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TMI Blog2008 (7) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... irport 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 conducted. Kulwant 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 Department. The layers of the walls of the carton were thereafter separated, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ample) PW-4 Rajesh Sodhi-Deputy Commissioner Custodian of case property from 1-8-97 to 4-897 PW-5 KK Sharma-lnspector Incharge- Malkhana Appellant, 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 confession. The 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 him. Aggrieved 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. CONTENTIONS Ms. Tanu Bedi, learned counsel appearing on behalf of the appellant, in support of this appeal, submits: (i) The provisions of Sections 35 and 54 of the Act being draconian in nature imposing reverse burden on an accused and, thus, being contrary to Article 14 (2) of the International Covenant on Civil and Polit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rference. (iv) Any confession made before the customs authorities in terms of Section 108 of the Customs Act is not hit by Section 25 of the Indian Evidence Act and the same, thus, being admissible in evidence could have been relied upon for the purpose of recording a judgment of conviction. AN OVERVIEW OF THE STATUTORY PROVISIONS Before embarking upon the rival contentions of the parties, as noticed hereinbefore, it is appropriate to notice the relevant provisions of the Act as also the Customs Act, 1962. The purported recovery was made by the Customs Department. In terms of the provisions of the Act they were entitled to make investigations as also file the chargesheet. The Act was enacted to consolidate and amend the law relating to narcotic drugs to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. It was enacted to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and the matters connected therewith. Section 2(xiv) of the Act defines "narcotic drug" to mean coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. "Il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich shall not be less than one lakh rupees but which may be extended to two lakh rupees. The proviso appended thereto, however, empowers the court, for reasons to be recorded in the judgment, to impose a fine exceeding two lakh rupees. Section 35 of the Act provides for presumption of culpable mental state. It also provides that an accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. Section 54 of the Act places the burden of proof on the accused as regards possession of the contraband to account for the same satisfactorily. Section 37 of the Act makes offences cognizable and non-bailable. It contains a non-obstante clause in terms whereof restrictions have been imposed upon the power of the court to release an accused on bail unless the following conditions are satisfied: "(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any purpose of,- (a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or (c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn." Indisputably, the proper officers of the 1962 Act are authorized to take action under the Act as regards seizure of goods, documents and things. We may notice Section 110 of the 1962, sub-section (1) whereof reads as under: "110. Seizure of goods, documents and things. - (1) If the proper officer has reason to believe that any goods ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd constraints of proper storage space; Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), (hereinafter referred to as `the Act'), the Central Government hereby determines that the drugs specified in the aforesaid Notification shall be disposed off in the following manner..." These guidelines under the Standing order have been made under Statute, and Heroin is one of the items as substances listed for disposal under Section I of the Standing Order. Paragraphs 3.1 and 6.1 of the Standing Order read as under: "Preparation of inventory 3.1 After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchnama. Original wrappers shall also be preserved for evidentiary purposes. Certificate of destruction 6.1 A certificate of destruction (in triplicate (Annexure III) containing all the relevant data like godown entry, no., file No., gross and net weight of the drugs seized etc. shall be prepared and duly endorsed by the signature of the Chairman as well as Members of the Committee. This could also serve the purpose of panchanama. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that may be orally conveyed by the informant. Draconian provision which may lead to a harsh sentence having regard to the doctrine of "due process" as adumbrated under Article 21 of the Constitution of India require striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the other." Application of international law in a case involving war crime was considered by the Constitutional Court of South Africa in State v. Basson [2004 (6) BCLR 620 (CC)] opining: "The rules of humanitarian law constitute an important ingredient of customary international law. As the International Court of Justice [("the ICJ)] has stated, they are fundamental to the respect of the human person and "elementary considerations of humanity. The rules of humanitarian law in armed conflicts are to be observed by all States whether or not they have ratified the Conventions that contain them because they constitute intransgressible principles of international customary law. The ICJ has also stressed that the obligation on all governments to respect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Edn.) page 56, it is stated: "Harking back to Woolmington, it will be remembered that Viscount Sankey said that "it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and subject also to any statutory exception". ... Many statutes shift the persuasive burden. It has become a matter of routine for Parliament, in respect of the most trivial offences as well as some serious ones, to enact that the onus of proving a particular fact shall rest on the defendant, so that he can be convicted "unless he proves" it." But then the decisions rendered in different jurisdictions are replete with cases where validity of the provisions raising a presumption against an accused, has been upheld. The presumption raised in a case of this nature is one for shifting the burden subject to fulfillment of the conditions precedent therefor. The issue of reverse burden vis-`-vis the human rights regime must also be noticed. The approach of the Common Law is that it is the duty of the prosecution to prove a person guilty. Indisputably this common law principle was subject to parliamentary legislation to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he is to be convicted of the offence charged." Lord Steyn stated the law thus :- "Taking into account that section 28 deals directly with the situation where the accused is denying moral blameworthiness and the fact that the maximum prescribed penalty is life imprisonment, I conclude that the appellant's interpretation is to be preferred. It follows that section 28 derogates from the presumption of innocence. I would, however, also reach this conclusion on broader grounds. The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance. I do not have in mind cases within the narrow exception "limited to offences arising under enactments which prohibit the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile construing Section 6(6) of the Misuse of Drugs Act, 1975 the New Zealand Supreme Court held as under : "In the context of a prosecution for an offence of possession of controlled drugs for the purpose of supply, that reversal of the onus of proof is obviously inconsistent with the aspect of the presumption of innocence that requires the Crown to prove all elements of a crime beyond reasonable doubt. While the Crown must prove to that standard that the person charged was in possession of the stipulated quantity of drugs, the jury can convict even if it is left with a reasonable doubt on the evidence over whether the accused had the purpose of supply of the drugs concerned. Indeed, as Lord Steyn pointed out in R v Lambert, the jury is obliged to convict if the version of the accused is as likely to be true as not." However, in our opinion, limited inroad on presumption would be justified. We may consider the question from another angle. The doctrine of res ipsa loquitur providing for a reverse burden has been applied not only in civil proceedings but also in criminal proceedings. [See Alimuddin Vs. King Emperor (1945 Nagpur Law Journal 300]. In Home vs. Dorset Yacht Company [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s followed in Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1]. We may, however, notice that the principle of `res ipsa loquitur' has been applied in State of A.P. v. C. Uma Maheswara Rao & Anr. [2004 (4) SCC 399] {see also B. Nagabhushanam v. State of Karnataka (2008) 7 SCALE 716}. The Act specifically provides for the exceptions. It is a trite law that Presumption of innocence being a human right cannot be thrown aside, but it has to be applied subject to exceptions. Independence of judiciary must be upheld. The superior courts should not do something that would lead to impairment of basic fundamental and human rights of an accused. We may incidentally notice a decision of the Privy Council in an appeal from the Supreme Court of Mauritius in The State v. Abdul Rashid Khoyratty, [2006] UKPC 13. In that case, an attempt on the part of the Parliament to curtail the power of the court to grant bail in respect of the Dangerous Drugs Act (Act No.32 of 1986) was held to be unconstitutional being contrary to the doctrine of separation of power, necessary to protect individual liberty stating that the power to grant bail is exclusively within the judicial domain. A constitutional amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice - where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment." The above stated principles should be applied in each case having regard to the statutory provisions involved therein. We may, however, notice that recently in M/s. Seema Silk & Sarees & Anr. v. Directorate of Enforcement & Ors. [2008 (7) SCALE 624], in a case where the constitutionality of the provisions of Sections 18(2) and 18 (3) of the Foreign Exchange Regulation Act, 1973 were questioned on the ground of infringing the `equality clause' enshrined in Article 14 of the Constitution of India, this Court held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs.2,00,000/- as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of `wider civilization'. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab v. Baldev Singh, (1999) 3 SCC 977, it was stated: "It must be borne in mind that severer the puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunities to effectively defend himself. In Sheldrake v. Director of Public Prosecutions [(2005) 1 All ER 237] in the following terms: "21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirements of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, open to their Lordships in Sheldrake to interpret section 5(2) as only imposing an evidential burden on the defendant. Lord Bingham referred to the courts' interpretative obligation under the Human Rights Act 1998 s3 as "a very strong and far-reaching one, and may require the court to depart from the legislative intention of Parliament" ([2004] UKHL 43, para 28). However, he must also have had in mind further dicta from the recent judgment in Ghaidan v Godin-Mendoza: "Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention rights" (Lord Nicholls, [2004] UKHL 30, para 19. Also see Johnstone [2003] UKHL 28, para 51). That is, the Courts should generally defer (11) to the Legislature or, at least, allow them a discretionary area of judgment (R v DPP, ex p Kebilene [1999] UKHL 43; [2000] 2 AC 326, 380- 381). (Lord Hoffman has criticised the use of the term `d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal rather than an evidential burden on the defendant and to take into account other Convention rights, namely the right to life of members of the public exposed to the increased danger of accidents from unfit drivers (European Convention on Human Rights and Fundamental Freedoms, article 2). That is, there were sound policy reasons for imposing a reverse legal burden, which will be the subject of further discussion in the second part to this article." Whereas in India the statute must not only pass the test of reasonableness as contained in Article 14 of the Constitution of India but also the `liberty' clause contained in Article 21 of the Constitution of India, in England it must satisfy the requirements of the Human Rights Act 1998 and consequently the provisions of European Conventions of Human Rights. Placing persuasive burden on the accused persons must justify the loss of protection which will be suffered by the accused. Fairness and reasonableness of trial as also maintenance of the individual dignity of the accused must be uppermost in the court's mind. In a case involving infringement of trade mark, the House of Lords in R. v. Johnstone [(2003) 3 All ER 884] stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire a trader, should need arise, to prove on the balance of probability that he honestly and reasonably believed the goods were genuine." The same principle applies to this case. CASE AT HAND Confession of the Appellant With the aforementioned principles in mind, let us consider the evidence brought on record by the respondents. We may, at the outset, notice that a fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act. It refers to leading of evidence, production of document or any other thing in an enquiry in connection of smuggling of goods. Every proceeding in terms of sub-section (4) of Section 108 would be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. The enquiry contemplated under Section 108 is for the purpose of 1962 Act and not for the purpose of convicting an accused under any other statute including the provisions of the Act. Appellant contended that the purported confessions recorded on 2.08.1997 and 4.08.1997 were provided by an officer of the Customs Department roughly and later the same were written by him under threat, duress and under gun point and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out that the power of a Police Officer as crime detection and custom officer as authorities invested with a power to check the smuggling of goods and to impose penalty for loss of revenue being different, they were not Police Officers but then the court took notice of the general image of police in absence of legislative power to enforce other law enforcing agencies for the said purpose in the following terms : "23. It is also to be noticed that the Sea Customs Act itself refers to police officer in contradistinction to the Customs Officer. Section 180 empowers a police officer to seize articles liable to confiscation under the Act, on suspicion that they had been stolen. Section 184 provides that the officer adjudging confiscation shall take and hold possession of the thing confiscated and every officer of police, on request of such officer, shall assist him in taking and holding such possession. This leaves no room for doubt that a Customs Officer is not an officer of the Police. 24. Section 171-A of the Act empowers the Customs Officer to summon any person to give evidence or to produce a document or any other thing in any enquiry which he be making in connection with the sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If be does, he will be a police officer." Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal [ILR (1884) 6 All. 509] to put a stop to the extortion of confession, by taking away from the police officers as the advantage of proving such extorted confession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose. The Act is a complete code by itself. The customs officers have been clothed with the powers of police o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which stood retracted should be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon." [See also Babubhai Udesinh Parmar v. State of Gujarat, (2006) 12 SCC 268 ]. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras [(1999) 6 SCC 1], whereupon reliance has been placed by the High Court, this Court had used retracted confession as a corroborative piece of evidence and not as the evidence on the basis whereof alone, a judgment of conviction could be recorded. There is another aspect of the matter which cannot also be lost sight of. A search and seizure or an arrest made for the purpose of proceeding against a person under the Act cannot be different only because in one case the authority was appointed under the Customs Act and in the other under another. What is relevant is the purpose for which such arrest or search and seizure is made and investigation is carried out. The law applicable in this behalf must be certain and uniform. Even otherwise Section 138B of the 1962 Act must be read as a provision containing certain important features, namely: (a) There should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegedly in possession of was, in fact, heroin." Indisputably, the cardboard carton was not produced in court being allegedly missing. No convincing explanation was rendered in that behalf. The High Court, in its judgment, stated: "The case set up by the prosecution is that the appellant being a member of a crew party, was in possession of his luggage, which included the cardboard carton, from which the recovery of heroin was allegedly effected. The appellant himself had presented the said carton along with the other luggage for custom clearance. From these facts, at least one thing is clear that the carton which was carrying the contraband, was under his immediate control. The argument advanced by Mr. Guglani is that the luggage which was being carried by the crew members, had no specific identification slips as in the case of an ordinary passenger travelling in an aircraft. So what was being carried in the carton was within the knowledge of the appellant alone and, therefore, the element of possession and control of the contraband qua the appellant is writ large and the presumption of culpable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are issued. 16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. 17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution. Omission on the part of the prosecution to produce evidence in this behalf must be linked with second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time any prayer had been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of Magistrate as envisaged under Section 52A of the Act in terms whereof the officer empowered under Section 53 upon preparati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided for under Section 52A of the Act is not alluded to. The High Court in its judgment purported to have relied upon an assertion made by the prosecution with regard to prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to destruction of case property, stating: "To a specific query put to Mr. Guglani by the Court with regard to aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained u/s 100 (1B) of Customs Act. He states that in this regard, a sample as per the provisions contained in sub clause (c) to clause (1B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed. May be, in my view, some irregularities are committed in this case by the Customs Department while obtaining the order Exhibit PJ) from the court for the reason that if the case property was to be destroyed, at least a notice should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The fate of these samples is not disputed. Two of them although were kept in the malkahana along with the bulk but were not produced. No explanation has been offered in this regard. So far as the third sample which allegedly was sent to the Central Forensic Science Laboratory, New Delhi is concerned, it stands admitted that the discrepancies in the documentary evidence available have appeared before the court, namely: i) While original weight of the sample was 5 gms, as evidenced by Ex. PB, PC and the letter accompanying Ex.PH, the weight of the sample in the laboratory was recorded as 8.7 gms. ii) Initially, the colour of the sample as recorded was brown, but as per the chemical examination report, the colour of powder was recorded as white. We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the seals were intact but what was not noticed by the High Court is that there are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of the physical evidence was not faulted. It was not done in the present case. PW-1 Kulwant Singh, Inspector-Customs, in his deposition, stated: "I had told the accused that I asked the accused that his search be conducted under Section 50 of the N.D.P.S. Act before a gazetted officer or a magistrate. I did not mention this fact in the panchanama Ex. PC. It is incorrect to suggest that version in Ex. PA was roughly drafted by the department and given to the accused for writing. It is also incorrect to suggest that the accused was not aware of the provisions of Section 50 of the N.D.P.S. Act, 1985. It is incorrect to suggest that after the recovery of heroin from the cartoon, the option for the personal search of the accused was given to the accused that whether he be searched before a gazetted officer or before a magistrate. It is correct that on the panchanama Ex. PC on thumb i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and cases are pending before this court." PW-1 stated that seal had been given to PW-4, Rajesh Sodhi, Deputy Commissioner, but PW-4 denied the same. His deposition, inter alia, is to the following effect: "In August 1997, I was posted at A.C. In charge Raja Sansi Airport. On 1.8.1997, heroin One kg. 460 grams was recovered from the accused (1.460 Kgs.). This recovery was made by Inspector Kulwant Singh and K.K. Gupta Supdt. Customs and I was informed of this recovery. Samples and remaining bulk were handed over to me by Kulwant Singh, Inspector bearing seal No.122 of the Customs Divn. Amritsar. There is no Malkhana of the Customs department at the Raja Sansi Airport. On 4.8.1997 samples were handed over to Ashok Kumar for taking to the Central Revenue Control Laboratory, Delhi. Remaining case property was given to Kulwant Singh for depositing the same in Malkhana at Amritsar. So long as the case property remained in my possession the same was not tampered with. Cross-examination by Sh. D.S. Attari, Adv. I was not given sample seal along with the case property by Inspector Kulwant Singh. Sample was of 5 grams. I do not remember whether 5 grams weight was gross or net. I did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted." Independent Witnesses It is accepted that when the appellant allegedly opted for being searched by a Magistrate or a Gazetted Officer, Kuldip Singh called K.K. Gupta, Superintendent Customs, PW2) and independent witnesses Mahinder Singh and Yusaf. Whereas K.K. Gupta was examined as PW2, the said Mahinder Singh and Yusuf were not examined by the prosecution. There is nothing on record to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. It is one thing to say that even applying the well-known principles of law, they are found to be guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience or otherwise. PW1 states that he had asked th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 are not ultra vires the Constitution of India. 2. However, procedural requirements laid down therein are required to be strictly complied with. 3. 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 appellant's guilt. 4. 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 prosecution's case must be held to be lacking in credibility. 5. 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 law. 6. The investigation of the case was not fair. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. Before, however, parting with this judgment, we would like to place emphasis on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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