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TMI Blog2007 (5) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... ure at Madras. The Criminal Appeal preferred by the appellant Ravindran @ John was registered as Criminal Appeal No.1144 of 2003 while the appeal of Peter John was numbered as Criminal Appeal 14 of 2003. The High Court by its impugned common Judgment and Order dated April 2, 2004 upheld the conviction of the appellants but acquitted Hiralal against whom it found no satisfactory evidence to prove the charges. The appellants have preferred the instant appeals by special leave. CRIMINAL APPEAL NO.1201 OF 2005 1. The facts of the case are that PWs 1 and 2 who were officials of the Customs Sea Base Party, Tiruchendur on receiving specific information rushed to the Kayalpattinam Bus Stand at about 3.00 a.m. on December 21, 2000 since there was reliable information that one person carrying psychotropic substance was to come there. At the bus stand they found appellant Ravindran and on suspecting him to be the person concerned they informed him that they are going to conduct personal search and asked him whether he would like the search to be conducted before a Judicial Magistrate or a Gazetted Officer. The appellant did not insist on his search before a Magistrate or Gazetted Officer. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for its components. The percentage of purity of the sample was therefore not proved. The Trial Court as well as the High Court concurrently held that there was no substance in any of the grounds urged on behalf of the aforesaid appellant. Some of those points have been urged before us as well. We find no substance in any of the points urged before us. 5. The submission that Section 42 of the Act was not complied with has been rejected by the High Court holding that Section 42 was not at all attracted to the facts and circumstances of the case. It also recorded a finding that even if attracted, it had been complied with. 6. We hold that the High Court was right in coming to the conclusion that Section 42 of the Act was not attracted to the facts of this case. In the instant case on information received by PW-2 who communicated the same to PW-1, the witnesses went to the bus stand where the person carrying the drug was expected to arrive. The appellant was arrested at the bus stand. The appellant was, therefore, not searched and arrested in exercise of power of arrest, search, and seizure under Section 42 of the Act. Section 42 applies to a case where the officers concerned on i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act". 8. In the instant case, it is not in dispute that the appellant was carrying a plastic bag in which the drug in question duly packed had been kept. Section 50 is, therefore, not attracted to the facts of this case. 9. It was, however, contended before us that PWs 1 and 2 had not informed the appellant of his legal right to get his person searched in the presence of a Gazetted Officer or a Magistrate. Merely informing him that he has an option to have his personal search done in the presence of a Gazetted Officer or a Magistrate was not sufficient and that he should have been informed of his legal right to get his personal search done in the presence of a Gazetted Officer or a M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the prosecution. In our view, this is not the correct legal position. Even where independent evidence is not examined in the course of the trial the effect is that the evidence of the official witnesses may be approached with suspicion and the Court may insist on corroboration of their evidence. In (2000) 4 SCC 465 Koluttumottil Razak Versus State of Kerala this Court observed:- "In the present case, unfortunately, apart from the evidence of the police officers there is absolutely no independent evidence to ensure confidence in our mind that the search was in fact conducted by PW 1 as he has claimed. As his evidence is required to be approached with suspicion due to violation of Section 42 of the Act we may require corroboration from independent sources that is lacking in this case". In (2003) 8 SCC 449 M. Prabhulal Versus Assistant Directorate of Revenue Intelligence, a similar question was raised in the context of the provisions of the NDPS Act. This Court held: "Next, the learned counsel contends that the independent witnesses of the recovery of the contraband having not been examined and only police witnesses having been examined, the recovery becomes doubtful. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant Peter John and Hiralal were arrested at Salem on December 23, 2000. They were brought to Madurai where their confessions were recorded which are Exbs. P-10 and P-11. 2. In his confessional statement appellant Peter John stated that the packet in question was given to him by Hiralal (since acquitted). Hiralal had told him that he had found the packet abandoned in the lavatory of a train and that it was a Narcotic drug and could be sold for profit. He, further, confessed that he had handed over the packet to appellant Ravindran for sale. 3. According to the confession of Hiralal Exb.P-11 he had got the packet from his friend Bharatlal (absconding accused No.4). He did not know the address of Bharatlal whom he had known for about a year and a half. He further admitted that he had handed over the contraband to Peter John for sale. 4. The prosecution relied upon the confessional statements to implicate the appellant as well as Hiralal. The defence on the other hand contended that Exb. P-10 and P-11 were obtained after prolonged custody since Custom Officials arrested them in Salem and later brought them to Madurai. It was also submitted that the confessional statements were sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al were arrested and brought to Madurai together and their confessions were recorded. The High Court has not considered it safe to act on the confession of Hiralal and acquitted him of the charge leveled against him. If the confession of Hiralal could not be used against him, certainly it could not be used against appellant Peter John a co- accused. Both the confessions were recorded one after the other. While in the confession of appellant Peter John it was stated that Hiralal had told him that he had found the packet abandoned in a running train, Hiralal in his confessional statement stated that he had received the packet from his friend Bharatlal and he had handed over the same to appellant Peter John. The High Court has not accepted this part of the prosecution story because in that event Hiralal would have been found guilty of having conspired to commit the offence or at least could have been found guilty of abetment since he had admitted that he had received the packet from Hiralal and handed over the same to appellant Peter John for sale. In these circumstances, the evidence that remains against the appellant Peter John is rather slender and it is not safe to uphold his conv ..... 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