High Court
Case Details
Crl.A. 159/2009 BEFORE HON’BLE DR.(MRS.) JUSTICE I. SHAH JUDGMENT & ORDER(ORAL) The conviction of the appellant under Section 20(b)(ii)(c) of the NDPS A ct, and sentence of rigorous imprisonment for 10 years, with fine of Rupees One Lakh, in default, further rigorous imprisonment for one year, have been challeng ed in this appeal. 2. orty, learned ASGI, for the respondent.
Legal Reasoning
10. In this case, two samples were drawn from 6 packets. However, th ere is no cogent evidence that the samples had been drawn from those 6 packets. Section 50 of the NDPS Act read with Section 100(4) Cr.P.C. contemplates that se arch should be, as far as practicable, made, in presence of 2 independent witnes ses from the locality. In the cited case of Pradip Narayan Madgaonkar & Ors., -v s- State of Maharashtra, (1995) 4 SCC 255, and Mohd. Raffique -vs- State, 2000 C rl. L. J. 2401, wherein in paragraph No. 6, it has been held, as under: (cid:28)6. In State of Punjab v. Baldev Singh (1999) 4 JT(SC) 595L1999 Cri LJ 3672), it was held that the provisions of the Code of Criminal Procedure relating to sear ch, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the Code of Criminal Procedure are also requ ired to be followed. It is well settled that failure to comply with the provisio ns of the Code of Criminal Procedure in respect of search and seizure and partic ularly those of Sections 100, 102, 103 and 165, of the of the Code of Criminal P rocedure, per se, does not vitiate the trial under the Act. But it has to be bor ne in mind that conducting a search and seizure in violation of statutory safegu ards would be violative of the reasonable, fair and just procedure. In Maneka Ga ndhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), it was held that w hen a stature itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just proc edure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure pro vide for a reasonable, fair and just procedure. (cid:29) 11. te of Uttar Pradesh, (2009) 13 SCC 698. Similar view was reiterated in the case of Sarju @ Ramu -vs- Sta 12. In the cited case of Avtar Singh & Ors., -vs- State of Punjab, ( 2002) 7 SCC 419, the accused appellants were travelling in a truck which were ch ecked and 640 kg. of Poppy Husk was recovered. The appellants who were seating o n the bags containing those recovered items, faced the trial. It was held that m ere fact that the appellants were seating on the bags, in the absence of any pro of of anything more, can it be presumed that they were in the possession of the goods. For instance, if they were labourers engaged for merely loading and unloa ding purposes and there is nothing to show that the goods were at least in their temporary custody. Herein, in this case, the bag and suitcases were recovered f rom top of the vehicle. The vehicle was occupied by some other passengers also. As per the prosecution, the accused person claimed that the bag belonged to him. However, his confessional statement was not recorded by the Custom Officer or P W-4. Moreover, the accused person denied that he confessed before the Custom Off icer or claimed the bag and suitcases, to be his own. 13. In the case of Kanhailal -vs- Union of India, (2008) 4 SCC 668, it was held that although the confessional statement of the accused before the C ustoms Officers is admissible in evidence against him, but the Courts should sat isfy itself that such statement had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with th e alleged offence. 14. In this case, no confessional statement of the accused was recor ded. The seized articles or the samples drawn from the seizure articles, were no t produced before the learned trial court. 15. In view of the above, it is highly unsafe to convict the accused fort eh offence he was charged with. Accordingly, the conviction and sentence p assed by the learned trial court, is hereby set aside and quashed. The accused i s hence acquitted and set at liberty forthwith if he is not required in connecti on with any other case. 16. Send down the LCR immediately. JUDGE Bikash
Arguments
Heard Mr. M. Nath, learned counsel for the appellant, and Mr. D. Chakrab 3. On 22.05.2008, at about 4.15 pm, the Customs Officer of Customs Preventi ve Force, Silchar, on a tip-off, that a passenger is carrying Ganja in AS-11/C-3 180 intercepted the vehicle at Kashipur. On search, in presence of witnesses, tw o suitcases suspected to be containing contraband Ganja were recovered. The accu sed, who was one of the passengers, claimed the ownership of the bag and suitcas es. Accordingly, he along with the bag and suitcases were brought to Customs Off ice, Silchar. He produced the key of the suitcases and it was opened in the cust om office. 22 kgs. of Ganja was recovered from the bag and suitcases which were seized in the presence of witnesses. Samples from the Ganja were drawn and sent to Forensic Laboratory for examination. On receipt of the report from the Labora tory to the effect that the samples gave positive test for Ganja, offence report , under Section 20(b)(ii)(c) of NDPS Act, was submitted against the accused appe llant. The appellant pleaded not guilty to the charges framed against him and he claimed to be tried. 4. Altogether 4(four) witnesses were examined by the prosecution. T he accused, in his statement, recorded under Section 313 Cr.P.C., denied the all egation levelled against him and pleaded that he was innocent. However, no defen ce evidence was adduced. Relying on the evidence of PW-1 Tapan Roy, PW-2 Renglal Vaishnab, and PW-3 Rohimuddin, driver of the seized vehicle, the learned trial court held the accused guilty for the aforesaid offence. PW-1 Tapan Roy, a photographer, by profession, deposed that on 2 5. 2.05.2008, he was called by the Customs Officials to their office. The Customs O fficials requested him to accompany them towards Bankiskandi Road. PW-1 along wi th Renglal Vaishnab(PW-2), and customs officials, went to the said Road and they were waiting for some other vehicle to come. At around 4.30 pm, an alto bearing AS-11/C-3180 on its arrival was intercepted by the custom officials. According to PW-1, there was only one passenger in the said vehicle and it was driven by i ts vehicle. On search, one bag and two suitcases were found inside the vehicle. The accused was travelling as a passenger. On being asked, he claimed that the s uit cases belonged to him. Thereafter, the accused was brought to the Customs Of fice. The Customs officials obtained the key of the suitcases and it was opened in the presence of PW-1. The bags and suitcases contained Ganja like substance. On instruction, PW-1 took photographs of all the packets containing Ganja. The G anja was then weighed and it was found to be 22 kgs.. It was seized in the prese nce of PW-1. One Panchnama was also prepared in his presence. In the cross-exami nation, he said that he never visited the Custom Office prior to 22.05.2008 and he had no acquaintance with the Customs Office. He also admitted that there were shops and houses of some people by the side of the Road where the vehicle was d etained. The alleged bag and suitcases containing Ganja were recovered from the dicky of the vehicle. PW-2 Renglal Vaishnab, an insurance agent, deposed that on the d 6. ate of occurrence, he was called by the Customs Officials. Accordingly, he went there. He was requested to accompany the officials to Bankiskandi Road. He depos ed that at 4.45 pm, the customs officials detected a Sumo Car and there were som e passengers in the said Car. The officials checked the vehicle and one bag and two suitcases were recovered from the vehicle. The accused who was travelling as a passenger, claimed the ownership of those bags and suitcases. Thereafter, the accused was brought to the Custom Office. The accused gave keys of the suitcase s and the bags were opened wherefrom 22 kgs. of Ganja were recovered. PW-2 testi fied his signature on the seizure list as well as Panchnama. In his cross-examin ation, he admitted that he used to visit the Custom Office in connection with hi s insurance business. He also admitted that there were houses of some people whe re the vehicle was intercepted. He failed to recollect where the seized bags and suitcases were kept in the vehicle. 7. PW-3 Rohimuddin, driver of the seized vehicle, deposed that he w as the driver of Max Public Carrier bearing Registration No. AS-11/C-3180. On th e date of occurrence, he started the journey with passengers from Jirighat to Si lchar. At Jirighat, accused boarded his vehicle. The accused was carrying two su itcases and one bag. On instruction of PW-3, handyman of the vehicle, kept the l uggage belonging to the accused on the top of the vehicle. Thereafter, he procee ded towards Silchar. At Kashipur area, the Customs Officials gave signal to stop the vehicle and he accordingly stopped his vehicle. The officials checked his v ehicle and the luggage which were kept on the top of the vehicle. PW-3 was instr ucted by the officials concerned to come to the office and he along with his veh icle and passengers came to the said office. The two suitcases belonging to the accused were opened and it was found that the accused was carrying Ganja in the suitcases. In his cross-examination, he said that his vehicle accommodates 10 pa ssengers at a time. He started the journey from Jirighat with 4 passengers and a t Pitapool and Pulertol, some more passengers boarded his vehicle. There was a c arrier on top of the vehicle and he started the journey keeping the luggage of t he passengers on the top of the vehicle. Except the accused, no passengers were carrying any luggage. 8. PW-4 Dipika Baniya, Customs Inspector, deposed that she was not present when the vehicle was intercepted or the contraband articles were recovered. She deposed that she was in the office and she was asked by the Superintendent to pr oceed with the case. The accused was brought to the office at 5 pm, by her colle agues. She recorded the weight of the seized Ganja in the weight sheet. She also prepared inventory and seizure-list and also prepared the Panchnama. In her cro ss-examination, she has stated that two custom Inspectors went to detect the veh icle. She did not disclose the names of those officials. She failed to cite them as witnesses also. No statement of those officials who brought the accused alon g with the contraband articles, was recorded by her. She even did not obtain the ir signatures on the inventory, Panchnama, or seizure list. She has told that th e seized contraband was taken out from the vehicle involved which was kept benea th the seat of the vehicle. She did not seize any document relating to the vehic le involved in the incident. She further stated that she took samples from all 6 packets containing Ganja and made a common sample for the purpose of forensic e xamination. She submitted the offence report along with the carbon copy of the s eizure list and the statement of the accused. The sample was sent to F.S.L. vide post, but she did not file any postal receipt. She further stated that Tapan Ro y(PW-1) and Rangalal Baishnab(PW-2) are usually called to her office in many cas es. 9. Thus, it is evident from the aforesaid discussions that the cust oms officials who actually intercepted the vehicle, conducted search inside the vehicle, were neither cited as witnesses nor examined by the prosecution. Their names were not disclosed by the prosecution. Although PW-1 and PW-2 were cited a s independent witnesses, they were called to the office to witness the incident. PW-4 herself admitted that PW-1 and PW-2 are usually called to the Customs Offi ce in many cases. PW-2 also admitted that he sometimes visited the office concer ned in connection with his insurance business. The vehicle was intercepted at Ka shipur and no attempt was made by the officials to call the people of that area as witnesses. There is nothing on record that the officials made any attempt to call independent witnesses during search and seizure although admittedly, there were some shops and houses nearby the place where the vehicle was intercepted. F urthermore, the evidence of PW-1, PW-2, and PW-3, are contradictory to each othe r. PW-1 stated that there was only one passenger in the said vehicle while PW-2 stated that there were some passengers in the said vehicle whereas PW-3, Driver of the vehicle, stated that initially there were 4 passengers when he started th e journey from Jirighat and on the way before the vehicle was intercepted, some more passengers boarded his vehicle. PW-1 stated that the vehicle was an alto ca r. PW-2 stated that it was a Sumo Car whereas PW-3 stated that it was a Max Publ ic Carrier. According to PW-1, the bag and suitcases containing Ganja were recov ered from the Dicky of the vehicle(Alto Car) whereas PW-3 stated that it was kep t on the top of the vehicle.