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Shiv Balak Sah @ Madan Sah, S/o Shiv Chand Sah Versus The Union of India

2016 (7) TMI 541 - PATNA HIGH COURT

Voluntary confession - conviction under Section 15(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having possession of 266 K.G. of dodda - Held that:- Taking into consideration that the appellant has confessed the guilt in his confessional statement, Exhibit 10, and interrogatories, Exhibit 11, that he was carrying six big and two small bags of dodda and he has not complained that he has not made any such statement, voluntary, and has not reported of having made the .....

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case. It is true that before acting solely on confession as a rule of prudence the Court requires some corroboration, but, it can not be said that conviction can not be recorded on sole confession, if the confession has voluntarily been made. - The appellant has made confessional statement and, more over, independent witness deposed that recovery has been made and, further, the official as well as the independent witnesses supported the prosecution case regarding the search, seizure and reco .....

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15(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the Act') for having possession of 266 K.G. of dodda and sentenced to undergo rigorous imprisonment for ten years and a fine of rupees one lakh for offence under Section 15(c) of the Act and in default of payment of fine to undergo rigorous imprisonment for six months and has, further, been sentenced to undergo rigorous imprisonment for ten years and a fine of rupees one lakh for of .....

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was organized by the Superintendent, Custom, (P. Division), Motihari, which contains the complainant, Amar Nath, as well as Siman Ekka, P.W. 2 and other sepoy and havildar and B.N. Pandit, the team rushed to Chhapwa and waited at Chhapwa Terminal and after some time the said bus seen coming from the side of Raxaul, which was signaled to stop and, thereafter, the bus was stopped and on check, from the dickey of the said bus some sacked dodda recovered in gunny bag. On enquiry, one Shiv Balak Sah .....

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l Laboratory, Custom House, Kolkata, for report. The interrogatory statement and voluntary statement of the accused were recorded in which the appellant admitted and confessed his guilt. The said confessional statement was recorded by Ajit Kumar, P.W. 6, though the interrogatory statement was asked by the Custom authorities and the answer given by the accused was recorded. The Chemical Examiner sent his report on 19.01.2009 stating therein that the sign for percentage of morphine could not be de .....

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pling duly sealed and signed by the Judicial Magistrate sent for chemical examination and, in the meantime, the complaint filed and, thereafter, a report received that the seized articles contains 0.6 per cent morphine. 5. On filing the complaint, cognizance taken and the trial proceeded after framing of the charge. 6. During the trial nine witnesses were examined, who are P.W. 1 Amarnath, Inspector, Custom, who supported the prosecution case regarding the receipt of the information from the cod .....

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ed and sample taken and sent to Chemical Laboratory, Kolkata, and has proved Exhibit 1 seizure memo, Exhibit 2 panchnama, Exhibit 3 formal first information report, Exhibit 4 test memo, Exhibit 5 forwarding report of the accused, Exhibit 6 petition, dated 21.01.2009, for re-sampling, Exhibit 7 is the letter, Exhibit 8 the final complaint, Exhibit 9 is the report of the Central Revenue Control Laboratory, Hill Side Road, Pusa Campus, P.O. I.A.R.I, New Delhi - 110 014, indicating that the seized a .....

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id and search and seizure. It is, further, stated that interrogatory statement and voluntary statement of the appellant were recorded and ordered for re-sampling. P.W. 3 is Bishwanath Pandit, retired constable and has reported that re-sampling was made before him by the Judicial Magistrate and the envelop containing his signature. P.W. 4 is Indrajeet Prasad, sepoy, and has also supported the prosecution case being the member of the raiding party regarding the search and seizure of the article, s .....

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efore him on the date of certification. However, he has stated in his cross-examination that where the seized articles were kept from 23.07.2008 to 21.09.2008 that can not be said, as he did not know. P.W. 6 is Ajay Kumar and has come to depose that interrogatory statement and the confessional statement recorded by him and bears his signature. P.W. 7 is Md. Mustafa. He has proved panchnama and has also proved the signature in seizure list in Custom office. P.W. 8 is Laldeo Ram proved his signatu .....

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tom Officers supported the prosecution case regarding the recovery of the articles from the possession of the appellant and the Katib (writer), who recorded the interrogatory statement and voluntary statement, has proved Exhibits 10 and 11, hence, the prosecution has been able to prove the charge and so convicted and sentenced the appellant, as mentioned above. 9. The learned counsel for the appellant, however, challenged the order of conviction and sentence, recorded by the trial Court on the g .....

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o have been produced during the trial has not been produced is not merely a procedural irregularity, but, cause prejudice to the accused and mere oral evidence as to their feature production of panchnama does not discharge the heavy burden which lies on the prosecution particular when the offence is punishable with stringent sentence and has placed reliance upon a decision reported in (2004) 10 S.C.C., 562 (Jitendra & Ors. Vrs. State of M.P.). It has, further, been contended that the confess .....

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State of M.P.) that neither the articles, seized, has been produced nor even the sample which was taken from the article have been produced, hence, there is no evidence to connect the forensic report with the substance seized from the possession of the appellant and, further, the evidence that the certification proved as Exhibit 12 is not in consonance of Section 52A of the Act as neither the details of the articles, seized, nor the photographs of the articles seized contained in it even taken, .....

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e upon decisions reported in (2011) 11 S.C.C., 347 (Ram Singh Vrs. Central Bureau of Narcotics) and (2008) 4 S.C.C., 668 (Kanhaiyalal Vrs. Union of India) and has contended that if the statement given was voluntary without any threat or compulsion and if supported by corroborative evidence then conviction can be recorded. 11. Hence, taking into consideration the respective submissions I proceed to consider the question for consideration whether the prosecution has proved the charge to record a c .....

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ent witnesses, Form "F" was also prepared, three separate samples were taken which were sent to Kolkata, the test memo prepared and a report of the chemical examiner was received and it was reported that the sample, sent, answers test for presence of morphine and other opium alkaloid, the percentage of morphine content could not be determined as HPLC instrument is out of order at present, hence, it is observed that the sample may be forwarded to the Central Revenue Control Laboratory, .....

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per cent. However, in the meantime, official complaint filed along with the report on which the cognizance taken. 12. The witnesses examined in the case are P.W. 1, who has supported the prosecution case regarding the information received and, accordingly, constituted a preventive team, reached at the Chhapwa More and, then, apprehended the bus by giving signal and consequently bus stopped, recovery made before the driver, cleaner (khalasi) and the passengers and the seizure list and panchnama .....

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P.W. 3 has come to support the re-sampling by him before the Judicial Magistrate. P.W. 4, Indrajit Prasad Singh, also a member of the raiding party and has supported the prosecution case. P.W. 5 is Vijay Nath Rao. He has come to prove the certification of the article, seized, and has proved Exhibit 12, which is computerized and bearing the signature of the Godown In-Charge. He has deposed that the seized articles were kept in Godown on 22.09.2009. However, he has stated that he does not know wh .....

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cution has been proved by oral evidence that they got information about the bus through coded informer and, then, team constituted, reached Chhapwa More, waited for the arrival of the said bus and when the bus arrived, the same was stopped and from the bus eight bags of dodda recovered, the appellant accepted the ownership of the bags, but, did not produce any paper and, then, articles, seized, were taken to Customs Office where articles, seized, were weighed, seizure list and panchnama prepared .....

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e Magistrate under Section 52A of the Act has been marked as Exhibit 12. However, neither the article, seized, has been produced nor the sample, taken from the article, seized, has been produced before the Court during the trial. However, though certification of a Magistrate has been marked Exhibit 12, but, destruction of the article has not been proved or brought on record. The witnesses though supported the prosecution case regarding the search and seizure and the preparation of the seizure li .....

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an prejudice the accused. In the case reported in (2004) 10 S.C.C., 562 (supra) the Hon'ble Supreme Court taken into consideration the finding of High Court and observed as follows : "Although the High Court noticed the fact that the charas and ganja alleged to have seized from the custody of accused had neither been produced in Court nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction a .....

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ity and did not cast a prejudice to the accused". 14. The Supreme Court repelled the finding of the High Court and observed as follows : "In our view the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the allege quantities of charas and ganja were seized from the possession of the accused. The best evidence should have been the seized material which ought to have been produced during the trial and ma .....

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e evidence of the possession of article, seized. The prosecution has only proved the certification of the article, but, has not produced evidence regarding the destruction of the article, seized, and the certification is not in compliance with Section 52A of the Act. The certification requires proving and bringing in evidence at least the samples taken from the article, seized, but, neither the article, seized, has been produced nor the samples of the articles have been produced before the Court .....

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al Magistrate has been produced nor the article, seized, has been produced. Hence, in that background it is relevant to quote paragraph 96 of the decision reported in (2008) 16 S.C.C. 417 (supra) which is as follows : "Para 96 : Last but not the least physical evidence relating to the three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed the samples were essential to be produced and prov .....

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(2013) 14 S.C.C. 527 (supra), which has placed reliance upon paragraph 96 of the judgment of Noor Aga's case, (2008) 16 S.C.C. 417 (supra), to hold that the prosecution must in any case produce the sample even when the bulk quantity is said to have been destroyed and in the same judgment reliance has already been placed upon the decision reported in (2004) 10 S.C.C., 562 (supra). 18. The reliance has also been placed on the decision reported in (2011) 5 S.C.C., 123 (Ashok @ Dangra Jaiswal Vr .....

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rt nor has even produced the sample taken from the said dodda and has not given any explanation for non-production of the article seized from the appellant. Hence, there is nothing on record to connect the Forensic Science Laboratory report with the article, seized, to say that article, seized, was narcotics. 20. More over, the fact that P.W. 1, in his entire evidence, has not stated where the articles, seized, were sealed. He has not stated that whether the articles, seized, were kept and thoug .....

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and it is only the seizing officer who can when bag sent to godown. However, in the evidence of seizing officer there is no mention whether he has sealed the gunny bag in which the article seized nor he has mentioned that he had kept the article at Godown. P.W. 3 has also not stated regarding the sealing and keeping the article. However, P.W. 5, who has come to prove the certification of article, which has been marked as Exhibit 12, in his cross-examination, has stated that the seized article wa .....

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ws the date of drawing and dispatch of the sample is 23.07.2008. However, the date of receipt in the Laboratory has been shown in Exhibit 4 as 11.12.2008. However, it is apparent that when the date of withdrawal and date of dispatch of the sample is shown as 23.07.2008, but, the date of receipt of sample in the Laboratory is 11.12.2008 and there is no explanation where the sample remained for about more than 4 to 5 months in transit, i.e., reaching the sample from Motihari to Kolkata and, hence, .....

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rticle, seized was produced as evidence in Court though certification has been proved, but, not by Magistrate, hence, there is no material or even no evidence to connect the forensic report with substance that was seized from the possession of the appellant or the accused and non-production of such material evidence was not a mere procedural matter and has caused prejudice to the accused. However, the contention that the certification of the article, seized, as apparent from Exhibit 12, but, it .....

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ions of Section 52-A of the NDPS Act to submit that in a case of destruction of contraband goods the procedure as laid down in sub-section (2) of Section 52-A of the Act has to be followed and in case of destruction, the inventory prepared at the time before destruction and the photographs of the narcotic drugs and psychotropic substances and the list of samples drawn under sub-section (2) of Section 52-A of the Act as certified by the Magistrate are treated as primary evidence in respect of the .....

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at the bulk quantity was destroyed the sample was essential to be produced to prove as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act. Section 52A of the Act suggests that every Court shall draw the inventory, the photographs of the narcotic drugs and psychotropic substances and list of samples drawn under sub section (2) and certified by the Magistrate as primary evidence in respect of such offence and in decision report .....

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aded after booking, but, the booking was not made before him, but, was said booking was from the counter and it is stated that during the period the bus was in Customs Office, in the meantime, he remained in the bus or just has got down from the bus and the Customs Authorities after unloaded the bags took it in Customs Office. 23. Hence, it is apparent that neither the article, seized, nor the sample has been produced in Court. The certification proved as Exhibit 12, but, the destruction of the .....

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roduced as material exhibit nor even sample taken proved as material exhibit, hence, the Court has no evidence to connect the Forensic Science Laboratory report with substance, which has been seized. 25. The learned counsel for the State has, further, placed reliance on decisions reported in (2008) 4 S.C.C., 668 (supra) and (1990) 2 S.C.C., 409 (Raj Kumar Karwal Vrs. Union of India & Ors.), (2011) 11 S.C.C., 347 (supra) and (1999) 6 S.C.C., 1 (Pon Adithan Vrs. Deputy Director, Narcotics Cont .....

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hat the officer empowered under Section 53 of the Act and has been vested well power of a police officer deemed to be police officer and Section 25 of the Indian Evidence Act, 1872, is applicable, reference has been made of paragraphs 75, 76, 78, 81 and 82 of the decision reported in (2008) 16 S.C.C. 417 (supra) : "75 : The Act is complete code by itself. The Customs Officers have been clothed with the powers of police officers under the Act. It does not, therefore, deal only with a matter .....

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" ................... "78 : Section 53-A of the Act makes such a statement relevant for the purposes of the said Act. The observations of the High Court, thus, that confession can be the sole basis of conviction in view of Section 108 of the Customs Act, thus, appear to be incorrect." .................. .................. "81 : This Court in Alok Nath Dutta v. State of W.B. stated : (SCC p. 274, para 125) "125. We are not suggesting that the confession was not proved, bu .....

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to rely thereupon." "82 : In Pon Adithan v. Narcotics Control Bureau 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." 28. However, in (2011) 11 S.C.C., 347 (supra) it has been held that if confession made under Section 67 of the Act "when accused is made aware of confession made by him and he does .....

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d went to the extent of saying that his signature was obtained on blank paper and in the facts and circumstances confessional statement made, the appellant was held not voluntary in nature and to form the purpose of conviction. The reliance has also been placed in decision reported in (2008) 4 S.C.C., 668 (supra), (1990) 2 S.C.C., 409 (Raj Kumar Karnwal Vrs. Union of India & Ors.) where it has been recorded that the conviction can be recorded. 29. In decision reported in (1999) 6 S.C.C., 1 ( .....

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ason to doubt his version that he had informed the appellant of his right. It is, further, held that the conviction can be recorded on the confessional statement, if confessional statement voluntarily made. Further, confessional statement of the appellant corroborates evidence of P.W. 1 and the criticism to reject the confessional statement on ground of retraction rejected on plea that said retraction in statement under Section 313 of the Criminal Procedure Code is at belated stage and no compla .....

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asis that non-production of physical evidence is not fatal to the prosecution case but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the retracted onfession on the part of the accused could not have been taken recourse to." 31. However, in decision reported in (2013) 16 S.C.C. 31 (Toofan Singh Vrs. State of T.N.) the proposition imposed .....

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ction 53 of the Customs Act is a police officer and, therefore, attract the provision of Section 25 of the Indian Evidence Act, 1872, and finally taking into consideration that the Hon'ble Supreme Court has already doubted the dicta in (2008) 4 S.C.C., 668 (supra) and (2011)12 S.C.C. 298 (Nirmal Singh Pehlwan Vrs. Inspector, Customs). It is relevant to quote paragraphs 40 and 41 of decision reported in (2013) 16 S.C.C. 31 (supra) : "40 : In our view the aforesaid discussion necessitates .....

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the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with." "41 : F .....

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, seized, but, the prosecution witnesses supported the prosecution case and even the independent witnesses have supported the seizure and proved his signature on seizure list, however, the appellant has confessed and the confessional statement and the interrogatory has been marked as Exhibits 10 and 11. P.W. 2 has specifically stated that the appellant has confessed, the appellant has not reported about any threat and coercion or that the statement has not been voluntarily made at the initial st .....

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s written by him under threat, duress and gun point. However, the confession made has been retracted, but, in the facts and circumstances of the case, at hand, the witnesses supported the prosecution case and the confession made by appellant not controverted till the simple denial in statement under Section 313 of the Criminal Procedure Code. Hence, on these facts, it can well be presumed that confession was free from threat, coercion and was voluntarily made. 35. Taking into consideration that .....

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