Case: Noor Aga Vs. State Of Punjab

Appellant is an Afghan national. He was arrested and later on prosecuted under Sections 22 and 23 of the Act allegedly for carrying 1 kg 400 grams of heroin as a member of crew of Ariana Afghan AirlinesAppellant arrived at Raja Sansi Airport at about 6 p.m. on 1.08.1997. He presented himself before the authorities under the Customs Act, 1962 (for short "the Customs Act") for customs clearance. He was carrying a carton with him said to be containing grapes. The cardboard walls of the said carton were said to have two layers. As some concealment in between the layers was suspected by one Kulwant Singh, an Inspector of the Customs Department, the appellant was asked as to whether he had been carrying any contraband or any other suspicious item. Reply thereto having been rendered in the negative, a search was purported to have been conductedKulwant Singh, who examined himself as PW-1 before the trial court, allegedly asked the appellant as to whether he intended to be searched by a Magistrate or a Gazetted officer of the Customs Department; in response whereto, he exercised his option for the latter, whereupon one Shri K.K. Gupta, Superintendent of the Customs Department and two independent witnesses, Mohinder Singh and Yusaf were sent for. K.K. Gupta disclosed his identity to the appellant as a Gazetted officer working in the Customs DepartmentThe layers of the walls of the carton were thereafter separated, wherefrom 22 packets of polythene containing brown powder were allegedly recovered. The same was weighed; the gross weight whereof was found to be 1 kg. 400 grams. Representative homogeneous samples from each packet in small quantities were taken weighing 5 gms. each. They were purported to have been sealed with a seal bearing No. 122 of the Customs Department. The cardboard carton was also sealed with the same seal. The recovered item being of brown colour was taken in possession vide recovery memo (Ex. PB), Panchanama (Ex. PC) prepared by Shri Kulwant Singh. The entire bulk was put into cotton bags and sealedARREST AND PURPORTED CONFESSIONSamples were sent to the Central Forensic Laboratory on 5.08.1997. The weight of the said samples was found to be 8.7 gms. The document is said to have been tinkered with, as the words "net weight" were crossed and converted into ‘gross weightThe alleged contraband was found to be of white colour containing Diacetyl Morphine. The report was submitted on 2.09.1997; on the basis whereof a complaint Ex. PL was filed in the Court and in a consequence thereof, appellant was to put on trial having been charged under Sections 22 and 23 of the ActAt the trial, the following witnesses were examined on behalf of the State:PW-1 Kulwant Singh-inspector Customs(Complainant and investigating officer)PW-2 KK Gupta- Superintendent-Customs (A Gazzeted Officer)PW-3 Ashok Kumar- Inspector, Customs Department (Deposited sample)PW-4 Rajesh Sodhi-Deputy Commissioner Custodian of case property from 1-8-97 to 4-897PW-5 KK Sharma-inspector Incharge-MalkhanaAppellant, in his examination under section 313 of the Code of Criminal Procedure in categorical terms denied that the carton belonged to him. He also retracted from his alleged confessionThe learned Additional Sessions Judge by his order and judgment dated 7.06.2000 convicted the appellant under Sections 22 and 23 of the Act and sentenced him to undergo rigorous imprisonment for 10 years and also imposed a fine of Rs. 1 lakh on himAggrieved by and dissatisfied with the said judgment and order of the learned Additional Sessions Judge, the appellant filed an appeal before the High Court of Punjab and Haryana. The High Court dismissed the said appeal by a judgment and order dated 9.06.2006. Appellant is, thus, before us

Reasoning:
Our aforementioned findings may be summarized as follows:1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India2. However, procedural requirements laid down therein are required to be strictly complied with3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellants guilt4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecutions case must be held to be lacking in credibility5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law6. The investigation of the case was not fair