TMI Blog2013 (3) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Central Revenues Control Laboratory is to effect that samples were received in seal intact condition – Difference in weight is not of such nature which may cause doubt on prosecution case7 – Fact remains that on chemical examination, both parcels answer positive test for diacetyl morphine (heroin) – Therefore, minor difference in weight of samples is not sufficient to doubt prosecution case – In view of discussion, judgment of conviction is based on correct appreciation of evidence – Decided against Appellant. - CRA No.11-DB of 2010, CRA No.22-DB of 2010 - - - Dated:- 26-3-2013 - MR. HEMANT GUPTA MS. RITU BAHRI Mr. Sumit Sharma, Advocate, for the appellants. Mr. D.D.Sharma, Advocate, for the respondent. JUDGEMENT HEMANT GUPTA, J. This order shall dispose of aforementioned two appeals i.e. CRA No.11-DB of 2010 and CRA No.22-DB of 2010 preferred by Fatima Bibi and Mumtaz, the two sisters, respectively against the judgment of conviction and order of sentence dated 08.12.2009 passed by the Special Court, Amritsar whereby both the appellants were convicted for the offences punishable under Sections 21 23 of the Narcotic Drugs Psychotropic Substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge of possessing contraband (heroin) is proved against the appellants and, therefore, convicted and sentenced in the manner mentioned above. PW-1 Satish Chander, Inspector Customs, while appearing in the witness box, supported the prosecution case as set out in the complaint in its entirety. He deposed that both the accused namely Fatima Bibi and Mumtaz reported for custom clearance at Counter No.1-A at Land Customs Station, Attari Rail after completion of immigration formalities along with their baggage consisting of five packages. When they reported for customs clearance, they appeared to be nervous and uncomfortable. Shri K.S.Bajwa, Superintendent Customs was supervising the clearance of the passengers. Two independent witnesses namely Jaspal and Satnam Singh were called immediately before conducting the search. On their arrival, Shri K.S.Bajwa disclosed his identity to the accused and told them that it is suspected that they were carrying some narcotic substance. Thereafter, the search of the baggage was done in the presence of independent witnesses. On search of the baggage, 228 meters of ladies suit cloth, 50 pieces of dupattas, two dinner sets and 10 pair of chapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 'D' i.e. the homogenous mixture of brown powder and converted into separate small polythene pouches and sealed with seal No.152 of Custom Division, Amritsar. Packing material was also sealed separately with the same seal. He also proved Panchnama Ex.P5 bearing his signatures and that of Shri K.J.Bajwa, Superintendant as well as the signature/thumb impression of the accused. He also proved the recovery-cum-seizure memo Ex.P6, which also bears his signatures and that of the witnesses and signature/thumb impression of the accused. He deposed that seal after use was handed over to the competent authority. The witness also proved the statements of the accused recorded under Section 67 of the Act in the case of Fatima Bibi as Ex P-7 whereas, the statement Ex.P- 8 is recorded under Section 67 of the Act and Section 108 of the Customs Act of Mumtaz. The copies of these statements were handed over to the appellants as per endorsement on these statements. He further deposed that both the accused were produced before the Duty Magistrate on 09.05.2006 along with the case property, who remanded the accused to custom custody till 10.05.2006 for effecting recovery of source of the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression and Mumtaz put her signatures on such memos. In her cross-examination, she stated that personal search was conducted at 8.00 PM. She denied the suggestion that the signature/thumb impression of the accused were procured on blank papers. PW-4 Dhiren Senapati, Inspector and PW-5 Bhuvneshwar Mishra, Inspector are the witnesses, who deposed regarding the safe custody of the samples from the time it was handed over to them on 10.05.2006 till the time the same were delivered to the Laboratory for chemical examination. Learned counsel for the appellants has vehemently argued: (i) That the search memos Exs.P1 P2 are based upon the belief of the Inspector that the appellants are carrying narcotics. Such belief was required to be recorded in writing before starting any process of search in terms of Section 42 of the Act and communicated to the superior officers; (ii) That the option for search by a Gazetted Officer or by a Magistrate was in a language not known to the appellants i.e. Hindi, therefore, the valuable right of the appellants conferred under Section 50 of the Act has been frustrated. The provisions of Section 50 of the Act have to be strictly complied with. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. (viii) It is also argued that the statements recorded by the Custom Officer are not admissible in evidence and the conviction on the basis of such statement is not sustainable. Reliance is placed upon Noor Aga Vs. State of Punjab (2008) 16 SCC 417. We have heard learned counsel for the parties and find no merit in the present appeals. In respect of first argument, we may notice that the Customs Authorities had no prior information to the effect that the appellants are carrying contraband. It was the conduct of the appellants before the Customs Authorities, which raised suspicion and made Customs Officers to inspect their baggage and later to carry out the personal search in discharge of their official duties. The suspicion arose when the appellants were waiting for customs clearance and when the senior officials were present at the clearance counter. The information was sent by PW-1 Satish Chander to his superiors within 72 hours i.e. on 11.05.2006 in compliance of sub- section (2) of Section 42 of the Act vide Ex.P16. But that part, since the suspicion arose against the appellants during the customs clearance and that search was not of any building or conveyance, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch any person under the provisions of Sections 41, 42 or 43, he shall 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. Sub- section (5) contemplates that when an officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate, then he can record reasons for such believe. The notice served upon the appellants before conducting personal search is on a printed form, but contains a correction with hand to the effect that 'the Officer beliefs that the appellants had narcotics' after scoring off the words 'receipt of reliable information'. On translation, the relevant portion of notice Ex.P1 reads as under: ......I believe that you have narcotics for which personal search is necessary. You can seek search of yourself before any Magistrate or Gazetted Officer, which is your legal right under Section 50 of the Narcotic Drugs Psychotropic Substances Act, 1985. As such, you are informed about your legal rights. Please tell that before whom you want yourself to be searched, Magistrate or Gaze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o search of a vehicle or a container or a bag, or premises. (see Kalema Tumba vs. State of Maharashtra (1998) 8 SCC 257, State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and Gurbax Singh Vs. State of Haryana (2001) 3 SCC 28). 15. The language of Section 50 is implicitly (sic explicitly) clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh (2001) 3 SCC 28. A similar question as examined in Madan Lal Vs. State of H.P. (2003) 7 SCC 465. 16. Above being the position, the finding regarding non-compliance with Section 50 of the Act is also without any substance. In the present case, the accused were apprised of their legal rights and also offered to be searched either by a Gazetted Officer or a Magistrate. Both the accused opted for search by a Gazetted Officer. Therefore, Section 50 of the Act has been complied with in its full rigour. We do not find any procedural irregularity in making the accused aware of their rights and to seek opinion of the accused before search of their person. In respect of third argument, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;adverse party' because that witness's evidence is hostile to him. The proviso obviously protects the right of the 'adverse party in the first proceeding' and not the right of the person who produces and examines the witness. The judgments referred to by the learned counsel for the appellants are clearly distinguishable and have no applicability in the facts of the present case. In Saudagar Singh @ Sagu's case (supra), the maker of the statement had died, therefore, the statement made in the previous proceedings was admissible in terms of Section 33 of the Evidence Act. In Ganpat Ram's case (supra), one of the defendants admitted the statement made by him in the criminal case. Therefore, both the judgments have no applicability to the facts of the present case. The next argument that no independent witness has been examined by the prosecution agency, is again devoid of merit. The joining of an independent witness is a rule of prudence. Once the prosecution is able to prove the process of recovery of contraband from the appellants from the testimonies of the official witnesses, it cannot be said that non- examination of the independent witnesses is fat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n version became vulnerable for non-examination of persons who were not official witnesses. In respect of next argument, we do not find that Devi is the stock witness. Mere fact that she was associated as a witness in the present recovery proceedings as well as the recovery proceedings against the mother of the appellants, cannot be said to be fatal to the prosecution case. However, Devi was given up as won over by the accused on 19.02.2007 by the counsel for the complainant. The prosecution witnesses have categorically deposed the manner of search, recovery and the procedure. There is no motive for any of them to implicate the appellants. The statement of such witnesses is proved to be of reliable and trust worthy. There is no reason not to seek corroboration from the independent witnesses. The evidence of the prosecution witnesses is creditworthy and inspires confidence in the mind of the Court. The argument raised by the learned counsel for the appellants that the samples were tampered with is without any basis. Handing over of seal to the third person is a matter of prudence and not of law. PW-1 Satish Chander, Inspector Customs, while appearing in the witness-box, has cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inor difference in the weight of samples is not sufficient to doubt the prosecution case. The last argument raised that the statements of the appellants recorded by the Customs Officer is not admissible in evidence and the appellants have retracted from such statements at the earliest opportunity is again not tenable. A Constitution Bench in a judgment reported as Ramesh Chandra Mehta Vs. The State of W.B. AIR 1970 SC 940 has held that the Customs Officer under the Customs Act, 1962 is not a Police Officer. It was observed as under: 24. In certain matters the Customs Act of 1962 differs from the Sea Customs Act of 1878. For instance, under the Sea Customs Act search of any place could not be made by a Customs Officer of his own accord; he had to apply for and obtain a search warrant from a Magistrate. Under Section 105 of the Customs Act, 1962, it is open to the Assistant Collector of Customs himself to issue a search warrant. A proper officer is also entitled under that Act to stop and search conveyance; he is entitled to release a person on bail, and for that purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers within the meaning of Section 25 of the Evidence Act and, therefore, the confessional statement recorded by such officers in the course of investigation of the persons accused of an offence under the Act, is admissible in evidence as against him. Officer appointed under Section 53, other than a police officer is not entitled to exercise all the powers under Chapter XII of the Cr.P.C. including the power to submit a charge-sheet under Section 173 Cr.P.C. Similar view was reiterated in Union of India Vs. Padam Narain Aggarwal (2008) 13 SCC 305, when it was held to the following effect: 39. ....This Section does not contemplate magisterial intervention. The power is exercised by a gazetted officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. The underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident. 40. As held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant before PW 6 Jagdish Mawal and PW 8 Mahaveer Singh are admissible in evidence and cannot be thrown out of consideration. xxx xxx CRA No.22-DB of 2010 16. A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the court requires some corroboration but as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act. 17. Bearing in mind the principles aforesaid, now, we proceed to consider the facts of the present case. The appellant's first confession was recorded by PW 6 Jagdish Mawal on 19-7-1997 and he was produced before the court on 20-7-1997 and he made no grievance in regard to the confession recorded. Another confession was recorded on 20-7-1997 and, thereafter, he was produced before the Special Judge on 21-7-1997 and a copy of the police diary was handed over to him. This obviously would have contained the confessions made by him. No complaint about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by this Court in Kanhaiyalal (2008) 4 SCC 668 in which it has been observed as follows: (SCC p. 682, para 47) 47. ... Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant. In Noor Aga's case (supra) relied upon by the learned counsel for the appellants, the Court has held that the enquiry contemplated under Section 108 is for the purpose of the Customs Act, 1962 and not for the purpose of convicting an accused under any other statute. However, the statements recorded by an empowered Customs Officer, in the present case, are under Section 67 of the Act, which is analogous to Section 108 of the Customs Act. Once the accused have made statements to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession and that burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other persons. The Court relying upon its earlier judgment reported as Bhagwan Singh Vs. State of Punjab AIR 1952 SC 214, observed as under: 21. The question then is: whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants in her under-garment and by another in the black colour hair band worn on hair with black ribbon as well as in the cavity of sandals worn by both of them. Such ignorance of contraband, thus, cannot be feigned. Even though the confessional statements made during the course of investigations under Section 67 of the Act to an empowered Officer are relevant, however, the present is a case, where the prosecution is not solely relying upon the confessional statements made by the appellants, but also the search and seizure of the contraband from their person during the course of personal search at the time of customs clearance. In the light of provisions of law, we find that the statements of the appellants recorded by the Customs Officer have not been retracted at the earliest opportunity. Apart from the suggestion that signatures/thumb impressions off the appellants have been obtained on blank papers, there is no attending circumstance or material to infer that long hand-written statements could be written on blank papers. There is endorsement on the statements that the copy has been handed over. It is not asserted by the appellants in their statements recorded under Sect ..... 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