Supaporn Patsak vs State
2015 Latest Caselaw 6567 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on :31.08.2015
                                     Judgment delivered on : 03.09.2015.
+      CRL.A.643/2013
       SUPAPORN PATSAK
                                                             ..... Appellant
                            Through        Mr. M.L. Yadav, Adv.

                            versus

       STATE
                                                             ..... Respondent
                                     Through     Mr. Satish Aggarwal, Adv
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 08.11.2012 and 19.11.2012 wherein the appellant

Supaporn Patsak (a Thai national) has been convicted under Section

21-C and 23-C read with Section 28 of the Narcotic Drugs and

Psychotropic Substances Act (in short 'NDPS Act'). She has been

sentenced to undergo RI for a period of 10 years for each of the offence

and a fine of Rs.1 lac and in default of payment of fine, to undergo SI

for one month each. Benefit of Section 428 of the Cr.PC has been

granted to the appellant.

2 The version of the prosecution is that on 24.12.2006, it was learnt

that one lady by the name of Supaporn Patsak holding a Thai passport

was to travel to Beijing by flight No. CA-948 from the IGI Airport and

her checked-in baggage would contain 1.250 kgs of heroin. This

information was reduced into writing. The above lady on identification

was off-loaded from the plane; she was carrying a black coloured

strolley bag; her checked-in baggage was also off-loaded. In the

presence of two public witnesses, a notice under Section 50 of the

NDPS Act was served upon her. She was informed that she had a right

to get her search conducted either before a Magistrate or a Gazetted

Officer. She refused. On the search of the checked-in baggage, some old

and used clothes were found. The bottom of the strolley bag appeared to

be hard; there were screws fixed upon it. After removal of the screws, a

packet secured with brown adhesive tape and covered with carbon

papers of Korex was found concealed and on opening, it was found to

contain an off-white coloured granule powder which gave a pungent

smell. A pinch of the said powder on testing with the testing kit tested

positive for heroin. Three representative samples of 5 gms each were

drawn from this contraband. The remaining contraband and samples

were sealed and seized with the paper slips bearing the signatures of the

witnesses. A facsimile of the seal was also affixed on the test memo.

From the search of the person of the appellant, 40 Thai Bhats were

recovered besides 700 US Dollors, 2,500/- Thai Bhats, a visiting card,

her photograph, air ticket, boarding pass and checked-in baggage tag

number was also recovered. A detailed panchnama (Ex.PW-7/C) was

prepared. The statement of the appellant under Section 67 of the NDPS

Act was recorded. She disclosed that she had visited India twice earlier

with a friend but was not aware of the drug which was found in her bag

as her bag had got damaged and she had given it to one Mr. Chinedo for

repair; it was delivered back to her but she did not know about the

concealment of this contraband. Statements of witnesses were recorded.

The contraband was sent to CRCL for analysis which confirmed the

same to be heroin.

3 On behalf of the prosecution, 17 witnesses were examined. The

statement of the appellant under Section 313 of the Cr.PC was recorded.

She pleaded innocence stating that she was not aware of the contraband

lying in her checked-in baggage. No evidence was led in defence.

4 On the basis of the aforenoted evidence, both oral and

documentary, the appellant was convicted and sentenced as aforenoted.

5 Learned counsel for the appellant submits that the appellant has

undergone incarceration of 9 years and she being a foreign national, a

sympathetic consideration may be awarded to her in the sentence. In the

alternate, on merits, it has been argued that there is sufficient evidence

to show that there is tampering of the samples. It is pointed out that as

per the version of the prosecution, a 5 gms sample was taken but the

report of the CRCL discloses that what was received in the CRCL was

contraband weighing 6.6 gms; this discrepancy in the sample is

unexplained. To support this argument, reliance has been placed upon

(2005) 9 SCC 773 Rajesh Jagdamba Avasthi Vs. State of Goa;

submission being that in similar factual matrix where the Apex Court

had noted the discrepancy in the weighment, the benefit had accrued in

favour of the appellant and he was granted acquittal. The second line of

argument adopted by the learned counsel for the appellant is on the

testimony of the so called public witnesses; submission being that

Satender (PW-14) has not supported the version of the prosecution. He

has turned; the second public witness Prashant Rajani (PW-16) was a

stock witness and this information has been elicited in his cross-

examination wherein he has admitted that he has deposed in the other

proceedings of the DRI as well. The third argument propounded by the

learned counsel for the appellant is that the conscious possession of the

contraband (which is a mandate required to be proved by the

prosecution) has not been established; there were three versions given

by the appellant in her statement recorded under Section 67 of the NDPS

Act; a wholesome reading of these statements would show that the

appellant did not have the knowledge that the so called contraband

which was recovered from her checked-in baggage was a drug. On all

counts, the benefit must accrue in favour of the appellant and she be

acquitted.

6 Arguments have been refuted. It is stated that on no count, does

the impugned judgment call for any interference.

7      Record has been perused.

8      The members of the raiding party were namely Anju Singh (PW-

7), Arvind Kumar Sharma (PW-8) and Satender (PW-14).

9 PW-7 and PW-8 were official witnesses. PW-7 had deposed that

on a secret information which was a telephonic conversation which she

received, she was briefed by Sanjay Bansal (PW-11 the Joint Director of

the DRI) that one lady passenger by the name of Supaporn Patsak was

going to Beijing by an Air China flight and she could be carrying

contraband in her checked-in baggage. PW-7 reached the airport. The

passenger was off-loaded. Notice under Section 50 was served upon her.

In the presence of two public witnesses, her checked-in baggage was

opened where the strolley bag was found to contain some old clothes

and cosmetics; on further checking of the baggage, the bottom appeared

to be heavy and when unscrewed, one packet was found which was

secured with brown adhesive tapes and carbon paper. The total weight

of the recovered substance was 1450 gms; it was an off-white granule

powder. Its net weight was 1300 gms. Three representative samples of 5

gms each were taken. In her cross-examination, she stuck to her stand;

although a lengthy cross-examination was effected of this witness. In

fact nothing to discredit her version has been pointed out by the learned

counsel for the appellant on this score.

10 The second member of the raiding party was Arvind Kumar

Sharma (PW-8) who also joined investigation with PW-7. His version is

also on the same lines as PW-7. PW-8 had also recorded the statements

of various other witnesses under Section 67 of the NDPS Act. In his

cross-examination, he had reiterated that contraband was seized from the

bottom lining of the strolley bag which was the checked-in baggage of

the appellant.

11 Satender (PW-14) was another member of the raiding party who

was a public witness. He did not toe the line of cross-examination. He

was declared hostile and was permitted to be cross-examined by the

learned Public Prosecutor; this witness was of no use to the prosecution.

12 Another member of the raiding party who was also a public

witness was Prashant Rajani (PW-16). He was working as an Assistant

Supervisor in the Air China Sector of the Airport at the relevant date. He

has supported the version of the prosecution and has deposed on the

same line as PW-7 & PW-8. He has deposed that after the passenger was

off loaded, the notice under Section 50 of the NDPS Act was served

upon the appellant. From her checked-in baggage, recovery was made of

contraband which later on revealed to be heroin. The samples from

contraband were drawn out in his presence and the paper slips which

were pasted on the contraband on the remaining samples was signed by

him. He also identified his signatures on the panchnama (Ex.PW-7/C).

In his cross-examination, he did not deter from his testimony. Although

he has admitted in one part of his examination that in another case

booked by the DRI about 1- ½ years, he has given his statement (which

has no connection with the present case) but merely because he had

deposed in another prosecution of the DRI would not in any manner

hold him out to be a stock witness. Relevant would it be to note that

PW-16 was working as an Assistant Supervisor in Air China at the

International Airport at Terminal 2. Raids by the DRI are largely

effected at the International Airports and this is a well known fact; it is

also fairly common that persons who are easily available in this sector

would be requisitioned as public witnesses and in such an eventuality,

PW-16 having joined investigation in another prosecution (wholly

unconnected with the present case) by the DRI would not make him a

stock witness. A stock witness is a person who is engrained time and

again by the same Department to toe the line of the prosecution without

any independent information; a perusal of the version of PW-16 wholly

negatives this position. PW-16 was definitely not a stock witness.

13 The members of the raiding party i.e. PW-7, PW-8 and PW-16

have thus established that the contraband which was in the nature of

heroin was recovered from the appellant.

14 The submission of the appellant that she was not in conscious

possession of the same is also an argument which is noted to be rejected.

Before drawing presumption under Sections 35 & 54 of the NDPS Act

(which speaks of the culpable mental status of an accused) the

prosecution must establish a prima-facie case and which the appellant is

permitted to rebut; but noting the fact that the appellant in this case has

not rebutted this statutory presumption, this Court notes that the physical

possession of the contraband which was admittedly recovered from the

checked-in baggage of the appellant, the knowledge that this substance

was not heroin has not been rebutted by the appellant. It is also not the

case of the appellant that the said checked-in baggage did not belong to

her. The baggage tax (Ex.PW-7/H) affixed on the boarding card and air-

ticket also established that this luggage in fact belonged to the appellant.

The Apex Court has time and again held that once a physical possession

of the contraband has been established, the argument that it was not a

conscious possession is an argument the onus of which is to be

discharged by the accused. Thus the burden would be upon the accused

to rebut the statutory recognition of this fact that the accused was not in

the knowledge that this substance was a contraband.

15 In this context, the argument of the learned counsel for the

appellant that there were three versions given by the victim in her

statement recorded under Section 67 of the NDPS Act have also been

noted. There is no doubt to the proposition that a statement under

Section 67 of the NDPS is a piece of evidence; it may not be a

substantive piece of evidence but it can be used for the purposes of

corroboration. Her first statement under Section 67 of the NDPS Act

was recorded on 25.12.2006 (Ex.PW-7/M); on the same day, her second

statement under Section 67 was also recorded (Ex.PW-7/O). They are

both in the English language and they have been recorded before Anju

Singh (PW-7). It was in these statements that there were various

personal facts disclosed by the appellant which were only in her

personal knowledge; it was disclosed by her that she had come to India

on two earlier occasions with another friend and that friend had a boy

friend by the name of Mr.Chinedo. Although in her first statement, she

had stated that Chinedo had taken the suit case for repair and she did not

know what was contained in the suit case but in the second statement

(which was also on the same day), the appellant disclosed that she had

knowledge that the heroin was contained in the bottom portion of this

suit case. Her third statement recorded under Section 67 of the NDPS

Act was recorded much later on 28.02.2007 while she was in Tihar jail.

This statement may not be relevant as it was only for the purpose of

verifying her address of Thailand. Her retraction (Ex.PX/1) was

received in the Court on 01.07.2007 after 5- ½ months after making her

first statement and the trial Judge had rightly noted that this was on legal

advice from her inmates or by her lawyer as there was no reason for this

delayed retraction. Moreover, in her retracted version, she stated that she

was physically beaten by the DRI officials. This appears to be wholly

incorrect as the appellant was medically examined on the date of her

remand (Ex. 7/Q) which revealed no injury upon her person.

16 In this background, her conscious possession of the contraband

stood fully established.

17 The last argument of the learned counsel for appellant that the

weight of the sample recovered in the CRCL was 6.6 gms whereas the

version of the prosecution was that a 5 gms sample was drawn and the

discrepancy being unexplained, the appellant is entitled to a benefit is

also an argument which is misconceived. The sample received in the

CRCL of 6.6 gms (as is evident from the report Ex.PW-9/A) was the

weight of the sample with the polythene bag. It was the gross weight of

the sample which was inclusive of the polythene pouch and not the net

weight of the sample alone. The gross and the net weight of the

contraband has already been detailed supra. What was drawn and sent to

the CRCL was the net weight of 5 gms and what was the net weight of

the sample received in the CRCL has not been mentioned in Ex.PW-

9/A. Obviously the gross weight would be more considering that the

polythene bag would have some weight and thus the CRCL having

noted that 6.6 (gross weight) had been received in the Department is

another argument which in no manner is beneficial to the appellant.

18 Reliance upon the judgment of Rajesh Jagdamba on this score is

misplaced; in that case, the Supreme Court had noted that there was a

substantial difference in the net weight of the sample which was

received in the Department and the sample which had been drawn. In

that case, the sample sent for testing was 82.5 gms as against the weight

of 115 gms; the difference of the weight in the present case is too minor.

19 The appellant was found in the possession of a commercial

quantity. This is also evident from the report Ex.PW-9/A which had

noted that the purity percentage of diacetylmorphine as 960 gms and the

commercial quantity cordoned off to 250 gms; the appellant was rightly

convicted under Section 21-C of the NDPS Act. The attempt on the part

of the accused to export this contraband out of the country also calls for

no interference in her conviction under Section 23-C read with Section

28 of the NDPS Act.

20 The appellant has already been granted the minimum sentence.

On no count does the impugned judgment call for any interference.

Appeal is without any merit. Dismissed.

INDERMEET KAUR, J SEPTEMBER 03, 2015 A