TMI Blog1998 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. Woodward, Drug Liaison Officer, Bombay on 8-2-1989 informing him about the two album type books containing photographs of padded plastic covers left by one Mr. Rajnikant Patel with Mr. Dilip and Kamlesh and the said books suspected to contain narcotic drug, Mr. Kakkar passed on the said information to Mr. P.N. Vithaldas, Additional Collector of Customs (Prev.), Ahmedabad, on telephone in the evening on 8-2-1989. The Customs Officers at Ahmedabad started investigation into the matter upon receipt of such information and it transpired that one Mr. Rajnikant Patel along with his wife and daughter had been to India from London in the 1st week of January, 1989. They were the holders of British Passports and they are citizens of England. They originally belong to village Bodal, Taluka Borsad, District Kheda. They had come to India for paying visit to their native place and were to go back home in the 1st week of February, 1989. They had tickets for London. For confirmation of the tickets they contacted the accused, Mr. Bipinbhai Ashabhai Patel (the appellant herein) carrying on the business of travel agency in the name of Bipco Tours Travels at Borsad, on or around 25-1-1989. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hmedabad along with his two Inspectors Mr. M.P. Shah and Mr. A.S. Saiyed went to Borsad and Bodal and contacted Mr. Kamlesh, who produced the aforesaid two books before them. The said books were seized in the presence of Panchas Mr. Piyushbhai Natvarlal Patel of Borsad and Vinubhai Dhulabhai Patel of Borsad. The books were put in Oscar brand suit case which was sealed, with a paper slip signed by Panchas, Dilip, Kamlesh, Seizing Officer Shri M.P. Shah, having been affixed on it and with a Government seal having been applied on it. The suit case was then brought to Ahmedabad. The accused was then brought from Bombay to Ahmedabad on 10-2-1989 during morning hours. After he was brought to the Customs Office where Kamlesh and Dilip were also called, the said suit case was opened in the presence of the accused. Dilip, Kamlesh and two Panchas Mr. Ahmed Husain Shaikh and Abdul Sattar Abdul Gani Shaikh, both of Ahmedabad. From each cover of each book one plastic bag was secured, in all four plastic bags were secured and all the four plastic bags contained brown sugar weighing 860 grams worth Rs. 1 lakh. Three samples were drawn from each bag and each sample weighed 5 grams. In all 12 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.After the receipt of complaint as aforesaid, the learned Chief Judicial Magistrate committed the case to the Sessions Court. Charge was framed against the accused under the aforesaid provisions of the N.D.P.S. Act. The accused having pleaded not guilty, trial was held before the learned Additional Sessions Judge. The prosecution adduced evidence in the form of - P.W. 1 Mr. Dilipbhai Shivabhai Patel Exh. 14, P.W. 2 Panch witness Mr. Piyushbhai N. Patel Exh. 15, P.W. 3 Mr. Vinubhai Dhulabhai Patel Exh. 17, P.W. 4 Panch witness Mr. Ratilal Bapulal Soni Exh. 18, P.W. 5 Mr. Mahendra Parshotamdas Shah Exh. 20, P.W. 6 Mr. Dayaram Mayaram Thapliyal Exh. 22, P.W. 7 Mr. Mukundbhai Ramanbhai Patel Exh. 24, P.W. 8 Panch witness Mr. Ahmed Husain Kalubhai Exh. 26, P.W. 9 Panch witness Mr. Abdul Sattar Abdul Gani Shaikh Exh. 28, P.W. 10 Mr. Rameshbhai Ramnathan Exh. 29, P.W. 11 Mr. Chandrakant Ratilal Desai Exh. 31, P.W. 12 Mr. Ravindranath R. Kakkar (Kakkad) Exh. 51, and P.W. 13 Mr. Abdul Habibkhan Abdul Mazidkhan Maulavi Exh. 53. Prosecution also placed on record documentary evidence in the form of statements of the accused Exh. 30 and Exh. 36, statement of Mr. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 313 of the Code of Criminal Procedure, 1973 and after hearing the submissions made on behalf of both the sides, the learned Additional Sessions Judge rendered his judgment of conviction and sentence as aforesaid. The accused being aggrieved with and dissatisfied by the said judgment has preferred this appeal. 5.We have heard Mr. Vivek Barot, learned Counsel appearing for the accused-appellant herein, Mr. S.A. Pandya, learned A.P.P., for the State and Mr. Sunil C. Patel, learned Additional Standing Counsel appearing for the Customs Department. It has been submitted by Mr. Barot that conscious possession of the offending substance in question insofar as the appellant is concerned could not be said to have been established beyond reasonable doubt, if the accused's statement Exh. 36 is not taken into consideration. According to his submission the said statement cannot be received and read in evidence inas much as the same cannot be said to have been obtained voluntarily or given voluntarily by the accused. For the purpose of making good his submission he placed reliance upon Exh. 30 which is the first statement of the accused. That was recorded pursuant to the summons issued u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey should be returned to him. He replied that Mr. Patel had taken the books. He then gave the telephone numbers of Royal Travels. According to his say he used to contact Mr. Mahesh Bhatt on the said telephone No. (233185) in connection with his business. He has signed the statement after having read the same as having been given by him and having been correct as deposed to by him. 6.Referring to the aforesaid statement Exh. 30 it has been submitted that by no stretch of imagination the aforesaid statement could be said to be an incriminating statement. However, it has been fairly conceded that the stand of the accused before the learned Addl. Sessions Judge was that even this statement was recorded/obtained under threat/coercion. 7.It is not in dispute that the case was investigated by the Custom authorities in Gujarat at Ahmedabad and the accused had been brought to such authorities on 10-2-1989 pursuant to a summons issued to him. However, it has been submitted that the accused was under apprehension right from 9-2-1989 till upto his second statement was recorded on 11-2-1989 and he could not be said to be a free agent so as to say that he had given his statement voluntarily. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nada. The tickets were in the name of Rajnikant Patel, his wife Kalavatiben and his daughter Linal. He accepted the three air tickets for confirmation and sent them through Angadia on 31-3-1989 (31-1-1989) to Mr. Mahesh Bhatt running Royal Travel Agency at Bombay for the purpose of reconfirmation of the said three tickets. He had business transactions with said Royal Travel Agency from January, 1988. He was getting the work with regard to Visas of such passengers and reconfirmation of tickets of such passengers through said Royal Travel Agency. He received back the three air tickets duly reconfirmed through Angadia from Bombay on 2-2-1989. On 3-2-1989 Mr. Rajnikant Patel and his younger brother-in-law Mr. Kamleshbhai Patel had been to his office and he had returned the aforesaid three air tickets duly confirmed to them and Mr. Kamleshbhai Patel paid Rs. 150/- by way of service charges and signed in the register in token of having received tickets. After some talks he requested Mr. Rajnikant Patel to take two English books of big size on Birds and Tigers for the same being handed over to a relative of his friend in London. He expressed that he would be obliged if that work was done. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's customers. The accused was taken in confidence for that purpose on their promise to pay Rs. 1,500/- to Rs. 2,000/- per book. Accordingly, previously also such books were sent to London through his passengers one of whom was Mr. Suryakantbhai Patel, who travelled by Air India on 27-1-1989 by 2 O'clock Flight for U.S.A. Port Land, via London and one book with a bag of brown sugar hidden therein sent to London through him as Mr. Suryakant Patel was to stay for three days at London. He has stated having gone to see off Mr. Suryakant Patel at Bombay Air Port where Mr. Dhirubhai Gohil had given the book with brown sugar hidden therein. He told Mr. Dhirubhai that the book might be handed over to Mr. Suryankant Patel, who was his distant relative and that he (Mr. Suryakant Patel) would hand over the book to the person seeking to collect the book at London. Mr. Suryakant had accordingly taken the book with him to London. Another passenger Smt. Naliniben R. Patel left India for New Jersy, U.S.A. from Bombay by Pan Am Flight No. 67 on 7-2-1989. He had gone to see her at the Air Port and on that occasion also Mr. Dhirubhai Gohil had handed over two such books containing brown sugar, which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement was recorded. He was also given summons for remaining present before the Custom Officer in Custom Office situated in Navrangpura, Ahmedabad on 10-2-1989. Accordingly, he appeared before such officer at 10 O'clock in the morning and on 10-2-1989 at around 3-00 O'clock in the afternoon M/s. Dilipbhai S. Patel and Kamleshbhai S. Patel, as also two panchas were present and in their presence and in presence of the accused one sealed suit case of Oscar make was presented for further investigation and from that suit case two big size English books concerning birds and tigers were found with two brown paper covers and from the said books four bags containing 860 grams of brown sugar were also found and were seized. He has stated that he had himself given said two books to aforesaid passenger Mr. Rajnikant Patel for the same being taken to London. He has given such books at Borsad on 3-2-1989. Panchnama with regard to the seizure of aforesaid brown sugar from the books in question was prepared. He has finally asserted that the statement was given by him at his own sweet will and without there being any pressure or threatening of any sort. 8.The aforesaid second statement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.) = AIR 1971 SC 1087] a Bench of two Judges considered the question whether by reason of recording of the evidence during the course of the inquiry under the Act the statement would be construed to be compulsive statements emanating from persons in authority so as to become inadmissible under Section 24 of the Evidence Act. In para 20 (SCC para 18) of the judgment it was held that it was not disputed that P.W. 5 who recorded the confession, was a person in authority within the Act. But the question was whether, when P.W. 5 drew the attention of the appellant to the fact that the inquiry was a judicial proceeding to which Section 193 I.P.C. applied and that the appellant was bound to speak the truth, it could be considered to be threat, inducement or promise emanating from a person in authority under the section. In para 24 (SCC para 22, P. 854) it was considered and held that - "a person summoned under Section 108 of the Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must be noted that a compulsion to speak the truth, even though it may amount to a threat, emanated not from the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case. The appellant was under a legal duty to state the facts truthfully lest he would be liable to prosecution. The threat emanates from and is that of the statute and the officers merely enforced the law. The allegations as to the threat of implication of his wife was an after thought and he did not mention the same when he appeared before the Magistrate and obtained bail." It is no doubt true that in the present case reference has been made to Section 67 of the N.D.P.S. Act in the respective summons given to the accused. The concerned Customs Authorities have also made inquiry by virtue of provisions contained in Section 108 of the Customs Act and reference of that provision has also been made. In the present case, the accused has challenged not only the second statement, which has been called in question by the learned Counsel for him before us, but he challenged before the learned Additional Sessions Judge even his first statement, which is rightly submitted by Mr. Barot to be exculpatory statement. Mr. Barot had taken us to the accused's retraction as contained in Exh. 47 which was sent on 16-2-1989 by the accused from the Central Jail, Sabarmati, Ahmedabad to the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly the modus operandi for transporting the offending substance that has come out from the accused. Even the accused has not disputed his possession of the books in question at the relevant point of time. The fact that he had been operating as an agent for number of years and the fact that he had been in association with the aforesaid other conspirators for a considerably a long period would indicate the course of conduct on the part of the accused. He was free to come out with a defence that he had at no point of time any occasion to know about the contents of the books, but in fact he has come out with a case that main conspirators were the aforesaid other persons and he was merely communicating the books, of course with the knowledge that they contained the offending substance in question, for some remuneration or for some service which he was getting from the aforesaid conspirators. It is thus clear that the prosecution evidence as enumerated hereinabove would lead to how the accused was seeing to the transfer of the offending books containing the offending substance. Whether a confessional statement was voluntarily made or not is essentially a question of fact and this is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled in question by the learned Counsel for the accused speak for itself and discloses such facts as would proceed only from the accused, who was in knowledge of such facts. This is over and above the fact that other facts leading to the transactions in question stand supported by the aforesaid pieces of evidence. We need not take ourselves to the evidence of the witnesses which have been referred to hereinabove. The fact remains that the learned Additional Sessions Judge can hardly be said to have committed any error in placing reliance upon Exh. 36 and in coming to the conclusion that the said statement was voluntarily made. 11.Learned Addl. Standing Counsel for the Central Government has placed reliance upon a decision in the case of Poolpandi v. Superintendent, Central Excise, reported in 1992 (60) E.L.T. 24 (S.C.) = AIR 1992 SC 1795, answering the submissions made by Mr. Barot, learned Counsel for the appellant, in respect of how the accused was in the company of Customs Authorities right from 9-2-1989 to 11-2-1989. We need reproduce what has been said by the Apex Court in para 6 of the citation : "Cl. (3) of Article 20 declares that no person accused of any offence shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate." The above conclusion was reached after consideration of several relevant decisions and deep deliberation on the issue, and cannot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathy's case (AIR 1978 SC 1025) which is, as will be pointed out hereinafter, clearly distinguishable." 12.Even under the provisions of the N.D.P.S. Act the Customs Authorities are not the Police Authorities. Reference in this connection may be made to the decision of the Apex Court in the case of Raj Kumar Karwal v. Union of India, reported in 1990 (48) E.L.T. 496 (S.C.) = AIR 1991 SC 45. 13.It is no doubt true that the accused was in the company of the Customs Officers right from 9-2-1989 upto 11-2-1989, but the accused was under a summons for giving the statement with regard to what he knew about the transactions in question. The summons which was issued for requiring him to remain present before the concerned Customs Officers was under Section 108 of the Customs Act as also under Section 67 of the N.D.P.S. Act. It is on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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