Criminal Revision No. 2455 of 2002 · Punjab And Haryana High Court · 2010

Mr. Vikram K. Chaudhri, Advocate appearing for the petitioner, has raised following three arguments: (a) No independent witness was examined by the prosecution. Two independent witnesses, namely Kulwant Singh and Jasbir Singh associated have been given-up on the false pretext of won-over. (b) Section 102 of the Act is para-materia similar to Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and it has been held by a Constitution Bench of Hon’ble the Apex Court in ‘State of Punjab v. Baldev Singh’ 1999(3) RCR (Criminal) 533 that it is imperative for the officer to inform the accused that he has a right to be searched before a Magistrate or a gazetted officer and the prosecution is bound to prove that such an offer was made. It is contended that no offer in terms of Section 102 of the Act was made to the accused-petitioner. Therefore, the recovery of fake currency notes is to be ignored. In support of this Criminal Revision No.2455 of 2002 5 argument, further reliance has been placed upon a judgment rendered in ‘Yusuf Suleman Hattia v. V.M. Dosi and another’ 2001 Cri.L.J. 4830. (c) Lastly, it was submitted that the petitioner is an innocent person. The prosecution has failed to prove the necessary mens-rea on the part of the petitioner that he intended to smuggle fake currency into India. I have considered all the above submissions and am of the opinion that the same are to be rejected outrightly. In the present case, the testimonies of Jaswant Singh, Inspector Customs PW-1 and A.K. Bhatnagar, Superintendent Customs PW-2 aspire confidence. At the time of recovery, two independent witnesses were present and they had attested the recovery memo. If these independent witnesses have not come forward to prove the recovery, the testimony of official witnesses cannot be discarded. It is only in those cases, where the deposition of official witnesses does not aspire confidence, the Court looks forward for corroboration from an independent source. But, where the official witnesses are truthful and their testimonies are trustworthy, there is no need for the Court to insist for examination of independent witnesses. So far second submission of counsel is concerned, in the present case no personal search of the accused-petitioner was conducted. Before the personal search could be undertaken, the accused was asked to declare as to whether he was carrying any contraband/narcotic substance/gold etc. or not. The accused volunteered and took the currency out of his pocket and tendered/produced the same for examination before the Customs officials. When no personal search of Criminal Revision No.2455 of 2002 6 the accused-petitioner was to be carried, Section 102 of the Act is not attracted. Now it is well settled that it is only in case of a personal search that Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 is required to be followed and not otherwise. The petitioner was coming from Pakistan. He was carrying fake currency. In such type of cases, it is not for the prosecution to prove mens-rea on the part of the accused, rather the presumption that the accused is guilty, operate against the accused-petitioner. Hence, there is no merit in the present revision petition and the same is hereby dismissed. June 4, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE