, the proceedings were initiated. It is pointed out from pages 31 to 50 of the judgment that the Court has failed to distinguish the facts of the case as regards the application of Section 43 and also to take into account that Sections 41 and 42 of the NDPS Act were not attracted. The oral evidence on behalf of the complainant has been overlooked. In that, it is on record that the receipt of information by way of fax by the Additional Commissioner viz., PW 1 in the evening at 6.00 p.m. on 16.01.2009 from the Directorate of Revenue Intelligence, Bangalore, the question of recording such information by PW 1 at Bangalore did not arise since, it was information received from Directorate of Revenue Intelligence, Bangalore and it was accordingly conveyed to the Commissioner of Customs Head Quarters Preventive Unit. Several decisions cited at the bar have been completely over looked by the trial Court in not appreciating the case of the prosecution to emphasize that the circumstance of the case would have attracted only Section, 43 and not Sections 41 and 42 of the NDPS Act.

Insofar as the distinguishing feature to demonstrate that it was Section 43 of the NDPS Act that was attracted, the court below has overlooked the judgment in the case of Ajmer Singh Vs. State of Haryana, . However, has chosen to apply other decisions which were contrary to the case canvassed by the complainant.

Insofar as the further finding of the court below that the substance recovered on interception of the accused was not from his person and from his checked-in baggage, has proceeded to consider possession, vis-a-vis conscious possession and has in the process, overlooked the several decisions cited by the complainant as laid down in the cases of Megh Singh Vs. State of Punjab, , State of Punjab Vs. Lakhwinder Singh and Another, and in the case of Madan Lal and Another Vs. State of Himachal Pradesh, .

The learned counsel would further contend that the order of acquittal passed by the court below is illegal and would have to be set-aside for the following reasons:

In that, the court below has accepted the contention of the prosecution that there is no compliance of Section 50 of the NDPS Act. The court below has held that the voluntary statement given under Section 67 of the NDPS Act cannot be said to be involuntary or that it was recorded in coercion. The court has held at Paragraph 34 at page 67 of the judgment that Exhibit P-17 is a voluntary statement given by the accused and it would not go against the prosecution. It has also held in the following terms:

"This apart, there is no concrete evidence adduced by the accused to show that Exhibit P-4 mahazar was concocted."

Though the court has held that the mahazar was proved, the voluntary statement of the accused was also proved, the court then having proceeded to acquit the accused, would run against the grain and is clearly illegal.

In the above facts and circumstances, the primary ground on which the accused has been acquitted is on the footing that there has been non-compliance with Sections 41 and 42 of the NDPS Act. In this regard, the law is well-settled that compliance with the said sections is mandatory and any lapse in that regard would vitiate the entire proceedings. Therefore, the short point for consideration in the present appeal as contended by the learned counsel for the respondent would be firstly whether Sections 41 and 42 were attracted and whether there was due compliance with Sections 41 and 42, of the NDPS Act.

It is not in dispute that the complainant, the Superintendent of Customs had received information from the Directorate of Revenue Intelligence of a suspected individual seeking to transport ''Hashish'' from Bangalore to Hong Kong and it is on that information that the Superintendent had proceeded to keep vigil from 17.01.2009, in order to intercept the accused and thereafter recovered a narcotic substance from the checked-in baggage of the accused as sought to be made out by the prosecution. There is no dispute that the complainant had not recorded the fact that he had received information of a suspected attempt to transport ''hashish'' and that he was proceeding to the Airport in order to intercept the suspect. This was a mandatory requirement. It is also to be noticed that in the event that for reasons of urgency, if it was not possible for the Officer to record the said fact immediately, he should at least do so within 72 hours. But, in the present case on hand, it is evident that there is no such record made. Hence, in the light of the decision of the Apex Court, namely the three-judge Bench decision in the case of Karnail Singh Vs. State of Haryana, , where the legal position is well-settled as regards the mandatory requirement of compliance with the procedure prescribed under Sections 41 and 42 of the NDPS Act and the non-compliance of the same vitiating the said proceedings and this has been followed and applied in a recent judgment of the Supreme Court in the case of Sukhdev Singh Vs. State of Haryana, . Hence, on the primary ground that there has been non-compliance with the mandatory provision of law, the case sought to be made out by the appellant on the merits of the case, while it is apparent on the face of it that there was non-compliance with Sections 41 and 42 of the NDPS Act, which has also been found by the Trial Court, there is no warrant to address the case on any other aspect when there is failure of a mandatory compliance. Therefore, there is no merit in this appeal and the appeal is dismissed.

It is also stated by the learned counsel for the respondent that though the respondent has been acquitted, he is a foreign national and without custody of his Passport and Identity Card which are produced and marked in the appeal as Exhibits P-8 and P-9, the respondent has been unable to leave India for his country and his repeated attempts to secure the documents have been stone-walled and the respondent has been suffering great hardship, being unable to secure employment in India or to proceed to his country. He is under the mercy of the Singapore Embassy in India, till date. Therefore, a fervent plea is made that Exhibits P-8 and P-9 be released in his favour forthwith.

The Registry is accordingly directed to maintain a copy of the said documents and release the originals in favour of the respondent forthwith. The operative portion of this order be furnished to the counsel for the respondent immediately.

The counsel for the appellant makes an oral plea for stay of the present judgment in order to enable him to file an appeal and therefore seeks that the documents now ordered to be released be retained till the expiry of the period of appeal. Given the circumstances that there is no merit in the appeal, the question of staying the judgment does not arise. It is for the appellant to take steps, in accordance with law. The oral application for stay is rejected.