Mohd Dawood vs Department Of Customs
2013 Latest Caselaw 4744 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. A. No. 708/2010

                       Date of Decision: 11th October, 2013


MOHD DAWOOD                                              ..... Appellant
           Through:                 Mr. Arpit Batra and Mr. Udit Jain,
                                    Advocates.

                           versus

DEPARTMENT OF CUSTOMS                    ..... Respondent
            Through: Mr.   Pramod      Bahuguna       and
                     Ms.Kavita, Advocates.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                           JUDGMENT

: 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 conviction cannot be based.

(v) Detention receipts were filled by the complainant who sought

assistance of his colleague for which no permission was taken

from the superior nor was he examined.

(vi) There was total non-compliance of Section 50 of the NDPS

Act. Reliance was placed on State of Delhi v. Ram Avtar

(2011) 12 SCC 207 and Saiyaed Mohd. Saiyad Umar Saiyad &

Ors. v. State of Gujarat 1995 (3) SCC 610.

(vii) Although, Nokia mobile phone is alleged to have been

recovered from the accused, no further investigation was done

with regard to that mobile.

6. As such, it was submitted that prosecution has failed to bring

home guilt of the accused beyond the shadow of doubt, as such, he is

entitled to be acquitted.

7. Per contra, it was submitted by learned counsel for the

respondent that it is a case of international smuggling. A huge

recovery of 2.680 Kgs was made from the possession of appellant and

there is no challenge to the recovery from his possession. As regards

non-compliance of provision under Section 50 of the NDPS Act,

reliance was placed on Ram Swaroop v. State (Govt. N.C.T.) of Delhi

AIR 2013 SC 2068 and Gita Lama Tamang v. State of (G.N.C.T.) of

Delhi 2006 (3) JCC [Narcotics] 197 for contending that in case of

seizure from the bags there is no requirement for observance of

safeguards provided by Section 50 of the Act. In any case, in the

instant case, all the safeguards were observed. Since the appellant

was an Afghani national, as such, one Sh. S.M. Ashraf Hofiyani was

joined as interpreter to interpret the contents of the documents to the

appellant and the same were thereafter translated in English by PW11

Rajesh Kumar. Under the circumstances, no prejudice is caused to the

appellant by preparing the documents in English, once contents were

duly translated to the appellant. PW11 Rajesh Kumar has been

examined by the prosecution. Sh. S.M. Ashraf Hofiyani could not be

examined as he had been transferred to Kabul, as such, it was not

possible to examine him. Furthermore, the entire recovery was from

the baggage of the appellant which is substantiated by the testimony

of the complainant and other material witnesses. Photographs were

also taken which corroborates the ocular testimony of the witnesses.

As regards statement of the accused recorded under Section 67 of

NDPS Act it was submitted that there was no retraction for a

considerable length of time. Moreover, there are no allegations of

torture to the accused, as such, the same is devoid of merits. Reliance

was placed on Union of India v. Satrohan (2008) 8 SCC 313; 2008

(3) JCC (Narcotics) 182. As regards minor variations in the testimony

of witnesses, it was submitted that same does not affect the credit

worthiness of the witnesses. Reliance was placed on Ram Kumar v.

C.B. of Narcotics 2008 (3) JCC (Narcotics) 107. As regards non-

examination of the colleague who filled the detention receipts, it was

submitted that the same is not fatal to the case of the prosecution. The

complainant or other witnesses were having no ill-will or grudge

against the appellant for which reason such a heavy recovery would

be planted upon him. As such, it was submitted that there is no

infirmity in the impugned order which calls for interference.

8. I have given my considerable thoughts to the respective

submissions of learned counsel for the parties and have perused the

record.

9. The case of prosecution as unfolded by PW1 Sh. U.R. Gupta,

ACO is that the accused was intercepted in the arrival hall at IGI

Airport on his arrival from Kabul by Ariana Afghan Airlines, flight

No. FG 322 at 1330 hours. Since accused was an Afghani national, as

such, two interpreters, namely, Mr. Ashraf Hofiyani and Mr. Rajesh

Kumar, who were the staff of Ariana Airlines were arranged. The

interpreter informed him about the legal rights that he had and that

his baggage could be searched in the presence of a Gazetted Officer or

a Magistrate. Thereafter, notice under Section 50 of the NDPS Act

Ex.PW 1/B was served upon the accused in the presence of two panch

witnesses, namely, Deepak Singh and Sambhu Jeet. Recovery of

contraband was affected from the hand baggage of the accused as well

as from his checked-in baggage. The total weight being 2.680 Kgs., a

pinch of which was tested in Field Drug Test Kit and was found

positive of Herion. Both the lots recovered from the hand baggage

and checked-in baggage were homogeneously mixed and three

representative samples of 5 gram each were drawn therefrom marked

as S-1, S-2 and S-3 and were sealed with the custom seal. The

samples were kept in transparent pouches and were sealed.

Panchnama Ex. PW1/C were prepared. Photographs of the

concealment of the drug in the stroller bag as Ex.PW1/E, E-1 and E-2

were taken. Whole of the proceedings were explained to the accused

by the interpreters in the language known to the accused. Summon

under Section 67 of the NDPS Act Ex.PW1/F was served upon the

accused and his voluntary statement Ex. PW1/G was recorded which

was signed by him at point B and by the interpreters at point C and D,

respectively and by PW1 himself at point A. Statement of panch

witnesses and interpreters were also recorded.

10. The thrust of argument of learned counsel for the appellant was

on the fact that the appellant being an Afghani national was not aware

of any language other than Persian. Documents were prepared in

English, as such, he was not aware about the contents and serious

prejudice has been caused to him by non-preparation of the documents

in Persian language. As stated above, reliance was placed by him on

Hasan Imam Inamdar (supra) and Ramaswamy (supra). In Hasan

Imam Inamdar (supra) the accused was knowing Marathi and Hindi.

Panchnama was drawn in English language. It was held that since the

panchnama was drawn in English which language was not known to

the appellant, as such, serious prejudice was caused to the accused.

Similarly, in Ramaswamy (supra) appellant was South Indian,

resident of Chennai. The documents were prepared in Hindi. There

was nothing to show that procedure adopted by Investigating Officer

was explained to the accused in English or any other language. Both

these authorities does not help the appellant, inasmuch as, prosecution

has examined PW11 Mr. Rajesh Kumar, one of the interpreters, who

categorically deposed that he was translated the contents of notice

under Section 50 of NDPS Act Ex.PW1/B in Persian language by

Mohd. Ashraf Hofiyani. Thereafter, notice was signed by him. He

further deposed that panchnama Ex.PW1/C was also translated to the

accused with the help of Mohd. Ashraf Hofiyani. He denied the

suggestion that reply of the accused on the notice Ex.PW1/B was

written by him at the instance of Customs Officer and that no such

notice was served upon the accused or that he had not given any such

reply. In fact, the testimony of the witness that panchnama was duly

translated to the accused goes unchallenged and unrebutted as the

witness was not cross-examined on this aspect nor any suggestion was

given to him that the same was not translated to the accused.

11. Although it is true that Mohd. Ashraf Hofiyani was not

examined by the prosecution, but no adverse inference can be drawn

against the prosecution for his non-examination, inasmuch as, it had

come on record that he was working in Ariana Airlines and was

transferred to Kabul. That being so, the department was not in a

position to produce him before the Court. In Dalbir Kaur and Ors v.

State of Punjab 1977 Cr.L.J. 273 (SC) omission to examine material

witnesses, who were not deliberately withheld or unfairly kept back,

in the circumstances held, was not sufficient to throw doubt on

prosecution case.

12. Besides the complainant, PW3 Sh. K.S. Garia who was working

as Superintendent Prevention at IGI Airport at arrival hall also

testified that Mr. U.R. Gupta, ACO brought one passenger, namely,

Mohd. Dawood on suspicion of carrying Narcotic drugs, etc. He

called two independent witnesses. Since the passenger appears to be

speaking very little Hindi, two interpreters were called who could

communicate with the passengers in Persian and in turn could

communicate his version. All the proceedings were explained to the

accused by interpreting the same in the language known to the

accused. He also tesified that notice under Section 50 of the Act was

served upon him. Thereafter, recovery was affected.

13. PW11 Rajesh Kumar confirmed regarding preparation of notice

under Section 50 of the Act after duly translating the contents of the

same, then preparing panchnama and other documents. No suggestion

was given to the witness that the documents were not explained to the

accused in his own language by the interpreter. All this goes to show

that since the appellant was an Afghani national and was not

conversant with English language and knew very little Hindi,

therefore, at the very initial juncture all the safeguards were taken by

the complainant while arranging interpreters who knew Persian

language. All the proceedings were explained to the accused in

Persian language and thereafter, the same were translated by Mohd.

Ashraf Hofiyani to Mr. Rajesh Kumar, who then recorded the

proceedings in English. That being so, it cannot be said that any

prejudice was caused to the appellant. In Gita Lama Tamang (supra)

also a plea was taken that appellants were Nepali Nationals and were

not conversant with English language. It was observed that "if

panchnama and confessional statements made by the accused under

Section 67 of NDPS Act are read in juxtaposition, no incongruities are

to be located. Nothing extra was included in panchnama. Secondly

on the last page of the panchnama it is recorded that the panchnama

had been read over and explained to the appellant Gita Lama Tamang

and thereafter his signatures were obtained".

14. At the cost of repetition it may be mentioned that in the instant

case sufficient evidence has come on record to prove that all the

proceedings were translated to the appellant in Persian language and

thereafter the documents were prepared in English. The mere fact that

proceedings were carried out in English language does not raise any

presumption that the appellant was unaware of the contents of the

proceedings so as to cause any prejudice to him.

15. As regards the submission that there was non-compliance of

Section 50 of the NDPS Act, this submission is again devoid of merit,

inasmuch as, in the authorities Ram Avtar (supra) and Saiyed Mohd.

In Saiyad Umar Saiyad (supra) relied upon by learned counsel for the

appellant, it was held that merely informing the accused that he can be

searched before a gazetted officer without informing that he has a

right to be searched is not compliance of Section 50 of the NDPS Act.

However, it has come in the testimony of the complainant that the

accused was duly informed that he has a right to be searched in the

presence of a gazetted officer. Moreover, in the instant case, recovery

was not effected from the person of the accused but from his checked-

in baggage. In Gita Lama Tamang (supra) it was held that it is now

settled that Section 50 applies, whenever a person of an accused is to

be searched. For searching a blue black zipper bag, Section 50 has no

application. Reference was made to the following authorities:

(i) State of H.P. v. Pawan Kumar, 2005 (1) JCC [Narcotics] 107 : 2005 (4) SCC 350;

(ii) State of Haryana v. Ranbir Singh @ Rana, 2006 (1) JCC [Narcotics] 75 : (2006) 5 SCC 167; and

(iii) State of Punjab v. Balwant Rai, 2005 (1) JCC [Narcotics] 103 : 2005 III AD (S.C.) 407

16. The matter also came up for consideration before Hon‟ble

Supreme Court in Ram Swaroop (supra). In that case 32 bags of

poppy straw power weighing 64 kgs. had been seized from the bags of

the accused. It was established by adducing cogent and reliable

evidence that the bags belonged to the appellant. It was urged that

there was non-compliance of Section 50 of the Act and therefore,

conviction is vitiated. Repelling the contention, Supreme Court

referred to an earlier decision reported in Ajmer Singh v. State of

Haryana (2010) 3 SCC 746 where the appellant was carrying a bag

on his shoulder and the bag was searched and contraband articles were

seized. While dealing with the applicability of Section 50 of the

NDPS Act, reference was made to the decisions in Madan Lal v. State

of H.P. 2003 Crl.L.J. 3868 and State of H.P. v. Pawan Kumar AIR

2005 SC 2265; (2004) 7 SCC 735, and it was held as under:

"Thus, applying the interpretation of the word "search of person" as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel for the appellant as regards the non-compliance with Section 50 of the Act."

17. Relying on this authority it was observed that the contention of

the appellant that there has been non-compliance of Section 50 of the

NDPS Act so assiduously raised is wholly sans substance.

18. In the instant case also no recovery was affected from the

person of the accused and in fact the recovery was from the checked-

in baggage of the accused, therefore, there was no requirement for

compliance of Section 50 of NDPS Act.

19. Coming to the other limb of argument that only one panch

witness has been examined whereas the other panch witness, namely,

Shambujeet was not examined and therefore an adverse inference is

liable to be drawn against the prosecution, same again is devoid of

merit. In Ram Swaroop (supra) a contention was raised that the

seizure was affected from a crowded place yet the prosecution chose

not to examine any independent witness and in the absence of their

corroboration with independent witness, the evidence of police

witnesses could not be given credence. Repelling the contention, it

was held by the Supreme Court that it had come in evidence that no

independent evidence agreed to join the proceedings. Moreover, there

was no absolute rule that police officers cannot be cited as witnesses

and their depositions should be treated with suspect. A passage from

State, Govt of NCT of Delhi v. Sunil 2001 (1) SCC 652 was quoted,

and the same reads as follows

"We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and

policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

20. The observation made in Ramjee Rai and Others v. State of

Bihar (2006) 13 SCC 229 was also reproduced and the same reads as

follows:

"It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward."

21. Following these authorities it was held that non-examination of

independent witnesses does not cast doubt on the prosecution case. In

Gita Lama Tamang (supra) also, after relying upon number of

judicial pronouncements it was observed that no rule of thumb can be

laid down to arrive at a conclusion as to what is the effect of non-

examination of panch witnesses. Each case has its own facts. In that

case both the panch witnesses were Nepali. They could not be

examined being untraceable. The complainant supported the case of

the prosecution. It was observed that there is no inkling in the

evidence on record that the abovesaid witnesses nurtured any grouse

against the appellants/accused persons. The deposition of

complainant was well corroborated by confessional statement made

by the appellant. It was further observed that there was huge recovery

of contraband, as such, there must be strong reasons to falsely

implicate the accused persons who are Nepali Nationals. The police

officers have no ill will or motive to falsely implicate them in such a

serious case.

22. Present case stands on a much different footing, inasmuch as, at

the time of recovery two panch witnesses were joined namely Deepak

Kumar and Shambu Jeet. Although, Shambujeet was not examined by

the prosecution, but Deepak Kumar has substantiated the case of

prosecution in all material particulars regarding recovery of

contraband from the checked-in baggage of the accused. On material

points his testimony goes unrebutted being unchallenged. Moreover,

there is no reason as to why he will falsely implicate the accused in

this case. Not only that, at the time of recovery PW11 Rajesh Kumar

was present. It was he who translated all the documents in English, as

such, the testimony of the complainant Sh. U.R.Gupta regarding

recovery, finds corroboration from ample material on record. Mere

fact that one of the panch witness, namely, Shambujeet was not

examined does not cast any doubt on the prosecution version in view

of the voluminous evidence coming on record against the appellant.

23. Besides above, the statement of accused himself was recorded

under Section 67 of NDPS Act. Learned counsel for the appellant

relied upon retraction made by the accused from the said statement,

however, it was rightly observed by learned Special Judge that this

retraction was on 2nd July, 2004 i.e. after 26 days of his making the

statement. The same appears to be an afterthought. When the

accused was produced in the Court immediately after his arrest it was

not alleged by him that he was forced to make any statement.

Moreover, a perusal of the statement goes to show that certain facts

were disclosed by the accused which could only be within his special

knowledge. In this statement he disclosed the source from where he

got two bags and US $6349 and that the same were given to him by

one Afghani, namely, Faizul Haq who promised him to give

Rs.1,00,000/- if he carried those bags to India. The statement also

contained the details of his family. The prosecuting agency could not

be expected to be aware of the particulars of the family of the accused.

All this shows that the statement was made by the appellant

voluntarily and the same was duly translated in English by PW Rajesh

Kumar. It is well settled that confessional statement of the accused, if

found voluntary and truthful and has substance, it can do without

frills. It must be kept in mind that Section 67 of NDPS Act is pari

materia to Section 108 of Customs Act. If the confessional statement

of the accused stands proved, there is no need of corroboration.

24. In Triveni Prasad v. State of Maharashtra AIR 1976 SC 2156,

it was held :-

"The wealth of details given by the accused in his confessional statement goes to establish that his statement is voluntary."

25. Similar view was taken in authorities reported as Ravinder

Singh @ Bittoo v. State of Maharashtra, 2002 (2) JCC 1059 SC, A.K.

Mehboob v. IO, NCB JT 2001 (1) SCC 614; Pon Adithan v. Deputy

Director, NCB, Madras 1999 (2) JCC SC 335; Kalema

Tumba v. State of Maharashtra JT 1999 (8) SC 293; Raj Kumar

Karwal v. UOI and Ors. 1991 Cr.L.J. 97 (SC); Emmanuel Uchenna

Ezenwosu v. NCB and Ors. 2003 (1) JCC 417 and Francis Stanly v.

Intelligence Officer, NCB 2007 (1) JCC [Narcotics] 1 AIR 2007 SC

794.

26. Since the confessional statement recorded under Section 67 of

the NDPS Act was voluntarily and truthful, there was no need of

further corroboration, however, in the instant case his statement finds

corroboration from ample material available on record.

27. It is accordingly held that there is no merit in the contention

raised on behalf of accused that the statement made by him was

neither voluntary nor truthful and, therefore, could not have been

relied upon for convicting him. It is pertinent to note that in his

statement recorded under Section 313 Cr.P.C. the accused has not

denied that checked-in baggage belonged to him. The only plea taken

by him was that nothing objectionable was recovered from the same.

The appellant being an Afghani National, neither the complainant nor

other witnesses nurtured any ill will or grudge against him for which

reason they would plant such heavy quantity of contraband upon him

to falsely implicate in such serious case.

28. The fact that no further investigation was carried out by

prosecuting agency regarding Nokia mobile phone having Indian sim-

card does not affect the prosecution case.

29. In view of the above discussion, this Court finds no reason to

differ with the finding arrived at by learned Special Judge with regard

to the guilt of the accused for the offence under Sections 21(c) and 23

(c) of NDPS Act or the sentence imposed upon him.

30. The Court does not find any merit in the appeal and the same is

accordingly dismissed.

SUNITA GUPTA (JUDGE) OCTOBER 11, 2013 AK