S.C. Jain, J.
(1) Namdi Francis Nwazor, a Nigerian national, the appellant herein was booked and tried for the offences punishable under Sections 21 and 28 read with Section 23 of the N.D.P.S. Act. The Trial Court by its detailed judgment and order dated 19.7,1991 found him guilty for the offence under Section 21 of the N.D.P.S.Act and sentenced him to undergo R.I. for ten years and a fine of Rs. 1 lakh and in default of payment of fine to further undergo R.I. for a period of one year. He was further sentenced to ten years R.I. and to pay a fine of Rs. 1 lakh and in default of payment of fine to further undergo R.I. for a period of one year for the offence punishable under Section 28 read with Section 23 of the N.D.P.S. Act. However, the substantive term of imprisonment was ordered to run concurrently.
(2) Aggrieved, that judgment and order has been challenged by the appellant by filing this appeal.
(3) In brief, the prosecution version is that the appellant is a Nigerian national. On 23.6.1987 he was to fly from New Delhi to Lagos via Bombay by Air India Flight No. AI-860 and for that purpose he reported for customs clearance in the International Departure Customs enclosure of Indira Gandhi International Airport, New Delhi at the Air India counter. A team of the Narcotics Control Bureau consisting of Mr. U.K. Mishra, Mr. D.C. Mishra and Mr. K.K. Sood, Intelligence Officers was present at the I.C.I. Airport, New Delhi. On suspicion it was decided by the team of the Intelligence Officers of N.C.B. to check the baggage which the appellant had booked. Before doing so, the Intelligence Officers organized a raiding party in which two independent witnesses,namely, Mr. Sita Ram (Public Witness 2), who was working as Traffic Assistant with Japan Airlines and Mr. Dhir Singh (Public Witness 5), who was working as senior loader with Air India at I.G.I. Airport, New Delhi were also included. The raiding party asked the appellant whether he was carrying some narcotics drugs or any other contraband goods and on his refusal, the luggage which was got booked by the appellant were searched. He was carrying two hand bags, one black zipper hand bag and one black coloured leather hand bag. As per the prosecution version, on examination of 'sky star' zipper suit case, which was got booked by the appellant, it was found to contain 153 cartons of Tetanus vaccine. All the cartons were opened and examined. 152 cartons were found to contain ampules but one carton was found to contain a polythene packet containing brown coloured powder closed with black adhesive tape. The brown coloured powder recovered from that carton was weighed and it came to 180 grams. The said powder believed to be heroin was seized by Mr. U.K. Mishra under the provisions of the N.D.P.S. Act vide Panchnama Ex Public Witness I/B, which was attested by Mr. Sita Ram (Public Witness 2) and Mr. Dhir Singh (Public Witness 5), the witnesses to the recovery. Three representative samples were drawn from the seized powder which were sealed in three envelopes marked as H-I, H-2and H-3. The envelopes containing the samples were sealed with the seal of N.C.B. bearing No. 08, under the signatures of the witnesses. The remaining brown powder believed to be heroin along with the adhesive tape was kept back in the same carton marked 'H' which was also sealed with the seal of N.C.B. No. 08 under the signatures of the witnesses. All the 152 cartons containing Tetanus Vaccine were kept back in the same 'sky star' suit case and the suit case was also sealed with the said seal of N.C.B. under the signatures of the witnesses.
(4) The prosecution version further goes on to say that the appellant was then examined under Section 67 of the N.D.P.S. Act and under Section 107 of the Customs Act and in his statement Ex Public Witness I/D he, inter alia, admitted the recovery of 180 grams of heroin from his possession and his attempt to export the same out of India. Other details were also given by this appellant in his statement recorded under Section 67 of the N.D.P.S. Act. One of the representative sample was sent to the Central Revenue Control Laboratory, New Delhi for analysis. The report Ex Pw I/G relating to the analysis of the sample disclosed that the sample which was in the form of brown powder answered test for the presence of diacetyl morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985. In respect of its version, the prosecution examined five witnesses, namely, Mr. U.K. Mishra, Intelligence Officer (Public Witness 1), Mr. Sita Ram (Public Witness 2), Mr. S.C. Johri, Chemical Examiner, Central Revenue Control Laboratory (Public Witness 3), Mr. V.K. Srivastava, Chemical Assistant, C.R.C.L (Public Witness 4), and Mr. Dhir Singh (Public Witness 5).
(5) Mr. U.K. Mishra, Public Witness 1, Mr. Sita Ram, Public Witness 2 and Mr. Dhir Singh, Public Witness -5 are the witnesses of recovery of 180 grams of heroin recovered from the baggage of the accused, its sampling, sealing and seizure vide Panchnama Ex Public Witness I/B. Mr. S.C. Johri, Public Witness 3 has proved report Public Witness 1/G relating to the analysis of the sample. Mr. V.K. Srivastava, Public Witness 4 prepared report Ex Public Witness 1/G after analysing the sample handed over to him by' Mr. S.C. Johri for the purpose of analysis.
(6) In his statement under Section 313 Cr.P.C. the appellant denied the allegations against him and claimed that he was falsely implicated. According to him, the baggage from which the heroin was allegedly recovered did not belong to him and the same belonged to another Nigerian, namely, Teetu Joseph. He also denied having made the statement Ex Public Witness 1/Dvoluntarily. According to him, the statement Ex Public Witness 1/D was allegedly recorded under Section 67of the N.D.P.S.Act was extracted from him under torture and as a result of merciless beatings. However, he did not lead any evidence in defense.
(7) The Trial Court after appreciating the evidence, documentary as well as oral,on record and hearing the arguments and pleas raised by the appellant and the prosecution found this appellant guilty for the said offences under Sections 21 and 23 read with Section 28 of the N.D.P.S. Act and convicted him as mentioned above.
(8) The main contention raised by the learned Counsel for the appellant is that the prosecution has failed to establish any connection of the appellant with the baggage from which the said heroin weighing 180 grams was allegedly recovered. Acceding to the learned Counsel, the record shows that the counterfoil of the baggage tag on the suit case in question Ex P-5 was not recovered from the person of the appellant which alone could connect the appellant with the baggage in question from where the heroin was recovered. According to the learned Counsel, Pw -2 also stated that whenever a passenger checks in baggage, tag is issued by the airlines which has two parts, one of the parts of this baggage tag is attached with the baggage and the other part is given to the passenger. He submitted that the counterfoil P-9 is not part of the baggage tag Ex P-6 found on the suit case. The baggage tag is thick made of thick paper and it had perforations at its end which goes to show that the stub had to be part of the same tag and not P-9 as subsequently relied upon by the prosecution. The learned Counsel pointed out that there has been a non-compliance of the mandatory provisions of Sections 50 and 57 of the N.D.P.S. Act. He submitted that in this case admittedly the appellant was not asked whether he would like to be searched before a Gazetted Officer or a Magistrate.
(9) The next point raised by the learned Counsel for the appellant is that according to the statement of Public Witness I the seal after use was not given to any independent witness but kept in the department, and this act on the part of the N.C.B. officials is also fatal to the case. He also pointed out that the key of the suit case P-5 has neither been produced nor seized and there is no mention of the key in the Panchnama. According to the learned Counsel, non-production of this key is also fatal to the prosecution case.
(10) Learned Counsel further argued that the person who is said to have delivered the sample to the Chemical Examiner has not been produced. Even the letter which was filed with the complaint does not bear the mention of the person who had delivered the sample to the Chemical Examiner. He argued that both Pw 3 and Public Witness 4 from the office of the Chemical Examiner have not been able to explain several cuttings and changes of the dates on Ex Public Witness I /6 and Ex Public Witness I /6-1. These are copies of the report. There are contradictions in the statements of both these witnesses Public Witness 3 and Public Witness 4. He submitted that the Trial Court failed to take notice of the material defects in the case of the prosecution.
(11) The learned Counsel challenged the statement of the appellant allegedly recorded under Section 67 of the N.D.P.S. Act. According to him, though the statement recorded under Section 67 of the N.D.P.S. Act is not hit by Section 25 of the Evidence Act, but in view of the Section 53A of the N.D.P.S. Act this statement so recorded loses its significance. According to the learned Counsel, no reliance can be placed on the alleged statement recorded under Section 67 of the N.D.P.S. Act. According to the learned Counsel, fouler the crime, higher the proof. In the cases under the N.D.P.S. Act where there is minimum punishment of 10 years R.I. and a fine of Rs. 1 lakh, a slight doubt is enough to earn an acquittal.
(12) Relying upon the decision of the Supreme Court in , the learned Counsel contended that in order to prove graver offences, the Court should require the standard of proof to be high. According to the learned Counsel, the said confessional statement allegedly recorded on 23.6.1987 was retracted later on by the appellant and on the basis of this confessional statement no conviction can be based in the absence of any corroboration.
(13) Mr. J.S. Arora, learned Counsel appearing for the Narcotics Control Bureau strongly countered the arguments advanced by the learned Counsel for the appellant and drew my attention towards various facts which are apparent on record. According to the learned Counsel for the respondent this appellant voluntarily made the statement, which is Ex Public Witness 1/Don 23.6.1987before the N.C.B. Officials, who recorded the same under Section 67 of the N.D.P.S. Act. According to him the accused did not retract this statement voluntarily made by him till 3.8.1987 and it was only after he had engaged a Counsel for his defense. He pointed out that earlier the accused had moved an application, but in that application he did not mention about extracting his confessional statement under torture and by using third degree methods. He had not mentioned that this statement was obtained by force and torture and by giving physical beatings till 3.8.1987. According to the learned Counsel, this defense now taken up by the appellant at this stage cannot be accepted as correct orgenuine. According to the learned Counsel, even on the basis of this confessional statement Ex Public Witness 1/D, which was made voluntarily, the conviction can be based and it needs no corroboration. He pointed out that even otherwise there are statements of independent witnesses besides the statements of the Intelligence Officers of the N.C.B. showing the recovery of the heroin from the baggage belonging to this appellant, taking out the sample and sealing the same and sending the sample to the Chemical Examiner for analysis. According to him, Chemical Examiner has himself made appearance to explain the cuttings of the dates. He also pointed out that there was no question of complying with the provisions of Section 50 of the N.D.P.S. Act in this case. It was on the search of the baggage belonging to this accused that heroin was recovered and the search was made in the presence of two independent witnesses. Countering the argument of the learned Counsel for the appellant that it has not been proved that the suitcase from which the heroin was allegedly recovered belonged to the appellant, learned Counsel for the respondent submitted that this appellant had himself got booked this suit case along with other baggage at the counter of the Air India. While booking the baggage, the boarding card and the booking slip Ex P9 and P-10 were duly given to him and the baggage tag had also been attached with these two baggages. Whether Ex P-9 and P-10 are the counter foils of the tags attached on the baggages is immaterial. It cannot be the case of the accused that these two documents Ex P-9 and P-10 were got fabricated later on. These were found tagged with the Air ticket of the appellant.
(14) Regarding the non-compliance of Section 57 of the N.D.P.S. Act, learned Counsel for the respondent pointed out that a report was immediately sent to the superior officer and there has been a due compliance of Section 57 of the N.D.P.S. Act. He also pointed out that the Chemical Examiner as well as the Assistant, who analysed the sample have been duly examined to explain the cuttings on the dates, though the report of the Chemical Examiner is admissible in evidence even without proof. The learned Counsel also stated that the Deputy Director sent the sample and there is no need that the person, who took the samples should be examined when according to the Chemical Examiner the samples were received with seals intact. Relying upon a Full Bench decision of the Punjab and Haryana High Court in Piara Singh vs. The State of Punjab 1982 .84 P.L.R. 244, the learned Counsel for the respondent argued that there is no statutory requirement nor a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith.
(15) Learned Counsel for the appellant submitted that the judgment passed by the Trial Court is based on the appreciation of the evidence and law and it needs no interference. Regarding the non-production of the key of the suit case, Ex P-5, he stated that it is not fatal to the present case in view of the confessional statement made by the appellant under Section 67of the N.D.P.S. Act and the statement of the public witness in whose presence the recovery was made from this suit case which was got booked by this appellant.
(16) Section 50[1] of the N.D.P.S. Act lays down that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall,if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. It has been contended on behalf of the appellant that this provision has not been complied with, which is a mandatory provision of law.
(17) There cannot be any controversy that this is a mandatory provision of law, but in the facts of the present case, it cannot be successfully urged that the provisions of Section 50 [1] of the N.D.P.S. Act. have not been complied with. Here it is the search of the suit case Ex P-5 which led to the recovery of the heroin. PW-1, Mr. U.K. Mishra, Intelligence Officer, Ncb has clearly stated in his statement that on search of the sky star zipper suit case. Ex P-5,153 cartons of tetanus vaccines were recovered. These cartons were opened and examined. 152 cartons were found to contain tetanus vaccine. The carton marked 'H' was found to contain a polythene packet containing brown coloured powder closed with black adhesive tape. The brown coloured powder recovered from that carton was weighed and it came to 180 grams. The said powder believed to be heroin was seized by Mr. U.K. Mishra under the provisions of the N.D.P.S. Act vide Panchnama Ex Public Witness 1/B, which was prepared in the presence of the witnesses and the accused on the spot. Mr. Sita Ram (Public Witness 2) , the other panch witness also corroborated the statement of Mr. U.K. Mishra, PW-1.
(18) As far as this part of the evidence led by the prosecution is concerned, there does not seem to be any dispute. The dispute is only with respect to the fact whether this suit case, Ex P-5 from which the said heroin was recovered belonged to the appellant or not. In this regard, it has come in the statement of Mr. U.K. Mishra, Public Witness I and which is also not in dispute that on 23.6.1987, the date of occurrence, the appellant, Namdi Francis Nwazor, a Nigerian National, was booked as outgoing passenger for Lagos [Nigeria) by Air India Flight No. AI-860. He was holding passport No. 1579027 and was holding Air India ticket No. 0984405171398 as an international passenger. This witness has further stated that one dark blue Sky star zipper suit case under Air India Tag No. 275163 was booked by this passenger and the baggage tag with that suitcase Ex P-5 was Ex P-6. He has proved the Air India ticket as Ex P-7 and the boarding pass as Ex P-8. He has also proved the counterfoil of Ex P-6 issued by the Air India office as Ex P-9. The dispute is with respect to this Ex P-9 whether it is the counterfoil of Ex P-6 or not. No doubt in reply to a Court question, Mr. U.K. Mishra, Public Witness 1 replied that as far as he understood the appearance of a baggage stub and the counterfoil are different. In fact there was no baggage stub but the counterfoil of the baggage tag bearing the same number which was found attached with the ticket of the for cross reference by the airlines. He explained that Ex P-6 being a document mainly concerning the airlines and the passenger for the purpose of proper identification of the baggage, he could not say as to what happened to the portion removed from Ex P-6, but he denied that slip Ex P-9 was not with the accused. In fact, it was attached with the air ticket. Ex P-9 bears the same number i.e. 275163 and it tallies with Ex P-6. There also cannot be any dispute that this dark blue sky star suit case. Ex P-5 was booked at the time of taking the boarding pass. The non recovery of its counterfoil from the accused does not make any difference when it is on record that this baggage Ex P 5 was booked by this appellant on 23.6.1987, who was holding the air ticket and against which he got the boarding pass. On the basis of the record available, the fact remains that this suit case Ex P-5 from which the heroin, was recovered belonged to the appellant/accused and this fact he has also admitted in his statement under Section 67 of the N.D.P.S. Act, which is Ex Public Witness 1 / D. The plea of the learned Counsel for the appellant that this statement Ex Public Witness I/D is hit by the provisions of Section 53A of the N.D.P.S. Act is not tenable. The statement made by the accused was recorded by the Intelligence Officer of the N.C.B., who is not a police officer,and it is admissible in evidence. Section 53A of the N.D.P.S. Act concerns a different aspect of the matter. As per the provisions of Section 53A the relevancy of the statement has to be seen. A statement made and signed by a person before any officer empowered under Section 53 for the investigation,of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving the truth of the facts which it contains, when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considered unreasonable; or when the person who made the statement is examined as a witness in the case before the Court and the Court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.
(19) The statement recorded under Section 67 of the N.D.P.S. Act is admissible in evidence, if it is made voluntarily and without any fear, inducement or coercion. As far as the voluntary nature of the statement made in this case is concerned, this statement was made on 23.6.1987. It was retracted for the first time on 3.8.1987 i.e. after more than 1/2 months after the accused engaged a Lawyer and got legal advice. It will not be out of place to mention here that earlier this appellant/ accused made an application before the Court for getting 'B' class facilities and even in that application he did not mention that the statement was obtained from him under force or coercion and by undue influence. That application forgetting 'B' class facilities was moved on 19.7.1987. Besides, a reading of the statement Ex Pw 1 /D shows that it contains so many things which could not be in the knowledge of the N.C.B. Officer, to whom it was made. Further the statement, which runs into 5 written pages, was recorded by the appellant himself in his own handwriting. This fact also gives credence to this statement. No suggestion was put to Public Witness -1 that this statement was obtained force, duress or coercion. The evidence coupled with the statement Ex Public Witness 1/D recorded under Section 67 of the N.D.F.S. Act makes it clear that the suit case Ex P-5 belonged to this appellant/accused from which the heroin was recovered besides other articles, which were taken into possession as per the Panchnama prepared in that regard. The Trial Court has discussed this matter in detail and it needs no interference.
(20) Regarding the non-compliance of Section 57 of the N.D.P.S. Act, Public Witness -1, Mr. U.K. Mishra has stated categorically that he reported this matter to his immediate official superior. He stated that he had sent his report regarding seizure in this case and that report must be available in the office of the N.C.B. Regarding the non-compliance of Section 55 of the Act, a careful perusal of the provisions of this Section shows that it is only an enabling provision and gives an option to the officer making a seizure under the Act to deposit the seized articles in the local police station and by no means it contains any mandate for such deposit. It further provides that if such deposit is made, the officer-in-charge of the police station is bound to take charge of it for safe custody and also to allow the officer making the deposit to take sample etc.
(21) Regarding the taking of samples and sending the same to the Chemical Examiner for analysis, Public Witness -I has stated that three representative samples were taken from the seized heroin and were sealed under his signatures and those of the public witnesses and the accused. Thereafter, three representative samples were sealed with the seal of the N.C.B. bearing No. 08,which were marked H-1, H-2 and H-3. The remaining brown powder along with the adhesive tape was kept back in the same carton marked '' and then the same were sealed with seal No.OS under his signatures and those of the public witnesses and the accused. He further stated that one representative sample was sent to the C.R.C.L. Laboratory, New Delhi on the same day with a covering letter Ex Public Witness 1 /5, bearing the specimen of the seal. Mr. S.C.Johri, Chemical Examiner, Public Witness -3, of C.R.C.L, New Delhi has stated that he received one sample from Mr. S.K. Wadhera, Intelligence Officer, N.C.B pertaining to this case along with the forward ing letter No. Ex PW 1/E. He allotted the sample to Mr. V.K.Srivastava, Chemical Assistant Grade Ii for analysis and the final report of the analysis, Ex Public Witness 1/G which bears his signatures at portion C. He stated that he had signed the said report after conducting two tests on the sample,namely, presumptive colour test and thin layer chromotographic. Public Witness 4, Mr. V.K. Srivastava, Chemical Assistant corroborated the statement of this witness. Regarding the cutting of dates this witness has stated that he had conducted test on different dates and had given the date of report at portion A and also signed at portion B but on 19-8-87 he conducted the Tlc test in the presence of Mr. S.C. Johri, and thereforee, the date and month were changed at both the portions. He stated that he changed the dates at portion A and B only once. He admitted a cutting at portion C of Ex Pw 4/A, but he gave an Explanationn that the said cutting was occasioned as he wrote something which was not required to be written. With regard to the overwriting and cutting at portion D of Ex Public Witness 4/A, he gave an Explanationn as has been given in respect of cutting in report Ex Public Witness I/G. According to him, the note book is page numbered so that nothing can be taken out or inserted in the note book. He further stated that whenever a sample is received an entry is made in the notebook. The samples are entered in the note book according to the date of their analysis and a sample received much later may be recorded in the note book first, if it is urgently required to be analysed.
(22) The cuttings on the report of the Chemical Examiner has been satisfactorily explained by the Chemical Examiner and the Chemical Assistant and no adverse presumption can be taken in this regard when both the Chemical Examiner and the Chemical Assistant have been examined and were cross-examined. The report could have been exhibited even in their absence, but by examining them as witnesses, the prosecution has given them an opportunity to explain the cutting of dates on this report, which has been done satisfactorily. The Trial Court in a detailed and elaborate manner has dealt with this aspect and it needs no interference.
(23) The non examining the person who actually delivered the sample along with the forwarding letter at the Chemical Laboratory does not make any difference because as per the statement of the Chemical Examiner the samples were received in the Laboratory with the seals intact along with the forwarding letter Ex P.W 1/F. The plea that the seal was not handed over to the public witness after use is also not tenable in view of the present circumstances of the case. There is neither a statutory requirement nor a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith. A Full Bench of the Punjab and Haryana High Court has held it so in the case of Piara Singh vs. State of Punjab 1982 84, P.L.R. 244.
(24) Regarding the not taking into possession the key of the alleged suit case, Ex P-5, it is also not fatal to the case of the prosecution in the present circumstances of the case. The Trial Court has discussed this aspect of the matter in detail and it needs no interference.
(25) The plea of the learned Counsel for the appellant that Mr. Dhir Singh, Pw 5, the other public witness has not supported the case of the prosecution and the benefit of doubt should have been given to the appellant is also not tenable in the present circumstances of the case. Besides the statement of the other public witness, Mr. Sita Ram, who appeared as Public Witness 2 and has supported the case of the prosecution in all material particulars, the evidence of Mr. U.K. Mishra, Public Witness 1 is also there to support the prosecution version. Besides this, the voluntary statement of the accused himself recorded under Section 67 of the N.D.P.S. Act also proves the case of the prosecution in all material particulars.
(26) Considering the evidence and other materials on record in all its bearing, there is no room for any reasonable doubt that from the possession of the appellant at the place, date and hour alleged by the prosecution, a quantity of brown powder was recovered which on test was found to be heroin. I find that there is no missing link to raise any doubt that the sample which was sent to and tested by the laboratory was not drawn from what was recovered from the possession of the appellant. There is also nothing on record to suspect the finding of the result of the examination which revealed that the sample responded to the test for heroin.
(27) Thus the appellant was found in possession of narcotic drug possession of which is prohibited by Section 8 of the Act except for the purposes specified therein. It is in the evidence that the appellant failed to account for his possession and indeed, he never took any plea that he was authorised to possess the contraband. Section 54 of the Act also permits a presumption that a person who possesses any narcotic drug has committed an offence under Chapter-4 of the Act,if he fails to explain his possession satisfactorily.
(28) Under these circumstances, the irresistible conclusion is that the appellant has committed offences punishable under Sections 21 and 28 read with Section 23 of the Act for unauthorised possession of the heroin and he has been rightly convicted and sentenced by the Court below. The appeal is,therefore, dismissed. The conviction and the sentences passed by the learned Additional Sessions Judge are confirmed. The appeal is disallowed.