TMI Blog2007 (5) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... statement claimed to have handed over the contraband to appellant Peter John. If the confessional statement of Hiralal is discarded, there remains no evidence except his own confession to implicate the appellant Peter John - appellant Peter John is also entitled to the benefit of doubt. Appeal allowed - decided in favor of appellant. - Criminal Appeal 1201 of 2005 and Criminal Appeal 1202 of 2005 - - - Dated:- 14-5-2007 - B.P.Singh And Tarun Chatterjee JJ. JUDGEMENT- ( 1. ) The appellants herein with one other namely, Hiralal were tried by the Special District and Sessions Judge, Madurai in Crime Case No.320 of 2001 charged of the offences under Section 8 (c) read with Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ). Learned District Sessions Judge by his judgment and order dated November 20, 2002 found them guilty of the offences with which they were charged and sentenced them to undergo rigorous imprisonment for 10 years and to pay a fine of ₹ 1, 00, 000/- and in default to undergo further rigorous imprisonment for 2-1/2 years. Each one of the accused aggrieved by the judgment of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded. From the confessional statement of the appellant, the involvement of the other two accused was revealed. The appellant was arrested on December 21, 2000 while the other two accused were arrested on December 23, 2000. Peter John (co-accused) admitted that the plastic bag containing white colour powder had been given to him by his friend Hiralal (co-accused) and that he had handed over the same to the appellant for sale. ( 4. ) The report of the Chemical Analyst established that the sample on being tested showed the presence of Diazepam. One other accused namely, Bharat Lal was found involved in the conspiracy. It appears that he absconded and therefore his trial was separated. ( 5. ) It was argued before the Trial Court as well as the High Court that the conviction of appellant Ravindran was not justified in view of non-compliance with the mandatory provisions of Section 42(2) of the Act. It was also contended that the independent witnesses were not examined at the trial and that was fatal to the case of the prosecution. The trial was also vitiated for non-compliance with the mandatory provisions of Sections 50 and 57 of the Act. The report of the Chemical Analyst wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his judgment with decisions cited at the Bar regarding the effect of non-compliance with Section 42 of the Act. ( 8. ) It was then submitted on behalf of the appellant that the provisions of Section 50 of the Act which are mandatory in nature were not also complied with. Reliance was placed on decision of this Court reported in 1998 (8) SCC 534 Namdi Francis Nwazor Vs. Union of India and Anr. Learned Additional Solicitor General appearing on behalf of the Union of India submitted that the aforesaid judgment of this Court has been explained in a subsequent judgment of this Court in 2005 (4) SCC 350 State of H.P. Versus Pawan Kumar in which it has been held that the observations relied upon in Namdi Francis Nwazor were obiter on this point. In the later judgment it has been held as under:- A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at not being the case, the submission must be rejected. An argument was advanced before us that if the search is found to be illegal that is fatal to the case of the prosecution. Apart from the fact that this question does not arise in the instant case, it cannot be said as a general principle of law that the illegality of the seizure would in all cases prove fatal to the case of the prosecution. As held by this Court in 2006 (9) SCALE 644 Ritesh Chakarvarti Versus State of Madhya Pradesh although the effect of the illegal search may not have any direct effect on the prosecution case, it would all the same have a bearing on the appreciation of evidence of the official witnesses and other materials depending on the facts of each case. ( 12. ) Learned counsel for the appellant argued that the two independent witnesses in whose presence he had been searched were not examined at the trial. Reliance was placed on an observation contained in paragraph 28 of the report in 2004 (12) SCC 201 State of West Bengal and Others Versus Babu Chakraborthy. In the instant case it is not disputed that two independent witnesses were associated when the search was conducted. The search was, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave in our view correctly appreciated the material on record and have rightly come to the conclusion that apart from the confession of the appellant Ravindran there was also other reliable evidence on record to prove his complicity. We, therefore, find no merit in this submission. ( 15. ) It was lastly urged that though the Chemical Analyst had reported the presence of Diazepam, he had not given particulars as to the proportion in which its components were found. Counsel for the appellant placing reliance on the judgment of this Court reported in 2005 (7) SCC 550 Amarsingh Ramjibhai Barot Versus State of Gujarat submitted that this may have a bearing on the question of sentence. In the instant case, we are concerned with Diazepam. According to the Notification 20 grams of Diazepam is considered to be small quantity. Any quantity in excess of 500 grams is commercial quantity. In the instant case 1.528 Kilograms of Diazepam was found. In these facts the case is clearly covered by Section 22 (c) of the Act. We, therefore, find no merit in any of the submissions urged on behalf of the appellant Ravindran. His appeal fails and is, therefore, dismissed. ( 16. ) The appellant in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less the conspiracy between A-1, A-2 and A-3 namely, Ravindran, Peter John and Hiralal. The High Court also observed that the Court would not ordinarily act upon a retracted confession to convict the co-accused without corroboration in material particulars. ( 21. ) The High Court, however, distinguished the case of appellant Peter John holding that it was he who instructed Ravindran to go to the bus stand at Kayalpattinam on December 21, 2000 with the contraband. Moreover, appellant Ravindran and Peter John belonged to the same village. Appellant Peter John had brought the contraband from Salem to be handed over to Ravindran. Lastly, Peter John was frequently contacting Ravindran to know about the sale of the contraband. ( 22. ) It is not in dispute that the facts which have been relied upon by the High Court are culled out from the confession of Peter John. The question is whether the confessional statement of appellant Peter John is sufficient to uphold his conviction particularly when the same has been retracted and there is no other reliable evidence to convict him. In our view the benefit extended to Hiralal ought to be extended to appellant Peter John as well. The High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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