The main legal point established in the judgment is the importance of establishing compliance with statutory provisions in the seizure and handling of contraband, and the consideration of the accused's circumstances in sentencing.

JUDGMENT

(Prayer: Criminal Appeal filed under Section 374 (2) r/w.Section 36-B of NDPS Act, 1985, to set aside the conviction and sentence rendered by the Special Judge, II Additional Special Judge for NDPS Act, Chennai, dated 27.11.2018 in C.C.No.13 of 2013 in R.R.No.25 of 2012 in O.S.No.52 of 2012-INT on the file of the Deputy Commissioner of Customs, Prosecution Unit (AIR) Chennai and acquit the accused.)

This Criminal Appeal arising out of the Judgment passed by the learned Special Judge, II Additional Special Court under NDPS Act, Chennai, dated 27.11.2018 in C.C.No.13 of 2013.

2. On 15.10.2012, at about 3.45 Hrs., Intelligence Officer Sivakumar called upon two independent witnesses, informed them that they have to be present at the AIU Room to witness the examination of hand baggage of Mohamed Yasin Kaja Mohideen, under the provision of Narcotic Act. After the witnesses agreed to the same, in presence of the witnesses in the AIU room, the said Mohamed Yasin Kaja Mohideen questioned regarding possession of any contraband / prohibited goods. He replied in negative. Not convinced with his reply, Mohamed Yasin Kaja Mohideen found to be nervous, the Officers informed Mohamed Yasin Kaja Mohideen about Section 50 of the Act in Tamil, on search, the Officers found transparent polythene packets containing white colour granules in the sandals worn by him, the substance tested positive for Methaqualine, the total weight of the substance is 975 gms. Samples taken, marked, remaining substance as well as packing materials also marked. Personal belongings of the persons returned, signatures of the witnesses and passenger obtained in the seized properties, mahazar prepared and signatures were obtained. On 15.10.2012 voluntary statement of Mohamed Yasin Kaja Mohideen recorded, based on the seizure and statement he was arrested at 12.30 hours on 15.10.2012. On chemical analysis, the seized substance tested positive for -Ketamine-, after completion of investigation, complaint filed against the accused under Sections 8(c) r/w.21(c), 23 & 28 of NDPS Act and under Section 135 of Customs Act, 1962.

3. The prosecution, to prove the case examined P.W.1 to P.W.7, marked Ex.P1 to Ex.P.20 and M.O.1 to M.O.4. On the side of the accused, neither witnesses examined nor documents marked.

4. The contention of the appellant is that the mandatory provision under Section 50(1) not followed in this case. P.W.2, the Seizure Officer, took the appellant to AIU Room, made a search on the body of the appellant, since no recovery made, took the sandals worn by the appellant, after giving the option of search, cut open the sandals, found two packets of contraband, concealed in each of the chapels. The option under Section 50(1) was mere ritual and not substantially followed. Further, submitted that though P.W.1 may be a Gazetted Officer that will not automatically be a compliance to Section 50 of the NDPS Act.

5. Further, in this case, the mandatory provision of Section 42(1) not complied. P.W.2 admit that the boarding pass (Ex.P6) stamped with security seal, name of the appellant found in the passenger manifest (Ex.P7) in which, the appellant shown as Passenger No.66 and off loaded by Customs. Thus, the petitioner, after boarding the Aircraft, the respondent on getting information forcibly brought down the petitioner from Aircraft and it is not a chance recovery, as projected. To get over the statutory obligation under Section 42(1), the case wrongly projected as chance recovery.    6. In this case, P.W.2 is the Seizure Officer as well as the Investigating Officer. Ex.P2 is the alleged confession statement of the appellant. The statement recorded by P.W.2. Though remand report prepared by P.W.6, he admits that all the particulars and details of the investigation provided by P.W.2 he is not aware of the same personally. Likewise, one S.Elango / Intelligence Officer of the Customs produced the appellant before the remanding Magistrate. P.W.1 admits that S.Elango, Prevent