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IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Santini Simone - Appellant
Versus
Department Of Customs - Respondent
Criminal Appeal No. 1088 of 2017; Criminal Miscellaneous (Bail) No. 7501 of 2020
Decided On : 05-10-2020
Whether the provisions of Section 42 of the Narcotics and Psychotropic Substances Act, 1985 (hereafter ''NDPS Act'') were violated. Whether the procedure adopted by the concerned officials for drawing the samples was improper. Whether the prosecution had failed to establish that the case properties and samples were properly stored and were not tampered with.
Fact of the Case:
The appellant, an Italian citizen, was found in possession of 4.235 kgs of charas at the Indira Gandhi International Airport, New Delhi. He was convicted under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act and sentenced to ten years' rigorous imprisonment with a fine of Rs. 1,00,000/-. The appellant challenged the conviction and sentence in the instant appeal.
Finding of the Court:
1. The provisions of Section 42 of the NDPS Act were not applicable in the given facts since the recovery and seizure was done in a public place, as per the settled law laid down by the Supreme Court in Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence, (2003) CriLJ 27 and other precedents. 2. The procedure adopted for drawing samples was not in conformity with the Standing Order 1/1989 issued by the Department of Revenue, Ministry of Finance, Government of India, which was intended to guide the officers to ensure that a fair procedure is adopted in the investigation. 3. The prosecution failed to establish that the samples drawn truly represented the composition of the substance recovered, as the samples were drawn after mixing the contents of all four packets allegedly recovered, without testing the contents of each packet separately. 4. The prosecution failed to establish that the sample sent to the Chemical Examiner and the remnant substance recovered from the appellant's trunk were not tampered with, due to the absence of a clear chain of custody and discrepancies in the record.
Issues: 1. Applicability of Section 42 of the NDPS Act in the given facts. 2. Propriety of the procedure adopted for drawing samples. 3. Adequacy of the prosecution's evidence to establish that the case properties and samples were not tampered with.
Ratio Decidendi: 1. The applicability of Section 42 of the NDPS Act depends on whether the search and seizure was conducted in a public place. If it was conducted in a public place, the provisions of Section 42 would not be applicable, as held in Narayanaswamy Ravishankar (supra) and other precedents. 2. The procedure for drawing samples should be conducted in accordance with the Standing Order 1/1989 issued by the Department of Revenue, Ministry of Finance, Government of India, which lays down guidelines to ensure a fair procedure in the investigation. 3. The prosecution has the burden to establish that the samples drawn truly represent the composition of the substance recovered and that the case properties and samples were not tampered with. This can be done by maintaining a clear chain of custody and ensuring that the samples are properly stored and handled.
Final Decision: The appeal was allowed, and the appellant was acquitted of the offences punishable under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act.
JUDGMENT
Vibhu Bakhru, J. - The appellant has filed the present appeal impugning a judgment dated 14.09.2017, whereby the Special Court convicted the appellant of an offence punishable under Section 20(b)(ii)(C) of the Narcotics and Psychotropic Substances Act, 1985 (hereafter ''NDPS Act'') on account of being found in possession of 4.235 kgs of charas. The appellant was also held guilty of committing an offence under Section 23(c) of the NDPS Act, for attempting to export the illicit substance. By an order dated 21.09.2017, which is also impugned in this appeal, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs. 1,00,000/- and in default of the fine, to undergo simple imprisonment for a further period of four months for committing the offence punishable under Section 20(b)(ii)(c) of the NDPS Act. He was awarded a similar sentence for committing the offence punishable under Section 23(c) of the NDPS Act. Both the sentences were directed to run concurrently. It was further directed that after completion of the aforesaid sentence, the appellant be deported to his native country.
2. It is the prosecution''s case that on 27.02.2012, one Sh. Anil Kumar, who was the Security Official of DIAL (Delhi International Airport Limited), gave information to the Customs Department that something suspicious was revealed during the screening of baggage of one of the passengers. Sh. Pawan Kumar, Air Customs Officer, who was also examined as PW-4, acted on the said information. He also included two independent witnesses, namely, Sh. Vishal Chettri and Sh. Dharmender Singh in further proceedings, which were conducted in the Customs Departure Hall of Terminal-3 of Indira Gandhi International Airport, New Delhi. The baggage in question belonged to the appellant, who is an Italian citizen (holding an Italian Passport No. AA 1955522 issued at Italy). At the material time, the appellant was travelling from Delhi to Bangkok by Flight No. TG 324 and he had been issued a boarding pass for the said flight. He was also issued a boarding pass for Flight No. TG 120 from Bangkok to Chiang Mai. It is stated that while his checked-in baggage was being sent through SOOG-2 belt, the security staff of DIAL (Sh. Anil Kumar) suspected something in his baggage during its screening. He informed the Customs Officer at the Departure Hall regarding the same. The appellant was asked certain questions by the said Customs Officer but he could not answer them. Thereafter, the said Customs Officer took him to the Customs Counter for further examination.
3. The appellant was questioned. Thereafter, Sh. Pawan Kumar (the Customs Officer) served him a notice under Section 50 of the NDPS Act and the contents of the same were also read and explained to him. In addition, a notice under Section 102 of the Customs Act, 1962 was also served on the appellant and the contents of the same were also explained to him. Thereafter, his baggage (a steel trunk) was examined and his personal search was conducted.
4. On searching the appellant, his Passport (Passport No. AA 1955522 issued at Italy), boarding pass dated 27.02.2012 for Flight No. TG 324 from Delhi to Bangkok; boarding pass dated 27.02.2012 for Flight No. TG 120 from Bangkok to Chiang Mai; Check-in Baggage Tag No. TG 707840; One Currency Encashment Certificate dated 16.02.2012 issued by M/s Baluja Forex Pvt. Ltd.; his wallet (containing Rs. 50,732 Indian Currency, 1567 GBP, some Guatemalan Currency and five euro cent); and one Nokia mobile (model no. 1209) were recovered.
5. The Customs Officer examined the checked-in metal trunk before the panch witnesses. The said trunk was opened from the keys provided by the appellant. It contained some clothes and other personal effects of the appellant. They were removed and it was found that the metal trunk had a false bottom. The false bottom and the false side walls of the metal trunk were broken. And, "some hardened substance in dark br
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