Irwin Bin Hassim v. Anil Kumar, Air Customs Officer, Igi Airport

SANGITA DHINGRA SEHGAL, J. OCTOBER 09, 2017 gr//

* IN THE HIGH COURT OF DELHI AT NEWDELHI + Judgment reserved on 07.09.2017 Judgment pronounced on 09.10.2017 IRWIN BIN HASSIM ..... Appellant Through: Mr. Pramod Kumar Dubey with Ms. Namita Wali, Advocates. Versus ANIL KUMAR, AIR CUSTOMS OFFICER, IGI AIRPORT …Respondent Through: Mr. Amish Aggarwala with Mr. Satish Aggarwala, Advocates. CORAM: HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL 1. The present appeal has been instituted under Section 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 374(2) of Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") against the judgment and order dated 26.02.11 and 11.03.11 by which the appellant has been convicted for the offence under Section 20 (b)(ii)(C) & Section 28 read with Section 23(c) of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as "NDPS"). The present appellant has been sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs.2,00,000 /-(Cumulatively). 2. The case of the prosecution is that on 04.03.2008 accused namely Irwan Bin Hassim holder of Singapore passport No. S-7801707 D issued on 25.08.2004 was travelling to Rotterdam via Amsterdam by KLM Flight No. KL-872 on 04.03.2008 while he was proceeding for security check, his movement was found to be suspicious, hence the complainant decided to examine him and his baggage. The accused possessed with one checked in baggage bearing tag No. 0074 KL 175559 and one small white and green colour rexine bag tied on his waist. Notices U/s.102 of Customs Act and U/s 50 of NDPS Act were served upon the accused in the presence of two independent witnesses that he and his baggage were to be examined, and if he so desired, the same could be conducted in the presence of a Magistrate or a Gazetted Officer of Customs. The accused gave his consent for the search by any custom officer and made endorsement to this effect on both the notices. The checked-in baggage of the accused, make "Diplomat" bearing tag No. 0074 KL 175559, on opening was found to be containing personal effects of the accused and even the waist bag did not contain anything objectionable. On further search, the contents of the suitcase were taken out and the upper and lower covers of the suitcase were removed, which was found containing black colour fiber sheets which contained some adhesive material on the top and upper portion of the suitcase wrapped in light brown colour adhesive tape. Both the packets were taken out and opened which contained a black colour substance weighing 7.090 kgs. It was found to be 'Hashish' after the substance was tested on the Field Drug Test Kit and resultantly was then seized under NDPS Act. Further, three samples each of 30 grams were taken out in three different samples with the slip bearing the signatures of the witnesses, the accused and the complainant, the remaining substance was kept in a transparent polythene bag and sealed with custom seal No.6. The documents of the accused were seized and his statement was also recorded u/s 67 of NDPS Act, whereby he gave his family history. He also stated that during his visit to Delhi, he was handed over the alleged baggage by Mr. Nima who asked him that on delivering the same to Rotterdam he would be paid 3500 Euros and he had accepted this offer as he was in need of money to settle his debts. He also confessed that on earlier occasions he had delivered baggages containing drugs six times on the offer given by Mr Nima. 3. On the basis of the material placed on record, the charges u/s 20(b)(ii)(c) and u/s 28 read with 23(c) of NDPS Act were framed against the appellant. The prosecution examined 8 witnesses, in all. Statement of the appellant was recorded under Section 313 of Cr.P.C. wherein he denied all the allegations and even said that his suitcase was not opened in his presence and that he had not made any statement under Section 67 NDPS Act. He further stated that his signatures were taken