Delhi High Court

Ahmed Hassan Muhammed vs The Customs on 11 February, 2021

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Reserved on: 03.02.2021
                                            Pronounced on: 11.02.2021
+     BAIL APPLN. 3076/2020
      AHMED HASSAN MUHAMMED               ..... Petitioner
                  Through: Ms.Sushma Sharma, Advocate

                                   Versus

      THE CUSTOMS                                      ..... Respondent
                            Through:   Mr.Pramod Bahuguna, Advocates

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                 JUDGMENT

1. Petitioner is accused in Complaint No. VIII/SIIB/CUS/ACC

Import/Angel/19/2019, registered for the offences under Sections 8/22/23/29

of Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth

referred to as the "NDPS Act"). He was arrested on 05.02.2019 and since

then, he is in judicial custody. Vide this petition, petitioner is seeking bail

during pendency of trial.

2. The allegations levelled against him by the petitioner are that on

30.01.2019, on receipt of secret information that some contraband goods

would be imported from Addis Abbaba by Ethiopian Airlines vide Air Way

Bill No. 07133613576 in a consignment of packet of green tea, Sh. Lal

Singh Maroria, Superintendent, SIIB, ACC, Import, New Custom House,

New Delhi, the same was placed by him before his immediate Superior Sh.

Sukanta Das, Deputy Commissioner (SIIB), further placed it before his

senior Ms. S. Vijayarani, Joint Commissioner (SIIB) for further directions.

The Joint Commissioner directed Superintendent Lal Singh and Ramesh to

keep surveillance and follow up the arrival of aforesaid consignment. The

directions were conveyed to the Deputy Commissioner and air cargo

information available on internet was searched and it was found that AWB

had confirmed a cargo booking Vide Ethiopian Airline No. ET 686 dated

22.01.2019, ET 688 dated 30.1.2019 and ET 686 dated 01.02.2019. It was

also secretly gather that on ET 686 dated 22.02.2019, the cargo had not

arrived and a watch was kept on ET 688 dated 30.01.2019 but then also the

consignment did not reach and hence a constant watch was kept on ET 686

dated 01.02.2019 as well as through Indian Customs EDI System. They also

had the information that in the guise of green tea, khat leaves (also known as

Kat/Qat/Chat/Mira), which is listed in the list of psychotropic substances at

S. No. 110X of the Schedule of NDPS Act, as per Ministry of Finance,

Department of Revenue Notification issued from F No. 12019/3/2016 dated

27.02.2018, however, possibility of any other kind of contraband could not

be ruled out. On 01.02.2019, it was found that Import General Manifest

(IGM) No. 1559970 for FLT No. ET 686 was filed which showed that 10

packages of dry chat shipped under AWB under reference had arrived on

01.02.2019 and immediately Ethiopian Airlines were contacted to submit a

copy of AWB and it was found that the goods were mentioned as dry chat in

the AWB and the consignee were one AGEL incorporation and the address

mentioned there-on was not proper. Since the address looked vague,

therefore, the Airlines officials were asked to provide the correct name of

the consignee and it was informed that M/S Angel Incorporation was the

consignee. Immediately shipments of M/S Angel Incorporation through Air

Cargo Imports were checked through ICES system and it was informed that

two previous consignments of the said firm pending clearance are as below:-

S No.   B/E No. & Date     Description of goods Quantity (kg) AWB No. &
                           as per B/E           as per B/E    Date
1.      9812967 dt.        Dried green leaf     191.25        071-33613403
        28.01.2019                                            dt. 25.01.2019
2.      9786830 dt.        Green Tea            221.00        071-33613414
        25.01.2019                                            dt.23.01.2019

3. As the goods declared in the Bill of Entry matched the intelligence,

the Airline was immediately asked to provide copies of AWBs under the

two bills of entry available with them along with the details of person

collecting delivery order. The Airlines vide letter dated 01.02.2019

submitted the copies of three AWBs 071-33613576 dated 31.01.2019 and

071-33613403 dated 25.01.2019 and 071-33613414 dated 23.01.2019. On

examination of the aforesaid AWBs submitted by the Airlines, it was seen

that the goods declared therein were also "DRY CHAT" and they have been

declared as dried green leaf and green tea respectively. Hence, a preventive

check was done on all the three shipments. Accordingly, vide letter dated

01.02.2019, the Joint Commissioner , SIIB directed the Duty Manager,

CELEBI, Air Cargo Complex, Near IGIA, New Delhi to hold the said three

consignments for examination by Special Intelligence and Investigation

Branch (SIIB), ACC Import, New Delhi.

4. Accordingly, a team of SIIB headed by Sukanta Das, Deputy

Commissioner (SIIB) visited the import shed on 02.02.2019 at 06:00 hours

for conducting the examination of the said goods and therefore, at around

06:15 hours, two independent witnesses were called in the SIIB Office by

Inspector Gaurav Sinha, Air Cargo Imports, NCH, New Delhi and he

briefed the witnesses that an intelligence had been gathered that

consignments imported vide Bill of Entry 9786830 dated 25.01.2019

covered under MAWB No. 07133613414 dated 23.01.2019, Bill of Entry

No. 07133613403 dated 25.01.2019, and the consignment covered under

MAWB No. 07133613576 dated 31.01.2019, for which Bill of Entry has not

yet been filed were containing contraband substances and hence had been

put under preventive-check and the said consignment was to be examined by

the SIIB officers. The impugned goods were lying in the custody of

CELEBI and therefore, the custodian i.e. CELEBI was requested to produce

the consignment covered under the subject Bills of Entry/MAWBs in the

examination SIIB Officers. Sh Rajeev Khatri, G Card holder No. 592/1999

of M/s Ananya Exim, representative of the customs broker who had filed the

two bills of entry referred above on behalf of M/s Angel Incorporation, the

importer, was also called to witness the proceedings of examination in

presence of two independent witnesses.

5. In total, the consignment wise goods as per MAWBs were found to be

packed in 30 cartons, with each consignment containing 10 cartons per

MAWBs. The cartons were then opened and examined one by one MAWB

wise. The cartons marked Number A-1 to A-10, pertaining to MAWB

Number 07133613414 were then examined. It was noticed that one carton

was found sealed using lac. All the cartons bearing numbers A-1 to A-10

were then opened and examined. The said one carton bearing lac seal was

found to contain 10 plastic packages of same type of dry leaves suspected to

be Dry Chat leaves and one plastic package out of these 10 plastic packages

was found sealed with lac seal. It was observed by the examining officers

that this could be on account of the fact that a certain quantity would have

been taken out by FSSAI officials for testing purpose. All the other Nine

cartons were opened and examined and were found to contain 10 plastic

packages of same type of dry leaves suspected to be Dry Chat leaves.

Allegedly, total 100 such plastic packages were found which were also

numbered as A-1/1, A-1/2.....A-1/10 and A-2/1, A-2/2...A-2/10 and so on

till A-10/1, A-10/2, .....A-10/10 respectively. The same were declared as

Dry Chat in the MAWB whereas in the Bill of Entry Number 9786830 dated

25.01.2019 filed for the said consignment, the goods were declared as Green

Tea. The Gross weight of the 10 cartons was taken on the electronic

weighing machine provided by CELBI in the examination area and it was

found to be 220.360 Kgs. As the packaging in respect of the consignments

covered under 10 cartons pertaining to the said MAWB were the same, in

order to arrive at the net quantity of the suspected Dry Chat leaves, the

contents of one carton were emptied and weight of the emptied carton taken

which was found to be 1.740 Kg. Thereafter, the contents in one plastic

package containing Dry Chat leaves were taken out and the emptied plasitic

package weighed which was found to be 0.070 Kgs. The total weight of the

packing material in respect of the said consignment covered under MAWB

No. 07133613414 was found to be 24.400 Kgs and accordingly, the net

weight of suspected Dry Chat leaves was found to be 195.960 Kgs.

6. Thereafter, the cartons marked Number B-1 to B-10, pertaining to

MAWB Number 07133613403 were then examined. It was noticed that one

carton was found sealed using lac. All the cartons bearing numbers B-1 to

B-10 were then opened and examined. The said one carton bearing lac seal

was found to contain 10 plastic packages of same type of dry leaves

suspected to be Dry Chat leaves and one plastic package out of these 10

plastic packages was found sealed with lac seal. It was observed by the

examining officers that this could be on account of the fact that a certain

quantity would have been taken out by FSSAI officials for testing purpose.

All the other Nine cartons were opened and examined and were found to

contain 10 plastic packages of same type of dry leaves suspected to be Dry

Chat leaves. In total 100 such plastic packages were found which were also

numbered as B-1/1, B-1/2 ....B-1/10 and B-2/1, B-2/2...B-2/10 and so on

till B-10/1, B-10/2, ...B-10/10 respectively. The same were declared as Dry

Chat in the MAWB whereas in the Bill of Entry number 9812967, dated

28.01.2019, were declared as Dried Green Leaf. The gross weight of the 10

cartons was taken on the electronic weighing machine provided by CELBI

in the examination area and it was found to be 221.890 Kgs. As the

packaging in respect of the consignments covered under 10 cartons

pertaining to the said MAWB were the same, in order to arrive at the net

quantity of the suspected Dry Chat leaves, the contents of one carton were

emptied and weight of the emptied carton taken which was found to be

2.180 Kg. Thereafter, the contents in one plastic package containing Dry

Chat leaves were taken out and the emptied plastic package weighed which

was found to be 0.065 Kgs. The total weight of the packing material in

respect of the said consignment covered under MAWB No. 07133613403

was found to be 28.300 Kg. and accordingly, the net weight of Suspected

Dry Chatt leaves was found to be 193.590 Kgs.

7. Thereafter, the cartons marked Numbers C-1 to C-10, pertaining to

MAWB Number 07133613576 were found to contain ten plastic packages

of same type of dry leaves suspected to be Dry Chat leaves in 08 such

cartons whereas in carton No C-5, there were 07 such plastic packages and

in carton No. C-10, there were 08 such packages. In total 95 such plastic

packages were found which were also numbered as C-1/1, C-1/2...C-1/10

and C-2/1, C-2/2... C-2/10 and so on till C-10/1, C-10/2 .... C-10/8

respectively. The same were declared as Dry Chat in the MAWB whereas

no Bill of Entry was filed for the same. The Gross weight of the 10 cartons

was taken on the electronic weighing machine provided by CELBI in the

examination area and it was found to be 219.405 Kgs. As the packaging in

respect of the consignments covered under 10 cartons pertaining to the said

MAWB were the same, in order to arrive at the net quantity of the suspected

Dry Chat leaves, the contents of one carton were emptied and weight of the

emptied carton taken which was found to be 1.895 kg. Thereafter, the

contents in one plastic package containing Dry Chat leaves were taken out

and the emptied plasitic package weighed which was found to be 0.090 Kgs.

The total weight of the packing material in respect of the said consignment

covered under MAWB Number 07133613576 was found to be 27.500 Kgs

and accordingly, the net weight of Suspected Dry Chatt leaves was found to

be 195.960 Kgs.

8. On a reasonable belief, that all the above three consignments

contained Drty Chat leaves which is included in the list of Psychotropic

Substances at S No. 110X of the Schedule to the NDPS Act, 1985 as per

Ministry of Finance, Department of Revenue Notification issued from F.

No. N-12019/3/2016-NC.II dated 27.02.2018, the total qty of 581.455 Kgs

(195.960 Kgs+193.590 Kg+191.905 Kgs) of suspected Dry Chatt leaves

was seized by the officers of SIIB, Air Cargo Imports under the provisions

of NDPS Act, 1985.

9. Thereafter representative samples in duplicate from consignments

covered under each MAWB were drawn by Shri Gaurav Sinha, Inspector in

the presence of Sh. Rajeev Khatri, G-Card holder No. 592/1999 of M/s

Ananya Exim and the panchas in total six representative samples were

drawn in total.

10. For drawl of the representative sample from the consignment

pertaining to MAWB number 07133613414, the inspector took a small

quantity of substance i.e. Dry Chat leaves from each of the plastic packages

containing suspected dry chatt leaves, mixed thoroughly to make the

mixture homogenous and out of these two representative samples each

weighing 24 grams were taken, which were individually kept in press locked

plastic pouches. The same process was undertaken for drawl of

representative samples in respect of other two consignments imported under

MAWB No. 07133613403 and MAWB No. 07133613576. The

representative samples in duplicate were serially numbered as SO1 (for

original sample) and SD1 (for duplicate sample). Corresponding to lot A1 to

A10, SO2 (for original sample) and SD2 (for duplicate samples).

Corresponding to lot B1 to B10 and SO3 (for original sample) and (SD3 for

duplicate sample) Corresponding to lot C1 to C10. Thereafter, the press

locked small plastic pouches were further placed inside polythene lined

yellow colour paper envelopes which were sealed with the official seal of

SIIB Branch, NCH, Delhi bearing No. 2-98 over a paper slip containing the

signatures of the panchas Sh. Rajeev Khatri, G-Card holder No. 592/1999 of

M/s Ananya Exim and Shri Gaurav Sinha, Inspector in such a way that the

same could not be tampered without breaking the seal or damaging the

envelope. Test memo No. 37, 38 & 39 were also prepared for testing of the

samples at Central Revenue Control Laboratory, Hill Side Road, Pusa, New

Delhi-110012.

11. After completing the given process, the remaining quantity of the

homogenous mixture which was lying in the press locked plastic pouch was

then kept lot wise in carton serial No. A1, B1 and C1 respectively.

Thereafter, the seized suspected Dry Chat leaves excluding the

representative samples drawn, were repacked in the same cartons from

which they were recovered, pasted with cello tape and wrapped with plastic

straps and sealed over paper slip containing the signatures of the panchas

Sh. Rajeev Khatri, G-Card holder No. 592/1999 of M/s Ananya Exim and

Shri Gaurav Sinha, Inspector. The seized goods as well as the sealed

samples were then handed over to Sh. Jamshed Khan, Duty Officer of

custodian M/S Celebi for safe custody under superdginama dated

02.02.2019. The facsimile of SIIB seal used for sealing was also affixed on

the test memos prepared. The panchnama proceedings were conducted in a

peaceful manner, which concluded at about 19:00 hours on 02.02.2019. The

witnesses remained present throughout the proceedings.

12. At this stage, learned counsel for petitioner points out that as per the

prosecution, the alleged consignment contained 10 cartons of dry leaves

suspected to the Dry Chat leaves and during examination, it was found that

the consignment which was containing cartons A1 to A10, one out of those

packages was found to be sealed with lac seal and could be on account that

certain quantity might have been taken out by FSSAI officials for testing

purpose. The same procedure was adopted for other two consignments as

well. Thus, it is apparent that the packets containing dry leaves were

tampered with by the agency, which was not entrusted for investigation and

that too without the knowledge of custom officials. Learned counsel

submitted that it was thus very clear that some agency, other than the

investigating agency had broke open the sealed packets and allegedly put a

lac seal and thus, the case property was tempered by FSSAI officials.

13. Learned counsel next submitted that as per the prosecution, in all total

six representative samples were drawn. For drawl of the representative

sample from the consignment pertaining to MAWB No. 07133613414, the

investigation agency / Inspector took a small quantity of substance i.e. Dry

Chat leaves from each of the plastic packages containing suspected Dry

Chat leaves, mixed thoroughly to make the mixture homogenous and out of

these two representative samples each weighing 24 grams were taken, which

were individually kept in press-locked pouches. The same process was

undertaken for drawl of representative samples in respect of other two

consignments imported under MAWB No. 07133613403 and 07133613576

respectively. It is the submission of petitioner's counsel that by collecting

the samples from each packet and thereafter mixing all the samples together

before drawing any representative samples, the sanctity of the case property

in individual packet had lost. Learned counsel relied upon decision of a

Coordinate Bench of this Court dated 13.03.2020 in Criminal Appeal No.

1027/2015, titled as Amani Fidel Chris Vs. NCB, wherein the accused was

acquitted while observing that mixing of the substance before drawing any

sample vitiates the entire sample. In addition, learned counsel also placed

reliance upon a decision dated 02.07.2012, pronounced by me in Crl.

Appeal 909/2005, titled as Basant Rai Vs. State.

14. Learned counsel next submitted that the petitioner was apprehended

on 04.02.2019 and it is an admitted fact that no incriminating material was

recovered from his person and that he has been falsely roped in this case

without any evidence. It was also submitted that there is no corroborative

evidence on record to connect petitioner with the offence in question and out

of 41 witnesses, so far only 04 witnesses have been examined by the

prosecution and trial of this case is likely to take time and that the entire trial

is vitiated due to tampering of the seal by FSSAI and mixing of samples

before drawing any representative sample. Thus, petitioner deserves

concession of bail.

15. On the other hand, learned counsel appearing for respondent

submitted that the petitioner has allegedly conspired with co-accused Manoj

Kumar Vishwakarma in regard to import of three shipments of contraband

and the recovery is of commercial quantity and that since trial is still

pending, therefore, petitioner does not deserve bail in view of Section 37 of

NDPS Act.

16. I had heard learned counsel appearing from both the sides.

17. In Basanti Rai (Supra), while dealing with a case where accused was

found carrying a polythene bag containing 8 similar polythene bags having

brown colour substance and Investigating Officer took small pieces of

charas from each packet, mixed the same and drew two sample parcels

which were sent to FSL for analysis, I had allowed the appeal while holding

as under:-

"25. After hearing both the learned counsel for parties and going through the Trial Court Record, I find force in the submission of learned counsel for appellant. Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. The 10 prepared two samples of 25 grams each after taking a small quantity from each of the slabs.

26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted.

27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then

definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative."

18. The fact of the present case is that prosecution has mixed all the

packets and thereafter, sent to FSL for examination, which is contrary to the

procedure prescribed under the law.

19. This Court is informed that the petitioner is a Somalian National

resident and his Refugee Certificate issued by UNHCR (United nation High

Commissioner for refugees) was valid till 20/12/2019. Hence, he has a valid

document to stay in India at the time of his arrest. He is in judicial custody

since 04.02.2019. No doubt the recovered substance in the present case is of

commercial quantity, however, the procedure prescribed is contrary to the

dictum of this Court. This court is informed by learned counsel for the

petitioner that petitioner is not a habitual offender and is not likely to get

involved in any other case during bail. Thus, petitioner has qualified twin