Narcotics Control Bureau vs Mark Michael Ryan & Ors.
2014 Latest Caselaw 800 Del

$~R-186
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 157/1997 & Crl.M.A.1581/2000

       NARCOTICS CONTROL BUREAU                 ..... Appellant
                    Through: Mr.Satish Aggarwal, Sr. Public
                             Prosecutor and Mr. Amish
                             Aggarwala, Advocates
                    versus

       MARK MICHAEL RYAN AND ORS.              ..... Respondents
                    Through: Mr. Avtar Singh and Ms. Richa,
                             Advocates for respondent No.3
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                          ORDER

% 11.02.2014

Impugned judgment of 29th March, 1997 holds that non compliance of mandatory provision of Section 42 of The Narcotic Drugs and Psychotropic Substances Act, 1985 vitiates entire trial and acquits respondent-accused in SC No.176/1994 titled N.C.B. v. Mark Micheal Ryan and Ors.

The facts of this case are noticed in detail in the impugned judgment which need not to be reproduced herein as the short question raised at the hearing of this appeal to challenge the acquittal of respondent-accused is whether Custom Clearance Counter at IGI Airport comes within the definition of 'public place‟ or not. Suffice it would be to note that on the intervening night of 17 th and 18th June, 1994. Respondents No.1 and 2 had reported at the Custom Clearance Counter

CRL.A. 157/1997 Page 1 at IGI Airport for travelling to Amsterdam and they were earmarked for surveillance. First two respondents were asked by Narcotics Control Bureau's officials to identify their baggage i.e. two suitcases (Ex.P-22 and P-23) and in the presence of two independent witnesses, the baggage of first two respondents was searched and from the baggage of first two respondents, a blackish substance weighing 30 kgs in all was recovered and upon clinical analysis, it was found to be Hashish. First and second respondent had disclosed that the contraband substance was provided to them by respondent No.3 in a hotel.

During trial, deposition of 11 witnesses was recorded by trial court and respondents-accused in their statement under Section 313 of Cr.P.C. had denied the prosecution case and had alleged false implication.

The finding returned by trial court in the impugned judgment to acquit respondents-accused is as under: -

"In view of this categorical testimony of PW-1 and PW-3 the version of the prosecution is that the search of the accused had taken place at the custom counter which in view of the judgment of our Hon‟ble High Court referred to Supra dt. 20.3.97 in criminal appeal No.149/97 (As yet unreported) Sec.42 would apply and admittedly in the present case this intelligence information as per the version of PW-2 has not been filed on record mandate of Sec.42 is not complied with. In the complaint Ex. PW1/D it has categorically been averred that both the accused persons had been earmarked and had been kept under surveillance.

The prosecution clearly had secret/intelligence information CRL.A. 157/1997 Page 2 about the accused persons travelling in suspicious circumstances which information not having been reduced into writing, mandate of Sec.42 not having been complied with, case of the prosecution must fail. This benefit must go to the accused. The entire trial stands vitiated." At the final hearing of this appeal, learned Senior Public Prosecutor for appellant did not dispute the settled legal position that the compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory in the case where the recovery of the contraband is not from a 'public place' but, according to him, in the instant case detection, recovery and seizure of the contraband is from a Custom Clearance Counter at IGI Airport which is a 'public place' and so, Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 would apply. Attention was also drawn to the explanation of Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to submit that IGI Airport is a place which is intended for use by public and is accessible to the public and so comes within the definition of 'public place'. In support of above stand, reliance was placed upon decision in Utpal Mishra v. Nicelai Christensen 1997 Crl.L.J. 4475. Thus, it was submitted on behalf of appellant that impugned judgment runs contrary to Division Bench decision in Utpal Mishra (supra) and so, it deserves to be set aside.

Respondents No.1 and 2 have been served by way of publication as per order-sheet of 1st December, 2010. Learned counsel for respondent No.3-accused had drawn the attention of this Court to a Division Bench's decision in Crl.L.J.356/2012 titled State v. Virender Yadav & Anr. rendered on 22nd October, 2013 to submit that respondents No.1 and 2 are CRL.A. 157/1997 Page 3 required to be got declared Proclaimed Offender from trial court and till then, this appeal ought to be adjourned sine die. Reliance was placed by learned counsel for respondent No.3-accused upon decisions in Sukhdev Singh v. State of Haryana 2012 (12) SCALE 699 and Directorate of Revenue & Anr. v. Mohammed Nissar Holia (2008) 2 SCC 370 to contend that non-compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is fatal and trial court has rightly relied upon decision in Richard Thomas Wrigley v. Customs and Anr. 67 (1997) DLT 293 to hold that the Custom Clearance Counter at IGI Airport is not open to public and the entry therein is restricted and so, it cannot be described as 'public place'. Thus, it was submitted that there is no infirmity in the impugned judgment.

Both the sides were heard in this appeal to find out as to whether there is any substance in this appeal to get first two respondents declared as Proclaimed Offender and then to decide the appeal. Upon hearing both the sides and on perusal of the impugned judgment, trial court record and the decisions cited, I find that the only question which needs to be answered in this appeal is whether Custom Clearance Counter at IGI Airport is to be treated as 'public place' or not. No doubt, a Division Bench of this Court in Utpal Mishra (supra) has declared that Airport is a 'public place' but the decision in Utpal Mishra (supra) has been rendered after passing of the impugned judgment. When trial court had decided this case, as per learned counsel for third respondent, the only decision which was brought to the notice of trial court was of Richard Thomas (supra) wherein it has been held that Custom Clearance Counter at IGI Airport is not a 'public place' and trial court has rightly relied upon it to CRL.A. 157/1997 Page 4 hold that the non-compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 vitiates the entire trial.

The parameters governing the scope of interference in appeals against acquittal have been reiterated by the Apex Court in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1 in these words:-

„ (i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.

(ii) The appellate court in an appeal against acquittal can review the entire evidence and come to its own conclusions.

(iii) The appellate court can also review the trial court's conclusion with respect to both facts and law.

(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal

CRL.A. 157/1997 Page 5 cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed‟

It is not the case of appellant that any decision contrary to decision in Richard Thomas (supra) was cited before trial court. Impugned judgment may not hold good today in view of the dictum of Division Bench of this Court in Utpal Mishra (supra), but it has to been seen as to whether trial court has mis-interpreted the decision cited before trial court. On a careful perusal of decision in Richard Thomas (supra), I find that trial court had correctly relied upon the afore-noted decision to acquit respondents-accused. Thus, reliance placed by learned Senior Public Prosecutor upon decision in Utpal Mishra (supra) is of no avail as in the considered opinion of this Court impugned judgment does not disclose any manifest error nor any perversity warranting any interference in this appeal. Thus, there are no compelling or substantial reasons to interfere with the impugned judgment.

Consequentially, this appeal and the application are dismissed.

                                                          (SUNIL GAUR)
                                                              JUDGE
       FEBRUARY 11, 2014
       s

CRL.A. 157/1997                                                        Page 6