K.S. Garewal, J.
1. Inder Singh, an Afghan national, has filed the present appeal against his conviction by the learned Additional Sessions Judge, Amritsar for offence under Section 22 (possession of psychotropic substances) and Section 23 (illegal importation into India and psychotropic substances) of the Narcotic Drugs and Psychotropic Substances Act (for short `the Act''). Inder Singh was sentenced to undergo rigorous imprisonment for 15 years on both counts and to pay a fine of Rs. 1.00 lac each on both counts. In default of payment of fine to further undergo rigorous imprisonment for one year. Both the sentences were directed to run concurrently. Feeling aggrieved Inder Singh has come up in appeal.
2. Inder Singh took the Ariana Afghan Airlines flight from Jalalabad (Afghanistan) to Amritsar on May 19, 1997. The flight landed at Raja Sansi Airport at 6 P.M. Inder Singh travelled on Afghan Passport GA 786/23 (in the passport the name has been spelled as Hindar Singh). It is not clear why Inder Singh lingered on in the arrival lounge and did not clear immigration until 00.45 a.m. on May 20, 1997. It was only at this time, when he was one of the last two passengers, that he approached the Customs Counter for clearance. He was asked by the Customs Officer about what was he carrying. Inder Singh declared that he was carrying some crockery, shampoo and talcum powder but no contraband. Somehow Varinder Parbhakar (PW 2), Superintendent Customs on duty at the airport, noticed that Inder Singh had become perplexed. V. Parbhakar disclosed his identity to Inder Singh and also asked him whether he wanted to be searched before a Gazetted Officer or a Magistrate. Inder Singh gave his consent vide memo Ex. PA that he was prepared to be searched in the presence of any Officer. The consent memo was signed by Inder Singh after it had been prepared by Inspector Pushpdeep Singh (PW1) who was posted as Inspector Customs at the airport. The memo was apparently also attested by Varinder Parbhakar. The Customs Officer joined two independent witnesses, namely, Kailash Singh and Balwinder Singh to witness the search of Inder Singh''s bag. The search revealed that Inder Singh was carrying 118 containers of talcum powder and 12 plastic bottles of shampoo. On opening the containers of talcum powder it was discovered that 34 containers contained brown powder in polythene bags. On opening the shampoo bottles it was found that 8 bottles contained brown powder in polythene bags and 4 contained while powder (heroin) also in polythene bags. The Customs Officer tested the brown white powders at the spot and also weighed the recovered substances. The brown powder weighed 10.440 kgs while the white powder weighed 350 grams. Samples were extracted. Weighment sheet Ex. PC, Panchnama Ex. PD and recoverycumseizure memo Ex. PE were prepared at the spot by Inspector Pushpdeep Singh (PW 1). These were signed by Inder Singh in Punjabi. Kailash Singh also signed in Punjabi while Balwinder Singh thumb marked these documents. V. Parbhakar also attested these documents. Inder Singh was arrested. On his personal search a $ 50 note, a wrist watch, an identity card, airline ticket, a bill issued by M/s. Fazal Traders, residential permit and prescription slip of Dr. K.K. Arora were recovered. The personal search memo Ex. PG and arrest memo Ex. PH were prepared.
3. Thereafter, a detailed report of the seizure was sent by the investigating officer to his immediate superior officer. The samples were sent for analysis to Central Revenues Control Laboratory, New Delhi. The Chemical Examiner vide report Ex. PF concluded that each of the samples contained diacetylmorphine (heroin) and the percentage of diacetylmorphine in each of the samples was also recorded therein. Case property was deposited with Ravinder Kumar.
4. On the basis of the above, Inspector Pushpdeep Singh presented a complaint under Sections 21, 22 and 23 of the Act and Section 135 of Customs Act, 1962 relating to seizure of 10.790 kgs of heroin. The complaint was filed on August 12, 1997 before Chief Judicial Magistrate, Amritsar and on its basis Inder Singh was sent up for trial and his case was committed to the Court of Sessions. Charge was framed against Inder Singh on October 14, 1997 to which he pleaded not guilty and claimed to the tried.
The prosecution examined Inspector Pushpdeep Singh (PW1), Superintendent Varinder Parbhakar (PW2), Inspector Jugraj Singh (PW3), Superintendent Rajinder Kumar (PW4) and closed the case. The two independent witnesses Kailash Singh and Balwinder Singh were given up as having been won over by the accused. The accused was examined without oath under Section 313 Cr.P.C. He admitted that he had arrived at Raja Sansi Airport by Ariana Afghan Airlines flight on May 19, 1997 at 6 P.M. and that he travelled on Afghan Passport GA 786123. He also admitted that he reported at the Customs Counter at 0.45 A.M. on May 20, 1997 and was one of the last two passengers. He also admitted that on being asked he had declared that he was carrying crockery, shampoo and talcum powder but no contraband. However, he denied all other aspects of search of his bag and seizure of heroin. He stated that the witnesses were from the Customs Department who had deposed against him because he had refused to pay Rs. 20,000/ for clearing his baggage. When called upon to enter defence Inder Singh examined Inspector Suresh Kumar (DW 1).
5. The learned trial Judge came to the conclusion that provisions of Section 15 of the Act had not been complied with. The learned Judge also concluded that V. Parbhakar did not sign the consent memo Ex. PA, Jama Talashi Ex. PG and arrest memo Ex. PH. Parbhakar''s signatures on the weighment sheet were on one corner of the sheet. His signatures on Panchnama Ex. PD, also appeared on the left margin. Similarly, his signatures on recoverycumseizure memo Ex. PE were on the left side margin. All this showed that the signatures had been procured at a later stage and Parbhakar did not witness the recovery. Furthermore, the learned Judge held that the Investigating Officer had failed to comply with the provisions of Section 57 of the Act as there was no document on record to establish that any detailed report had been sent to the senior officers by the Assistant Officer. However, the learned Judge concluded that since the recovery was not on the basis of personal search but on the basis of search of baggage the provisions of Section 50 of the Act were not applicable. The evidence of Inspector Pushpdeep Singh was accepted and conviction was recorded against the appellant.
6. In appeal the learned counsel for the appellant has argued that since V. Parbhakar (PW 2) had not been found present at the time of the recovery of the drugs and Inspector Pushpdeep Singh (PW 1) was not a Gazetted Officer, the provisions of Section 50 of the Act had been violated. The recovery had taken place after mid night on the basis of suspicion, therefore, it was incumbent upon the Inspector to obtain a search warrant or authorisation from a proper officer as required by Section 41 of the Act. Recovery without authorisation was vitiated. The conviction was also challenged on the ground that the learned Judge had not come to any conclusion with regard to the nature of the drugs which had been analysed and reported by the laboratory, therefore, no conviction could be recorded under Sections 22 and 23 of the Act. The appellant was a passenger on a flight which had landed at Amritsar and psychotropic substances had been found from his bag. Therefore, offence under Section 135 of the Customs Act had also made out but this factor had not been considered. According to the learned counsel the investigating officer had not sent any report to his senior officer as per the requirement of Section 57 of the Act, therefore, the whole investigation procedure was shrouded in suspicion. Lastly, it was argued that the three statements of the appellant recorded by the Inspector under Section 108 of the Customs Act showed that these were not voluntarily and had been recorded to bolster the prosecution case. The prosecution could get any benefit of these statements.
7. The sum and substance of the case against the appellant was that he had arrived at Amritsar Airport (Raja Sansi) on an International flight from Jalalabad (Afghanistan). The flight had arrived at 6 P.M. The appellant reported at the Customs Counter only at 00.45 A.M. The appellant''s baggage was searched and 10.790 kg of heroin, concealed in talcum powder containers and shampoo bottles, was recovered. The recovered drugs consisted of 42 packets of brownish powder weighing 10,440 kgs and 4 packets of white powder weighting 350 grams. Both powders were found to be heroin. On analysis by the Chemical Examiner of the Laboratory each sample had been found to contain diacetylmorphine in various percentages. It is true that the two independent witnesses Kailash Singh and Balwinder Singh were not examined and V. Parbhakar was also found to have appended his signatures on the memos subsequently, long after the recovery. The question to be considered is whether the evidence was sufficient to hold the appellant guilty of the offences of importation and possession of psychotropic substances.
8. The first and foremost circumstance which stands out against the appellant is the fact that he does not deny the ownership of the bag from which the talcum powder and shampoo were recovered in which the heroin was concealed in plastic packets. The appellant could very well have stated that his luggage had been mixed up with the luggage of some other passenger or that the bag had been planted on him. The reason why such a counter story would not have succeeded is that the appellant was the last passenger to report for customs check. It was not as if there was a big rush of passengers and the appellant by mistake had picked up somebody else''s bag. Since the appellant could not have committed such a mix up of bags, it must be held that the ownership of the bag from which heroin was recovered could not have been denied at all by the appellant under any circumstances. Therefore, the appellant had quite sensibly accepted that the bag was his.
9. The next question which is required to be considered is whether the relevant procedural safeguard mentioned in Chapter V of the Act had been observed. If one examines the procedure it will be apparent that Section 41 requires the Special Magistrate to issue warrant for arrest of any person whom the Magistrate has reason to believe has committed an offence or for search whether any psychotropic substance had been concealed. The provision would not be applicable in the present case since the recovery was not on the basis of any prior information but was on the basis of chance interception of a passenger who arrived at the Customs Counter after landing in India. It is clear that Section 42 could be applicable in the present case. This section entitles any officer of the Customs who has been empowered by the Central Government, if he has reason to believe from personal knowledge that an offence under the Act has been committed, to detain and search, and if he thinks proper, arrest any person whom he has reason to believe has committed any offence. Reference may be made to Section 42(1)(d). This provision is only for detention and search between sunrise and sunset but the proviso to this provision entitles the officer to act even between sunset and sunrise after recording the grounds of his belief that search warrant could not be obtained without affording the offender any opportunity to escape. The arrival of the appellant at the Customs Counter at 00.45 A.M. presented a fait accompli and was by itself sufficient reason for the Inspector to detain and search him. Inspectors of the Customs Department are trained to spot persons who may be carrying drugs or psychotropic substances or dutiable items. There was no need for the Inspector to record any grounds of his belief or send a copy of those grounds to the officer immediately superior to him within 72 hours as provided by subsection (2). In any case the power of seizure and arrest in public place, the airport being public place, is given to Customs Officers under Section 43(b) of the Act and there may be no requirement to record any grounds for belief as required by the proviso to Section 42. The search of the appellant had been effected by Inspector Pushpdeep Singh (PW1) in exercise of powers under Section 43 of the Act and cannot be faulted on the ground that the guidelines of Section 50 have not been fulfilled. The latter provision is only applicable where the officer is about to carry out personal search of any person. In other words the provisions would apply only if the search is of the person but would not be applicable when the officer is to search the baggage carried by a passenger arriving on an international flight.
10. In the present case it could be said that if at all there was a violation of the procedure it was in the failure of the investigating officer to make a full report of the particulars of the arrest and seizure of Inder Singh to his immediate superior. The learned Judge found that the provisions of section 57 had not been complied with but yet recorded conviction. These provisions are not mandatory in nature and violation of these provisions would be ipso facto vitiate the trial or conviction Gurbax Singh v. State of Haryana, 2001(1) RCR(Crl.) 702 (SC) : AIR 2001 SC 1002.
11. The statements of Inder Singh recorded on May 20, 22 and 25 (Exs. PJ, PK and PL) by Superintendent, Customs were not relied upon by the prosecution and were not taken as circumstances appearing against the accused when his statement under Section 313 Cr.P.C. was recorded. Therefore, what the material these statements contained cannot be used. Consequently, if these statements have some incriminating material or were recorded under coercion would not be a factor at all either in favour of the prosecution or against the appellant. The statements were altogether ignored by the trial Court and have no bearing on the case.
12. Circumstances of this case are quite clear and have been successfully established by the prosecution. The appellant on arrival at Amritsar (Raja Sansi) was intercepted at the Customs Counter and when his bag was searched he was found to be carrying 10.790 kgs of heroin. One cannot help observing that the recovery of any substance or article from the baggage of an international passenger on arrival at the customs post positively and without doubt proves that the recovery was from the passenger''s possession and that the substance had been imported by him. Recovery from a car, a house or on personal search is open to so much doubt but in the present case there can be no doubt at all. If a small fish is found in a milk bottle there can be no doubt that the milk is adulterated with river water. Same is the case herein. The quantity of heroin was considerable which the appellant had tried to import into the country and indeed did import by entering India after the immigration clearance was given to him, his passport Ex. P7 was duly stamped and temporary residential permit under the Foreigners JUDGMENT 1948 was granted (Ex. P9), therefore, the appellant was guilty for having committed the offence under Sections 22 and 23 of the Act. The prosecution did not suffer from any serious infirmities which could be said to have seriously prejudiced the appellant''s trial. The case of the prosecution was fully proved against the appellant. The order of conviction calls for no interference.
13. Resultantly, the appeal is dismissed. However, it appears that the appellant was probably a carrier and possible an unwary one, therefore, the sentence is reduced from 15 years to 10 years rigorous imprisonment on both counts. Sentence of fine shall stand as before and both sentences shall run concurrently.
14. The appeal stands disposed of in the above terms.
