Bombay High Court
Wilberg Peter Torbjorn Florentin vs Inspector Of Customs, Mumbai And Anr. on 31 August, 2001
Equivalent citations: 2002(3)MHLJ123
Author: S.S. Parkar
Bench: S.S. Parkar, Ranjana Desai
JUDGMENT S.S. Parkar, J.
1. All the above appeals arise against the judgment and order dated 22-4-1996 delivered by the Special Judge in NDPS Special Case No. 107 of 1994. In all four accused were prosecuted for the offences of possession and conspiracy in respect of the narcotic drugs which were seized from the accused. Criminal Appeal No. 376 of 1996 is filed by original accused No. 1 against the order of his conviction and sentence recorded by the trial Court under the provisions of the NDPS Act and the Customs Act. Criminal Appeal No. 441 of 1996 is filed by original accused Nos. 3 and 4 against the order of their conviction and sentences recorded against them under NDPS Act. Criminal Appeal No. 520 of 1996 is filed by the original complainant against the acquittal of accused No. 1 in respect of the first seizure of 30 grams of heroin from his possession. Since all the appeals arise in respect of the same prosecution against all the appellants in Special Case No. 107 of 1996 which was disposed of by the Judgment and order dated 22-4-1996, all these appeals were heard together and are being disposed of by this common judgment.
2. Briefly stated the prosecution arose in the following circumstances : The officers of the Customs were acting on the basis of the prior information which was received by PW 1 on 3-3-1994 at about 3.30 p.m. The gist of the information which was produced on record at Exhibit No. 12 is as follows :--
"That one white foreigner by name Jack will be delivering thirty grams of white heroin to another white foreigner named Martin near the Breach Candy Swimming Pool between 15.00 hrs. to 15.30 hrs. today i.e. 3-3-1994. I will point out the persons from a distance.
Jack is staying at flat No. 62 sixth floor, Venus Apartment Altamount Road, Bombay - 26. In his house he keeps heroin and a huge amount of foreign and Indian Currency and a transmitter. His wife's name is Maria. She is also a foreigner. He is receiving supplies of heroin from one Mrs. Mishra staying at flat No. 42, Savita Co.op. Hsg. Soc., J. P. Road, Andheri (W), Bombay-58. She is also having three more flats in her name. She has a son who helps her in this business of heroin trafficking. She can be identified by her burn marks on her neck and chest. Her late husband by name Shyam Narain Mishra, who was involved in heroin trade died under mysterious circumstances a few years back. She also stores huge quantities of white heroin and cash in her house."
Acting on the basis of the said information the officers of Customs had made three seizures. Firstly 30 grams of heroin was seized from accused No. 1 in the same afternoon near Breach Candy Swimming Pool where accused No. 1 had allegedly gone to deliver 30 gms. of heroin to accused No. 2. The second seizure had taken place the same evening in the flat belonging to accused No. 1 viz. flat No. 62, Venus Apartment, Altamount Road, Bombay from the possession of accused No. 3. In that seizure 50 gms. of heroin was seized during the personal search of accused No. 3. The third seizure took place same night in the early morning of 4th March, 1994 between 2 a.m. and 6 a.m. from the flat of accused Nos. 3 and 4 viz. flat No. 42 in Savita Co-operative Housing Society, J. P. Road, Andheri (West), Bombay. From that flat the officers has seized 4 kgs. of heroin. The samples taken from all the three seizures were sent to the office of the Deputy Chief Chemist. Customs House and according to the CA reports of the said Laboratory samples contained Placetyle Morphine. Those reports are dated 13-4-1994 which are produced at Exhibits 15, 16 and 23. On behalf of the prosecution 15 witnesses were examined which included Customs Officers e.g. PW 1 K.T. Sanches who was the Superintendent of Customs and a Gazetted Officer and was an empowered officer within the meaning of the provisions of the NDPS Act. It is he who had received the information and was personally present at the three sites at the time of search and seizure. The other witnesses are panchas to the three seizures who are PW 7 Rafic Khan for the seizure from flat at Altamount Road and PW. 8 Durga Chhatri who was panch for seizure of contraband from Andheri flat. During the course of investigation the prosecution also recorded the statements of all the accused persons in which they had admitted that they were dealing in heroin and the contraband was recovered from their possession on the relevant date by the Customs Officers. During the course of search of Flat No. 62 in Venus Apartment at Altamount Road the Officers had also seized foreign currency in terms of US dollars, Swiss Francs. Deutsche Mark and UAE Dirhams and Indian currency of Rs. 4 lakhs and Sony Transmitter etc.
3. In the trial Court various charges were framed for the offence of conspiracy under Section 29, for possession under Section 8(c) of the NDPS Act read with Section 21 of the NDPS Act and also under Section 135(1)(a) and 135(1)(ii) of the Customs Act. After considering the entire evidence on record the Trial Court acquitted original accused No. 2 of all the charges framed against him who was concerned with the first seizure by the side of swimming pool at Breach Candy where accused No. 1 was found in possession of 30 gms. of heroin and had gone to the site as per the information to deliver the same to accused No. 2. Accused No. 1 was also acquitted in respect of the first seizure of 30 gms. of heroin from him on the ground of non-compliance with the mandatory provisions under Section 50 of the NDPS Act in respect of which the complainants have filed Criminal Appeal No. 520 of 1996 against the order of acquittal of accused No. 1. The acquittal of accused No. 2 has not been challenged in this Court. The accused No. 1 was however convicted for offence of conspiracy along with accused Nos. 3 and 4 for the second seizure made from accused No. 3 in the flat at Altamount Road which belonged to accused No. 1. All these three accused were convicted for the offence of conspiracy under Section 29 read with Section 21 read with Section 8(c) of the NDPS Act and sentenced to suffer RI for 11 years and to pay a fine of Rs. 1,10,000/- in default to suffer further RI for one year. Accused No. 1 was also found guilty for offence under Section 135(1)(b) of the Customs Act and sentenced to RI for three years and to pay a fine of Rs. 5,000/- in default to suffer further RI for six months under Section 135(b)(ii) of the Customs Act. Accused No. 3 was further convicted for possession of 50 gms. of heroin which was seized from him in the flat of accused No. 1 and sentenced to suffer RI for 11 years and to pay a fine of Rs. 1,10,000/- in default to suffer further RI for one year for offence under Section 8(c) read with Section 21 of the NDPS Act. Accused Nos. 3 and 4 were further convicted for possession of 4 kgs. of heroin seized from their flat in Savita Co-op. Hsg. Soc. at Andheri, Bombay and sentenced to RI for 12 years and to pay a fine of Rs. 1,20,000/- in default to suffer further RI for one year for offence under Section 8(c) read with Section 21 of the NDPS Act. Lastly accused Nos. 3 and 4 were convicted for offence of abetment under Section 29 read with Section 8(c) read with Section 21 of the NDPS Act and each of them was sentenced to RI for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer further RI for one year. The above order of conviction and sentences recorded against these appellants so also the order of acquittal of accused No. 1 in respect of the first seizure are under challenge in the aforesaid appeals.
4. In view of the fact that this prosecution is concerned not with one or two but three seizures at different places and the evidence of 15 witnesses had to be considered so also the documentary evidence and statements of the accused persons and various questions of law having been involved. We heard all the counsel at length. So far as the appeal against order of acquittal of accused No. 1 in respect of first seizure is concerned, we find no substance in it. Accused No. 1 was acquitted in respect of the first seizure of 30 gms. recovered during his personal search near swimming pool mainly on the ground of non-compliance with the mandatory provisions under Section 50 of the Act. The trial Court disbelieved the same also on the ground that no panchas were present to witness the said seizure and the panchanama in respect of the said seizure was drawn not on the spot but at the Customs Office where panchas were present, called subsequently to witness not the search and seizure from the accused No. 1 but only to witness the drawing of the panchanama in the Customs Office.
5. Mr. Solanki, learned counsel appearing on behalf of the complainant vehemently contended that the acquittal of accused No. 1 in respect of the first seizure cannot be sustained as according to him firstly that the search was not from the person of accused No. 1 and, therefore, Section 50 was not attracted and secondly according to him even if the provisions of Section 50 are held to be attracted there was sufficient compliance with the same. We are unable to accept the said contention on either of the grounds. Firstly Mr. Solanki is not right in contending that 30 gms. of heroin was recovered from accused No. 1 not during his personal search but while handing over the same to accused No. 2. It is not in dispute that the officers were acting on the basis of prior information, yet independent witnesses like panchas were not taken to the site to witness the search and seizure. In response to the contention of the counsel that higher officials like gazetted officer had taken search and seizure and, therefore, it was not necessary to have the independent witnesses, we perused the evidence of customs officials including PW 1 who was Gazetted Officer and empowered officer to find out whether the 30 gms. of heroin was recovered during the personal search of accused No. 1 to attract the provisions of Section 50 or while handing over to accused No. 2 as argued. PW 1 who had received the information and was in the raiding party states in para 7 of his deposition that when accused No. 1 was in the process of handing over one polythene packet to accused No. 2 the officers intercepted him and accused No. 2. He further deposes that when the officers intercepted accused No. 1 the polythene packet containing the narcotic drug was in the hand of accused No. 1 and he was on the way to hand over the same to accused No. 2. The officers then took custody of that polythene packet which was containing some white colour powder. As against this PW 2 i.e. Albert Issac who was the Inspector of Customs, Bombay and was a member of the raiding party accompanying PW 1, states in para 4 of his deposition that initially personal search of accused No. 1 was conducted which resulted in the recovery of polythene sachet containing white colour powder substance and Finnish Passport with photograph of accused No. 1. The third witness examined on behalf of prosecution i.e. PW 6 Inspector Jayaraj Nair states in para 4 of his deposition that personal search of accused No. 1 was carried out by the officer Issac i.e. PW 2 in the presence of Superintendent i.e. PW 1 and the personal search of accused No. 1 resulted in recovery of polythene packet containing off white colour powder and Finnish Passport of accused No. 1. Thus according to the two members of the raiding party the contraband was recovered from accused No. 1 during his personal search and they do not say that the polythene packet was in the hand of accused No. 1 and he was on his way to hand over the same to accused No. 2. Thus the contraband appears to have been recovered from accused No. 1 during his personal search. The argument of Mr. Solanki is contrary to the evidence of the prosecution witnesses.
6. If the search was pursuant to the prior information and the recovery was made during the personal search of accused No. 1, the mandatory provisions of Section 50 were attracted. As regards the compliance with the mandatory provisions under Section 50 is concerned, though the officers deposed that the accused was informed of his right for search in the presence of any Gazetted Officer or Magistrate, the same is not supported by independent witness. Admittedly no independent witness was present at the time of search of accused No. 1 when the first seizure was effected nor the said version is supported by any contemporaneous document like seizure panchanama which is Exhibit 30. It appears to us to be a clear case of improvement made at the time of deposition in the Court by the officers. The reliance is placed in this connection on behalf of the defence on the judgment of the Supreme Court in the case of K. Razak v. State of Kerala reported in 2000 SCC (Cri) 829. In the said case the Supreme Court did not accept the ipse dixit of the police officer with regard to the compliance of Section 50 of the Act without corroboration from independent witnesses and observed that the graver the consequences the greater must be the circumspection to be adopted. In the above state of depositions and in the absence of mention in the seizure panchanama, we are not convinced that there was compliance with the mandatory provisions under Section 50 of the Act. This is an appeal against acquittal, and we do not find the reasons given by the trial Court for acquitting accused No. 1 in respect of the first seizure for non-compliance of Section 50 of the Act to be perverse which would impel or warrant us to take a different view in appeal against acquittal. We, therefore, confirm the order of acquittal of accused No. 1 recorded by the trial Court in respect of the alleged first seizure from him and, therefore, dismiss Criminal Appeal No. 520 of 1996 filed against the order of acquittal of accused No. 1.
7. The next question to be considered is about the second seizure of 50 gms. of heroin made from accused No. 3 in the flat in Venus Apartment, Altamount Road which belonged to accused No. 1. The case of the prosecution is that when the officers of Customs were searching the flat of accused No. 1 pursuant to the information, gist of which is produced at Exh. 12 and reproduced herinabove, accused No. 3 happened to knock the door and entered the flat when the door was opened by Customs Officer, When enquiry was made about his name and purpose of visit he got frightened and thereafter his personal search was taken during which 50 gms. of heroin was recovered from his pocket. Counsel for accused No. 3 contended that since it is not in dispute that the contraband was recovered from the personal search of accused No. 3 and when the officers were acting pursuant to the prior information the compliance to the provisions of Section 50 had become imperative and the officers not having apprised the accused No. 3 of his right under the said provision, second search and seizure of 50 gms. from the person of accused No. 3 has become suspect and, therefore, conviction of accused No. 3 for the said seizure was illegal.
8. The question to be considered here is whether the officers were acting on the basis of prior information in connection with the personal search of accused No. 3. It cannot be doubted or disputed that 50 gms. of heroin was recovered during his personal search as the same was recovered from his pocket. In order to consider whether the officers were acting pursuant to the prior information in respect of the said personal search of accused No. 3 we will have to consider firstly, what was the information which was received by the officers and secondly whether in the facts and circumstances of the case it can be said that the officers had reason to believe that the accused No. 3 was having contraband under the provisions of the NDPS Act in his possession. The gist of information which is quoted above states about accused No. 1 receiving supplies of heroin from one Mrs. Mishra i.e. accused No. 4 and that she has a son who helps her in this business of heroin trafficking. It is not in dispute that when ultimately accused No. 3 disclosed his name it was Manoj Singh and not Mr. Mishra nor the officers had at that time any reason to believe that he was the son of accused No. 4. Even accused No. 4, who is stated to be Mrs. Mishra as per the information, has given her name as Rajmani Singh. The information was that Mrs. Mishra was staying in Flat No. 42 in Savita Co-op. Hsg. Soc., J. P. Road, Andheri but the name of the residence given by accused No. 3 at the relevant time was not of flat in Savita Co-op. Hsg. Soc. but Trishul Apartment, Flat No. 701, 6th floor, J. P. Road, Versova, Andheri which is different from the flat of Mrs. Mishra mentioned in the information. In the deposition of the prosecution witnesses there is no mention that before the search of accused No. 3 was taken they were told or had learnt that he was the son of Mrs. Mishra in respect of whom information was received by the Customs Officers.
9. The reliance is placed in this connection on behalf of the defence on the judgment of the Supreme Court in the case of Mohinder Kumar v. State, Goa . No doubt that was a case where the police officers on suspicion had entered the house of the accused where they stumbled with contraband. Thereafter they took the personal search of the accused during which contraband was recovered from him. In that context the Supreme Court held that the officers had reason to believe that the accused was having contraband on his persons and, therefore, the provisions of Section 50 were held attracted. In our view the ratio of that decision would not be applicable in this case for the simple reason that though in that case the officers had entered the house of accused on suspicion, but after the recovery of the contraband from the house, they had good reason to believe that the accused must be carrying the contraband on his person also without which they would not have undertaken the personal search of the accused. In order to attract the application of Section 50 what is required is that either the officers are acting on the basis of prior information or they had reason to believe that the accused was in possession of contraband. Belief is a stage higher than mere suspicion. In Mohinder Kumar's case once the officers had found contraband in the house, the personal search of the accused was taken because they had good reason to believe that the accused in all probability must be carrying contraband even on his person. In the instant case, however, it cannot be said that the officers had any reason to believe that every person who entered the flat was likely to carry contraband with him, because, as it is, the information was not about accused No. 1 receiving supplies from persons other than Mrs. Mishra and her son. Moreover the information was not only about accused No. 1 keeping heroin in his house but also about keeping huge amount of foreign currency and Indian currency and a transmitter which was found. In the aforesaid circumstances it cannot be said that the Customs Officers had reason to believe that accused No. 3, when he entered the said flat, was carrying heroin with him. Thus it was a case of chance recovery and, therefore, the provisions of Section 50 were not attracted. So far as this seizure is concerned the officers were accompanied by an independent witness PW 7 who has supported fully the evidence of the Customs Officers about the recovery or seizure of 50 gms. of heroin which was in the form of white powder from the personal search of accused No. 3 and, therefore, in our view the said seizure cannot be doubted. Even otherwise the evidence of Customs Officers in respect of the second seizure is not inconsistent inter se and, therefore, is unassailable.
10. So far as the third seizure is concerned, the same was made from flat No. 42 in Savita Co-op. Hsg. Soc. at J. P. Road, Andheri, Bombay which belonged to accused Nos. 3 and 4. It was their ordinary place of residence. The officers, after two seizures having been made at Breach Candy and flat in Altamount Road, recorded the statements of the accused persons under Section 67 of the Act in the Customs Office. When the accused No. 3 had entered the flat at Altamount Road, he disclosed to the officers that he had come to the said place in his own car in which his mother i.e. accused No. 4 was sitting. Therefore, after seizure of 50 gms. from accused No. 3 and after the search of flat of accused No. 1 at Altamount Road, accused No. 4 was also taken to the office of Customs where her statement also came to be recorded. In their statements recorded under Section 67 of the NDPS Act, accused Nos. 3 and 4 admitted that they had stored 4 kgs. of heroin in their flat at Savita Co-op. Hsg. Society at Andheri. It may be borne in mind that the information was about accused No. 4 who was making supplies of heroin from her flat at Savita Co-op. Hsg. Society and before the officers had gone to the said flat the inmates of the said flat were incidentally accosted or apprehended at Altamount Road and in their statements recorded prior to the officers going to the said flat for search, both of them had even mentioned the quantity of 4 kgs. of heroin in their statements, which according to them was stored in their flat, which was not the part of the information, and when the officers visited the said flat they found exactly 4 kgs. of heroin in the said flat. That seizure had taken place on the same night after midnight when the officers took search of the said flat. The said contraband was brought to the office of Customs and thereafter further statements of accused Nos. 3 and 4 were recorded under Section 67 of the NDPS Act after issue of summons to them in which they again confessed the possession and seizure of the said contraband.
11. On behalf of the defence it was contended that the said seizure cannot be believed or trusted on various grounds. It was firstly argued that the prosecution cannot be believed as regards the key of the said flat. According to the counsel the key of the flat cannot be with Mrs. Mishra who must have been searched in the office of the Customs when she was allegedly taken from Altamount Road before going to Andheri flat for search. Although the statement of accused No. 4 was recorded there is no mention that she was carrying the key of the flat with her. Secondly it is argued that the panch PW 8, who was the watchman of the building, does not say that accused No. 4 was accompanying the officers when they visited the said flat after midnight on that day. The panch PW 8 was declared hostile. But he has deposed about the visit of the Customs officers on that night at the said flat. Though the officers have deposed that the search of the flat had taken place in the presence of panch PW 8 and the panch has said that he was only told that they wanted to visit the flat of accused No. 4 and on their way back they had obtained his signatures on some papers, the visit of the officers at the said flat having been admitted by the said panch, the recovery of large quantity of contraband which was of 4 kgs. of heroin valued approximately at Rs. 8 lakhs cannot be doubted in view of the evidence of the Customs Officers including PW 1 who was an empowered officer and a Gazetted Officer of the rank of the Superintendent of Customs supported by the statements of both the accused Nos. 3 and 4 recorded under Section 67 of the NDPS Act, both before and after the said seizure, which statements are indisputably relevant and admissible.
12. In our opinion, in view of the other evidence on record which corroborates the deposition of the officers as regards the seizure, the panch not supporting the prosecution case as regards actual seizure in his presence would not throw the prosecution case to winds. The panch though stated that he was not taken to the flat at the time of search there, he does support the prosecution case that the officers had visited the said flat in the midnight at about 2 a.m. on that night. According to the officers the seizure panchanama in the said flat was drawn during 4 a.m. to 6 a.m. Thus the evidence of panch to the extent that the officers had visited the said flat on that night after midnight supports the case of the prosecution. The recovery of 4 kgs. of heroin is supported by the statements of both the accused i.e. accused Nos. 3 and 4 which were recorded before as well as after the seizure. Merely because the panch only partly supports the prosecution case but does not support the actual seizure should not reflect adversely upon the other prosecution evidence.
13. In this connection reference may be made to the judgment of the Supreme Court in the case of Rangi Ram v. State of Haryana reported in 2000 East Cr. C. 671 (SC). That was a case where the independent person was not kept present at the time of seizure of the contraband under the provisions of the NDPS Act but the accused was convicted upon the evidence of the Investigating Officer and Head Constable. The appellant was found carrying poppy husk at midnight in the river bed. The Supreme Court held that not keeping an independent person present at that time did not reflect adversely upon the other prosecution evidence and confirmed the conviction of the accused. Similarly in the case of Ashok Kumar v. State of Haryana reported in 2000 Cri LJ 3186 (Supreme Court) an independent witness was not kept present at the time of search and seizure under the provisions of the NDPS Act. The accused was searched in the presence of a Magistrate whose evidence was led before the Court but he could not identify the accused in the Court. Relying on the evidence of the officers the accused was convicted and the conviction was confirmed by the Apex Court.
14. It was next contended on behalf of the defence that since the statements of the accused were retracted the same cannot be relied on by the Court though they are otherwise admissible in law. In this case no doubt the statements were retracted on the following day. In our view the retractions are, however, too vague to discard the confessional statements in toto. The retraction was made in the Court on the following day when accused were produced for their remand. As per the noting of the learned Magistrate written retractions were filed in the Court by the Advocate on behalf of accused Nos. 3 and 4. The retractions made by accused Nos. 3 and 4 are produced on record as parts of Exhibit No. 34 collectively. They are dated 5-3-1994 in which it is stated that the officers had obtained their statements under force and coercion. The contents of the incriminating statements were denied which according to the accused were neither voluntary nor true. It is pertinent to note that the nature of force and coercion used or particulars of threats given are not mentioned in the said retractions, nor is it the case of the defence that they were having any physical injuries on their person or there is any medical report in support of their case on record. Merely because the retraction was made on the next day, which was filed by their Advocate, it cannot be said that the confessional statements of the accused lose all credibility.
15. In this connection reference may be made to the decision of the Supreme Court in the case of Pon Adithan v. Deputy Director, NCB, Madras reported in 1996 Cri LJ 3663. The Apex Court had not relied on the retraction on the ground that the accused had not stated what was the nature of threat given to him and the manner in which the pressure was brought upon him and upheld the finding of the trial Court that the confessional statement was voluntarily made and was safe to rely upon the same. No doubt in that case the retraction was made very late i.e. at the time of cross-examination of the witnesses and in 313 statement of the accused. That will not, in our view, make any difference. In this case the accused were undoubtedly under the legal advice and the retraction was filed as per the record of the Court by the Advocate of the accused. The said retraction had not given any particulars of the force, threat or coercion used against the accused. Similar view was taken by the Apex Court in the case of Kalema Tumba v. State of Maharashtra reported in 2000 Cri LJ 507.
16. The defence counsel also contended that there was non-compliance with Section 42 of the Act. Section 42 of the Act requires that whenever information is received the same has to be reduced to writing and copy thereof sent to the superior officer. Secondly it requires that if the search of the premises is made after sunset and before sunrise, either the permission should be taken of the empowered officer or the reasons should be mentioned for not obtaining such permission. In our view there is sufficient and substantial compliance with Section 42 of the Act inasmuch as the information received by PW 1 was reduced to writing which is produced at Exhibit 12 on record and according to PW 1 copy thereof was sent to the Assistant Collector of Customs. Secondly he being an empowered officer and himself was at all the sites including for the search of flat at Andheri there was no necessity of his obtaining permission in that behalf. Reliance can be placed on the recent Judgment of the Supreme Court in the case of T. Thomson v. State of Kerala, reported in 2001 (1) Jhr CR 284 (SC). In para 6 of the said judgment the Apex Court has held that if the Gazetted Officer himself were to conduct the search or is party to the raid it is unnecessary for him to get any other authorization from another Gazetted Officer. In this case it is not in dispute that PW 1 was a Gazetted Officer and was present for the search of Andheri flat belonging to accused Nos. 3 and 4 which had taken place in the early hours of 4th March, 1994 i.e. before sunrise. In the case of Sajan Abraham v. State of Kerala, reported in 2001 SOL Case No. 435 decided on 7-8-2001 it was held by a three Judge Bench of the Supreme Court that the provisions of Section 42 of the Act should not be interpreted by the Court so literally as to render its Compliance impossible.
17. Next it was contended that the prosecution has not established the link between the seizure made from the accused and the sample sent to the office of the Deputy Chief Chemist on whose report the prosecution relies to show that what was recovered from the accused was heroin attracting the punishment under the provisions of the NDPS Act. So far as the first seizure is concerned the same is held to be suspect in view of the non-compliance with the mandatory provisions under Section 50 of the Act and the seizure having taken place in the absence of independent witness in respect of which panchanama was drawn not on the spot but in the Customs Office. As far as the second seizure is concerned, which had taken place in the flat of accused No. 1 in the personal search of accused No. 3, is supported by independent witness panch PW 7. The panch has not supported the third seizure having taken place in his presence. Both the second and third seizures were corroborated by the contemporaneous documents like seizure panchanamas drawn on the spot. After the seizures were made they were brought to the Customs Office and were deposited in the Customs godown for safe custody extract of which is produced at Exh. 56. The same is deposed to by PW 6 who was the Intelligence Officer DRI, Bombay Jayaraj Nair. So far as the sample packets are concerned, the same were kept by PW. 1, the Superintendent of Customs K.T. Sanches from the day of seizure till they were sent to the office of the Deputy Chief Chemist, Customs House on 23rd March, 1994. It was argued by the defence counsel that the sample and seal having been kept with PW 1 for such a long time, the opportunity to tamper with the sample cannot be ruled out. Reliance is placed on some decisions of the Division Benches of this Court which were followed by one of us (Parkar, J.) sitting singly. In those decisions the view taken is that the sample and the seal, specimen impression of which is sent to the office of the C. A., should not remain with the Investigating Officer, in order to exclude the chance or possibility of tampering with the sample. In this connection the judgment of the Division Bench of this Court in the case of Mohd. Hussain Babamiyan Ramzan v. State of Maharashtra reported in II (1994) CCR 1223 was cited. In that case SI Singh had handed over the samples to PI Ghuge for safe custody between the period of 31st July 1990 when the samples were drawn and seized until 3rd August 1990 when they were sent to the office of C. A. The Division Bench observed that though the Bench did not want to indicate that PI Ghuge had tampered with the said sample, the possibility of the said sample being tampered with during the period of three days was not excluded by the prosecution by leading satisfactory evidence and that by itself is sufficient to discard the certificate of the Chemical Analyser certifying that the said samples which were examined by him contained heroin and thus the prosecution had failed to establish by reliable evidence that the samples which were taken out from the material which was seized from the accused contained heroin. Secondly reliance was also placed in this connection on the judgment in the case of Wessel Van Beelan v. State of Goa . In that case the charas was seized on 10-5-1996 and the sample drawn from there was sent to the office of the Chemical Analyser on 11th May, 1996. The seal used for sealing as well as the sample packet had remained in the custody of the search officer during the intervening night. The Bench held that it created serious doubt whether the sealed cover was not tampered with before it was sent for analysis. Reference was also made to the decision of the Division Bench of this Court in the case of Murata Chiharu v. State of Goa, reported in 1998 All M.R. (Cri) 889. In that case the seizure had taken place on 16-5-1996 from which the sample was drawn. The search and seizure was made by PSI Mhamal and the sample was sent under forwarding letter dated 17-5-1996 signed by PI Jadhav forwarding the sample for analysis. The said forwarding letter contained the impression of the seal used on the sample. PSI Mhamal had deposed that the impression of the said seal on the forwarding letter was affixed by him. In that context the Division Bench questioned as to wherefrom PSI Mhamal got the seal to affix the impression thereof on the forwarding letter on 17th May, 1996 when according to his deposition the seal was handed over to PI Jadhav on 16-5-1996 itself after the seizure and there was no record to show that PSI Mhamal had taken back the seal on 17-5-1996 for affixing the impression and, therefore, according to the Division Bench, the natural inference was that either the seal was retained by PSI Mhamal with him for a day or it was freely available to him though it was handed over to PI Jadhav. In the absence of explanation by the prosecution about the custody of the seal it was held that the link between the sample drawn from the contraband seized from the accused and the one sent to the CA for analysis had not been established.
18. In the aforesaid cases either there was no evidence whether the seal was given in the custody of the higher officer or both the seal and the sample remained in the custody of the Investigating Officers. In support of this contention reliance was also placed on Section 55 of the NDPS Act under which all the material including the contraband and the sample seized are required to be deposited with the officer-in-charge of a police station for safe custody who has to affix his seal i.e. the seal of the officer-in-charge of the police station. It was, therefore, argued that in this case PW 1, who was party to the raid, had kept the seal and sample with him but did not deposit the same with an independent agency.
19. As regards Section 55 of the NDPS Act the same was considered by the Apex Court in the case of Karnail Singh v. State of Rajasthan reported in 2000 Cri LJ 4635. No doubt that was a case where the seized goods and the samples were kept in Malkhana but the Apex Court has held that compliance with Section 55 of the Act cannot be insisted upon when the articles seized had been forwarded to the empowered officer under Section 52(3)(b) of the Act. The argument advanced in that case was that the empowered officer who is considered to be an officer-in-charge of the police station had to put his own seal.
The said argument was turned down on the ground that since the articles were in the custody of the empowered officer he was not required to put his own seal.
20. In the instant case it is not disputed that as per the prosecution evidence, PW 1 Sanches, who was an empowered officer and a Gazetted Officer, had kept the samples in his custody. Simply because PW 1 admits that there was no record to show that the samples were lying in his custody, the evidence given by PW 1, who was a Gazetted Officer, which is supported by other customs officers, cannot be doubted that the custody of the sample was with him until it was sent to the office of CA. Even PW 6 Nair who was a member of the raiding party and had also delivered the sample packets to the Office of Deputy Chief Chemist says in para 19 of his deposition that after the seizure till the samples were delivered to the office of Dy. C.C., they were in the custody of his Superintendent i.e. PW 1 Sanches from whom he collected the sample packets on 23-3-1994 for delivering the same to Dy. Chief Chemist. On behalf of the prosecution reliance is placed on recent judgments of the Supreme Court which were not either cited or available when the Judgments of the Division Benches of this Court were delivered on the point.
21. In this connection reference may be made to the decision of the Supreme Court in the case of Rangi Ram v. State of Haryana reported in 2000 East Cr. C. 671 (SC). It was contended on behalf of the defence that Section 52 was not complied with inasmuch as the seized articles were not forwarded to the officer empowered under Section 53 of the Act. i.e. to an officer-in-charge of the nearest police station. It was observed by the Apex Court that there was no substance in the said submission because the person who had arrested the accused and seized the articles was himself an officer-in-charge of the nearest police station meaning thereby that when the seizing officer himself is an empowered officer the seized articles can be retained by him. It was further argued in that case before the Apex Court that the seal on the gunny bag when examined in the Court was found broken and, therefore, there was no guarantee what was found from the gunny bag. Meeting the said argument it was held that from the material which was found from the gunny bag the sample was taken and the chemical analyser had reported that it was powder of poppy husk. There of course the argument was with regard to the seal on the gunny bag in which the contraband seized from the accused except the samples was stored. Relying on the report of the chemical analyser, according to which the sample was of poppy husk, it was held by the Apex Court that when the seizure was of poppy husk and merely because the seal on the gunny bag was broken, it could not be said that there was no guarantee as to what was found from the gunny bag was poppy husk.
22. Reference may also be made to the judgment of the Apex Court in the case of Ashok Kumar v. State of Haryana reported in 2000 Cri LJ 3186. It was contended on behalf of the accused in that case that the seals on the packets produced before the Court were very faint and could not be read properly and, therefore, there was no reliable evidence to prove that the samples seized from the appellant were the same as were examined by the Chemical Analyser. Rejecting the said argument it was observed that the report of the Chemical Analyser clearly establishes that the articles examined by him were the articles connected with that case and neither report of the Chemical Analyser was challenged nor any application was made for examining him as witness to establish that the seals on the samples were faint when received by him and it was not possible to say whose seals they were.
23. The next judgment relied on behalf of the prosecution is in the case of Jagdish Purohit v. State of Maharashtra reported in AIR 1988 SC 3328. In that case the CA reports were challenged as they did not contain any data regarding the test applied by the chemical analyser for finding out the sample examined by him. The Supreme Court found that the CA report did show that a qualitative test was followed by the Chemical Analyser and found Methaqualone in the samples examined by him. In that context the Supreme Court relied on the other evidence including the evidence of two officers who had tested the substance with the help of field testing kit at the time of seizure and found the tablets to be of Methaqualone which are prohibited under the provisions of the NDPS Act. Relying on the evidence of those two officers who had stated that they had received sufficient training and they had sufficient knowledge about the narcotic substance and the methods of testing them coupled with other evidence on record to show that Methaqualone powder and tablets were found from the appellant's factory, it was held that even if CA reports were ignored, there was sufficient evidence on record on which the conviction could be upheld.
24. In the present case the officers of the Customs Department have deposed that when the white powder from the possession of the accused was recovered, the same was tested with a field testing kit when it answered positive for heroin. PW 2 Inspector Issac in para 6 of his deposition stated as regards the first seizure that small quantity of powder was tested with the help of field testing kit and the test answered positive for the presence of heroin. PW 6 Jayaraj Nair, the Inspector of Customs who was party to the second seizure deposed in para 8 of his evidence that on testing the powder answered positive for the presence of heroin. Similarly as regards the third seizure from the flat of accused Nos. 3 and 4 at Andheri, the said witness in para 14 of his deposition stated that small quantity of powder was tested by officer Shridhar and the test answered positive for the presence of heroin. PW 13 Inspector Shridhar in paragraph 3 of his deposition stated that small quantity of the substance from each of the packets (recovered in the third seizure at flat in Andheri) was tested which answered positive for heroin. This is not challenged in the cross-examination nor the ability of the officers to carry out the test was questioned. Relying on the evidence of seizing officers in Purohit's case (supra) the Supreme Court has in para 3 of the judgment observed that even if C.A. reports are ignored there is sufficient evidence on record to show that Methaqualone powder and tablets were found from the appellant's factory. Moreover it is important to note that normally the narcotics drug called heroin is of brown colour whereas in this case the powder seized was of off white colour as per the seizure panchanama and the deposition of the witnesses and the CA reports also mention that the sample was of white Coarse powder in all the three reports pertaining to the three seizures. In Purohit's case the Supreme Court has also relied on the circumstance that the factory from where the contraband was seized belonged to the accused. In this case large quantity of heroin was seized from the flat at Andheri which belongs to accused Nos. 3 and 4. The said flat is in the name of accused No. 4 in a Co-op. Hsg. Society which is not in dispute. The ownership and possession of accused Nos. 3 and 4 in respect of the said flat is not denied. From the said flat large quantity of 4 kgs. of heroin was seized.
25. Similarly reference may be made to the judgment of the Supreme Court in the case of Kalema Tumba v. State of Maharashtra reported in 2000 Cri LJ 507. In para 6 of the judgment the Apex Court while dealing with the submission made on behalf of the accused that no reliance should be placed on CA report as being cryptic, had placed reliance on the testing made by the CBI officers in respect of the contraband which answered positive for heroin. In the said paragraph the Supreme Court had also placed reliance on the confessional statement of the accused recorded under Section 108 of the Customs Act in which the accused had admitted or confessed that he was carrying heroin. Thus the test made by the CBI officers and the confessional statement of the accused was relied on by the Apex Court to support the findings of CA when a doubt was sought to be created on behalf of the accused that the CA report should not be relied on by virtue of being cryptic.
26. In the instant case, as pointed out earlier, there is unchallenged evidence of the Customs Officers deposing that when the contraband was tested at the time of seizure it answered positive for heroin. Secondly there are confessional statements of both accused No. 3 as well as accused No. 4 recorded under Section 67 of the Act, both before as well as after the third seizure in which the accused have confessed that they were possessing 4 kgs. of heroin in their flat at Andheri. It may further be pointed out that the forwarding fetters or test memos for the purpose of forwarding the samples to the office of the Deputy Chief Chemist were prepared and they were signed immediately after the third seizure was over as deposed to by the prosecution witnesses. This would show that though the samples were not sent to the office of Deputy Chief Chemist until 19th or 20th March 1994 but the letters in all respects including the specimen impression of the seal were prepared immediately after the third seizure and before handing over the seals and samples to PW 1, an empowered Gazetted Officer. In this respect reference may be made to the evidence of PW 6. In para 18 of his evidence he deposes that on 3-3-1994 he prepared two test memos in respect of the first two seizures and prepared the third test memo in respect of the third seizure at Andheri on 4th March, 1994. It cannot be forgotten that first two seizures had taken place in the afternoon of 3rd March 1994 while the third seizure had taken place in the early morning hours of 4th March, 1994 and the panchanama was over by 6 a.m. on 4th March, 1994. He further states that the first two test memos were signed by him while the third memo in respect of the seizure from Andheri flat was signed by PW 13 Inspector Shridhar. This is also corroborated by the evidence of PW 13 Sridhar when he deposes in para 5 of his evidence that on 4th March 1994 PW 6 Jayraj prepared number of test memos and obtained his signatures. He identifies his signature on the forwarding letter dated 4-3-1994 Exhibit 23.
27. Thus in our view the reliance heavily placed on behalf of the accused on the judgment of the Division Bench of this Court in the case of Mohd. Hussain Babmiyan Ramzan v. State reported in II 1994 CCR 1223 will not be applicable to the facts of this case. In that case seizure was dated 31-7-1990 and the forwarding letter appears to be dated 3-8-1990 and thus seal impression must have been put on the letter on 3-8-1990 and therefore seal was available with I.O. till 3-8-1990. Even specimen seal impression was not readable. Here that is not the case. Moreover in the present case reliance is placed on the confessions of the accused recorded under Section 67 of the NDPS Act which are undisputedly admissible in evidence. We have also held that the said confessions cannot be rendered inadmissible or unreliable simply because the accused had retracted their confessions on vague grounds without having been substantiated by giving either particulars or leading evidence in that behalf. In Ramzan's case there was no corroborating circumstance like the confessional statement of the accused as in the present case.
28. In our view the reliance placed on behalf of the accused on the decision of the Division Bench of this Court in Ramzan's case (supra) will not be of assistance to the accused nor the decision of the Division Bench of this Court in the case of Murata Chiharu's v. State of Goa, reported in 1998 All M.R. (Cri) 889. In Chiharu's case the custody of the samples was with PSI who was not an empowered or Gazetted Officer and so far as the seal is concerned the Division Bench was left with nothing but to guess whether the seal was handed over to PI Jadhav i.e. higher officer or it was freely available to PSI Mhamal. In the present case PW 1, the empowered officer has stated categorically in para 4 of his evidence that the seized property was in his custody and kept under his lock and key from the time of seizure till it was deposited in the godown or sent to the Chemist. Similarly PW 2 Inspector Issac in para 10 of his deposition states that after the panchanama formalities were over the three sample covers and the cover containing the balance were given in the custody of the Superintendent. PW 6 Nair also in paragraph 19 of his deposition stated that after the seizure and till the samples were dispatched to the Dy. Chief Chemist they were in the custody of Superintendent i.e. PW 1 Sanches. Moreover PW 6 Nair also deposed that after the reports of the Chemist were ready, he collected the covers along with the remnants and those covers of the samples as well as remnants received from the office of the Dy. C.C. have been identified by PW 1 Sanches in paragraph 12 of his deposition to be the same which were collected from the seized drugs in his presence and in the presence of the witnesses. He identified his signatures also on the covers. These aspects have not been challenged in the cross-examination of the witnesses.
29. Similarly the unreported judgments of one of us (Parkar, J.) sitting singly relied on behalf of the accused will not be of assistance to the accused in this case. For instance in the case of Kamlaksh Shetty v. State of Maharashtra (Criminal Appeal No. 152 of 1997 decided on 6th & 7th June, 2001) the sample was kept with the Investigating Officer who was not an empowered officer nor there was any statement of the accused recorded under Section 67 of the Act. Similarly in the case of Modaram Purohit v. State of Maharashtra (Criminal Appeal No. 582 of 1998 decided on 24th July 2001) there was no confessional statement of the accused recorded under Section 67 of the Act and it was not clear as to when the seal impression was put on the forwarding letter addressed to the CA.
30. As pointed out earlier, in the case of Rangi Ram (supra) the Supreme Court had held that when the officer who seized the articles is himself an empowered officer or an officer in charge of the police station, there was no question of the seized articles being forwarded to the empowered officer under Section 53 of the Act. In the present case simply because the samples were in the custody of PW 1 Sanches who was an empowered officer, it cannot be said that doubt is created about tampering with the same. If there is any doubt the same is removed in view of the other corroborating circumstances which are pointed out earlier. For instance the confessions of the accused and the absence of any other circumstance negativing the prosecution case.
31. Reliance placed on behalf of the accused on the decision of the Supreme Court in the case of Valsala v. State of Kerala , also will not be of assistance to the accused. In that case there was no evidence as to under whose custody the seized articles were kept after the seizure and according to the finding of the Supreme Court the seized articles were not kept in proper custody and the evidence of PW 6 who seized the article was silent as to what he did with the seized article and PW 7 in his cross-examination admitted that he did not even see if the seized material was sealed or not. It is further observed by the Apex Court that there was no evidence to show whether the seized article was sealed. Similarly in the case of Gurbax Singh v. State of Haryana reported in 2001 SCC (Cri) 426 the seal was handed over to PW 1 panch and was kept with him for a period of ten days and the muddemal parcels were not sealed by the officer-in-charge of the police station. In that context the Supreme Court doubted whether the sample was sent to the Chemical Analyser. In the present case the said situation does not arise and as held by the Supreme Court in the recent case of Karnail Singh v. Stale of Rajas than, reported in 2000 Cri LJ 4635 compliance to Section 55 cannot be insisted upon when the seized articles are forwarded or kept with the officer empowered under Section 53 of the Act. It is not in dispute that PW 1 Sanches was an empowered officer.
32. The defence counsel also contended that the samples when sent to CA office were marked as S-1, S-2 and S-3 which marks were not put on them at the time of seizure when the panchanamas were drawn as it is not mentioned in the panchanamas and thus the identity of the samples sent to the CA is not established. We are not impressed by this argument. The three seizures have taken place on that day and night, one after another. The officers could not have contemplated that there would be three seizures on that day. After the three seizures, before the samples were sent to the office of CA, in order to give separate identity to the different samples, the samples pertaining to three seizures were given separate numbers as S-1, S-2 and S-3 to indicate the first, second and third seizure respectively. The Test Memos or the forwarding letters not only mention the markings of S-1, S-2 and S-3 but also the names of the accused from whom it was seized, the total quantity recovered and also the place from which the seizure was made which clearly indicate as to which seizure each sample pertained. Thus there is no substance in this argument also.
33. We have already held that the acquittal order of accused No. 1 in respect of the first seizure cannot be set aside as there was non-compliance with the mandatory provisions under Section 50 of the Act. However, on behalf of the prosecution it is contended that accused No. 1 should be convicted for offence of conspiracy under Section 29 of the NDPS Act in respect of the second seizure at his flat from the personal search of accused No. 3 so also for the third seizure of contraband from the flat of accused Nos. 3 and 4 from Andheri premises. According to the counsel the charge of conspiracy is proved by virtue of the confessional statement made by accused No. 1 and the confessional statements of accused Nos. 3 and 4 who, according to us, are liable to be convicted for possession of the contraband.
34. So far as the seizure from Andheri flat is concerned which belongs to accused Nos. 3 and 4, we do not think that the accused No. 1 can be said to have any hand or link with them for possession of contraband in the said flat. Even as regards the recovery of 50 gms. of heroin from the personal search of accused No. 3 in the flat of accused No. 1 at Altamount Road is concerned, it is difficult to link the accused No. 1 with the said recovery or hold him guilty of the charge of conspiracy on the basis of the confessional statements of accused No. 1 and accused No. 3. No doubt accused No. 1 has stated in his statement that he used to purchase heroin from accused Nos. 3 and 4 and accused No. 3 in his statement stated that he had, at the relevant time gone to the flat of accused No. 1 to sell 50 gms. of heroin to accused No. 1. Undisputedly the accused No. 1 was not in his flat when the officers were searching his flat and accused No. 3 went there when he was found in possession of 50 gms. of heroin. No doubt so far as the offence of conspiracy is concerned it is a matter of inference. However, the confession, whether of accused No. 1 or co-accused No. 3, cannot be made the sole basis for conviction of accused No. 1. Reference may be made to the decision of the Supreme Court in the case of Nathu v. State of U. P. . In the said case it was held that the confessions of co-accused are not evidence as defined in Section 3 of the Evidence Act and no conviction can be founded thereon. But if there was other evidence on which conviction can be based the confessions can be referred to as lending assurance to that conclusion and for fortifying it. Similar view was taken by the Supreme Court in the case of Chandrakant Desai v. State of Gujarat (1991-(000) -GJX-0708-SC) (Criminal Appeal No. 495 of 1979 decided on 12-12-1991) decided by the Three Judge Bench of the Supreme Court relying with approval on the decision of the Apex Court in the case of Kashmira Singh v. State of M. P., .
35. Mr. Solanki heavily placed reliance on the judgment in the case of Naresh J. Sukhawani v. Union of India . That was a case arising from the adjudication proceedings under the Customs Act to which even the procedure laid down under the Evidence Act is not strictly applicable. It being adjudication proceedings, the punishment is only in terms of penalty and no substantive sentence is prescribed. In our opinion the ratio of that decision will not be applicable to the provisions of NDPS Act prescribing severe punishment. Moreover, in view of the judgment of the Supreme Court in Kashmira Singh's case followed in the aforesaid later decisions we are of the view that accused No. 1 cannot be convicted only on the basis of the confessional statements.
36. So far as the conviction and sentence recorded against accused No, 1 under the Customs Act is concerned, it was not challenged before us. There is enough evidence to confirm the conviction of the accused No. 1 under Section 135 of the Customs Act. Apart from the evidence of the Customs Officers there is recovery of large amount of foreign exchange as well as Indian Currency and Sony Transmitter from the flat of accused No. 1 which is corroborated by the confessional statement of accused No. 1 and also supported by panch PW 7.
37. The defence counsel lastly submitted that the default sentence may be reduced from one year to three months on each count. The said submission is not unreasonable.
38. In the result Criminal Appeal No. 376 of 1996 is partly allowed. The order of conviction and sentence recorded against accused No. 1 under the provisions of the NDPS Act is set aside but the order of conviction and sentence recorded against him under the provisions of the Customs Act is confirmed. Accused No. 1 is entitled to be released from his custody on his undergoing the substantive sentence awarded to him under the provisions of the Customs Act and on payment of fine imposed on him under the said provisions.
Criminal Appeal No. 520 of 1996 filed by the complainant against accused No. 1 against the order of his acquittal in respect of first seizure is dismissed and the order of acquittal is confirmed.
Criminal Appeal No. 441 of 1996 filed by accused Nos. 3 and 4 is partly allowed. The convictions and substantive sentences recorded against each of them under the provisions of NDPS Act are confirmed. However, in view of the fact that each of the accused Nos. 3 and 4 have been convicted and sentenced under four heads for different offences in respect of the same seizure under the provisions of the NDPS Act itself, the default sentence on each count is reduced from one year to three months.