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2013 Supreme(Del) 1340
High Court of Delhi
SUNITA GUPTA, J.
Mohd. Dawood
Versus
Department of Customs
Crl. A. No. 708 of 2010
Decided on : 11-10-2013
For the Appellant:Arpit Batra, Udit Jain, Advocates.
For the Respondent:Pramod Bahuguna, Ms. Kavita, Advocates.
The admissibility of confessional statements under Section 67 of the NDPS Act and the requirement for compliance with safeguards under Section 50 of the NDPS Act.
Headnote:
NDPS Act - Challenge to judgment and order of sentence - Sections 21(c) and 23 (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 - Summary of Acts and Sections: Sections 21(c) and 23 (c) of NDPS Act - The court discussed the interpretation and application of Section 50 of the NDPS Act, the requirement for compliance with safeguards, and the admissibility of confessional statements under Section 67 of the NDPS Act.
Fact of the Case:
A complaint was filed against the appellant for possession of heroin at the airport. The appellant denied the allegations and claimed trial. The prosecution presented evidence, and the appellant challenged the judgment on various grounds.
Finding of the Court:
The court found that the appellant was aware of the proceedings and that the safeguards under Section 50 of the NDPS Act were observed. The court also held that the confessional statement made by the accused was voluntary and truthful, and there was no need for further corroboration.
Issues: The issues included non-compliance with Section 50 of the NDPS Act, the examination of panch witnesses, and the admissibility of the confessional statement.
Ratio Decidendi: The court held that the safeguards under Section 50 of the NDPS Act were observed, and the confessional statement made by the accused was voluntary and truthful, thus requiring no further corroboration.
Final Decision: The court dismissed the appeal and upheld the judgment and sentence passed by the Special Judge.
Sunita Gupta, J.
1. The challenge in this appeal is to the judgment and order of sentence dated 20th February, 2010 and 26th February, 2010 passed by learned Additional Sessions Judge-cum-Special Judge, NDPS cases, Dwarka Courts, New Delhi in Sessions Case No. 37/3/2008 under Sections 21(c) and 23 (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘NDPS Act’) arising out of complaint filed by the customs titled as Sh. U.R. Gupta, Air Customs Officer, Indira Gandhi International Airport (‘IGI Airport’), New Delhi v. Mohd. Dawood convicting the appellant and sentencing him to undergo rigorous imprisonment for ten years along with fine of
Rs.1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for six months.
2. A complaint was filed by Sh. U.R. Gupta, Air Customs Officer, against the appellant on 29th October, 2004 on the allegations that on 6th May, 2004 appellant, holder of Afghan Passport No. TR 025317 issued at Kandhar on 13th April, 2003, had arrived by Ariana Afghan Airlines, flight No. FG 322 at the arrival hall of IGI Airport, New Delhi. After clearing immigration and after collecting his checked in baggage he walked through green channel and came to the exit gate and was about to leave the customs area, when the complainant became suspicious about his movement and asked him to go to the examination table in the arrival hall. After completing the formalities the officers of customs examined two checked in bags of the appellant and found 2.680 Kgs of heroine. Charge for offence under Sections 21(c) and 23 (c) of NDPS Act was framed against the appellant, to which he pleaded not guilty and claimed trial.
3. Prosecution examined 11 witnesses in order to substantiate its case. Statement of accused was recorded under Section 313 Code of Criminal Procedure, 1973 (‘Cr.P.C.’) whereby all the incriminating evidence which was against him was put to him. He denied the same and claimed to be innocent. He denied that he was explained the contents of notice Ex.PW1/B under Section 50 of NDPS Act in Persian language. According to him, his signatures were obtained on various written as well as blank documents. No contraband was recovered from him or his baggage. He further stated that he retracted from his statement immediately from prison. It was a false, fabricated and manipulated case against him. He did not prefer to lead any defence evidence. After meticulously examining the entire material available on record, the learned Special Judge by impugned order convicted the appellant and sentenced as stated above, which has been assailed by the appellant by filing the present appeal.
4. I have heard Mr. Arpit Batra, learned counsel for the appellant and Mr. Pramod Bahuguna, learned counsel for the respondent and have perused the record.
5. Learned counsel for the appellant has basically challenged the impugned order on the following grounds:-
(i) The appellant was convicted without considering the fact that he was unaware of any other language than Persian. According to the prosecution, one Sayed Mohd. Ashraf Hofiyani joined as interpreter and he was present during the proceedings. He was the person who had interpreted the contents of the documents to the appellant. However, despite the fact that he was the star witness of the prosecution, he was not examined for the reasons best known to them. Non examination of the said witness has caused prejudice to the appellant. Reliance was placed on Hasan Imam Inamdar v. The State of Maharashtra 2003 (4) MHLJ 682 and Ramaswamy v. State of M.P. 2005 CRLJ 1603.
(ii) One of the panch witness was not examined by the prosecution which also caused a serious dent to the prosecution case.
(iii) PW10 Deepak, who is stated to be one of the panch witnesses, has been examined but his deposition is totally shaky and unreliable.
(iv) The appellant has retracted the alleged statement made by him. On the basis of retracted statement convi
