Punjab-Haryana High Court
Fatima Bibi W/O Safi Safe vs Inspector Of Customs on 26 March, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Ritu Bahri
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: March 26, 2013
CRA No.11-DB of 2010
Fatima Bibi w/o Safi Safe
...Appellant
Versus
Inspector of Customs
...Respondent
CRA No.22-DB of 2010
Mumtaz D/o Muhammad Siddiqui
...Appellant
Versus
Inspector of Customs
...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Sumit Sharma, Advocate,
for the appellants.
Mr. D.D.Sharma, Advocate,
for the respondent.
HEMANT GUPTA, J.
This order shall dispose of aforementioned two appeals i.e. CRA No.11-DB of 2010 and CRA No.22-DB of 2010 preferred by Fatima Bibi and Mumtaz, the two sisters, respectively against the judgment of conviction and order of sentence dated 08.12.2009 passed by the Special CRA No.11-DB of 2010 & 2 CRA No.22-DB of 2010 Court, Amritsar whereby both the appellants were convicted for the offences punishable under Sections 21 & 23 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten and half years and to pay a fine of Rs.1 lac on both counts. In the event of default of payment of fine, the appellants shall further undergo rigorous imprisonment for a period of one year.
The prosecution case is that on 08.05.2006 at about 2.30/ 3.00 PM, the appellants, who are the Pakistani Nationals, arrived at India in Samjhauta Express at Land Custom Station, Attari Rail Station. After immigration clearance, when both of them reported for customs clearance, they appeared to be nervous and uncomfortable, which raised suspicion in the mind of Satish Chander, Inspector Customs, who was on duty. Thereafter, firstly the baggage of the appellants was checked. Later in the course of personal search carried out by Inspector Ms. Neena Sood, Inspector Customs, 0.450 kgs. of brown powder contained in 11 capsules wrapped in aluminum foil with transparent cello tape concealed in the black under garment and small packets in cherry coloured sandal, worn by Fatima Bibi were recovered, whereas 0.490 kgs. of brown powder contained in 11 capsules wrapped in aluminum foil with transparent cello tape in the black coloured hair band with black ribbon and small polythene packets from the cavity of black coloured sandal worn by Mumtaz was recovered. The contents of brown powder later on found to be heroin on the basis of drug testing kit available with the custom authorities. The heroin and the other wrapping material so recovered were taken into possession after converting CRA No.11-DB of 2010 & 3 CRA No.22-DB of 2010 into separate sealed parcels. After completion of investigations, the present complaint has been filed before the Special Judge constituted under the Act on 03.08.2006.
During trial, the prosecution examined Satish Chander, Inspector Customs as PW-1, K.S.Bajwa, Superintendent Customs as PW-2, Ms. Neena Sood, Inspector Customs as PW-3, Dhiren Senapati as PW-4 and Bhubneshwar Mishra as PW-5.
The incriminating circumstances appearing against both the accused were put to them while recording their statements under Sections 313 Cr.P.C. The appellants pleaded false implication. In defence, they examined DW-1 Muhammed Rashid and DW-2 Ajit Singh, Criminal Ahlmad of Special Judge, Amritsar. After considering the testimonies of all the witnesses, the learned Special Judge found that the charge of possessing contraband (heroin) is proved against the appellants and, therefore, convicted and sentenced in the manner mentioned above.
PW-1 Satish Chander, Inspector Customs, while appearing in the witness box, supported the prosecution case as set out in the complaint in its entirety. He deposed that both the accused namely Fatima Bibi and Mumtaz reported for custom clearance at Counter No.1-A at Land Customs Station, Attari Rail after completion of immigration formalities along with their baggage consisting of five packages. When they reported for customs clearance, they appeared to be nervous and uncomfortable. Shri K.S.Bajwa, Superintendent Customs was supervising the clearance of the passengers. Two independent witnesses namely Jaspal and Satnam Singh were called CRA No.11-DB of 2010 & 4 CRA No.22-DB of 2010 immediately before conducting the search. On their arrival, Shri K.S.Bajwa disclosed his identity to the accused and told them that it is suspected that they were carrying some narcotic substance. Thereafter, the search of the baggage was done in the presence of independent witnesses. On search of the baggage, 228 meters of ladies suit cloth, 50 pieces of dupattas, two dinner sets and 10 pair of chappals were recovered from Fatima Bibi. Similarly, cloth etc. were recovered from Mumtaz. Both the accused were again asked to declare if they are carrying any contraband, but they stated that they are not carrying any such substance. He apprised both the accused of their legal right that whether they wanted to get their personal search in the presence of the nearest Magistrate or a Gazetted Officer. Both the accused opted to be searched in the presence of a Gazetted Officer. He proved intimation-cum-option and consent memo Exs.P1 and P2, which bears his signatures. Since both the accused were females, a lady officer namely Neena Sood, Inspector Customs, who was performing her duties at Land Customs Station, Attari Rail was called. Thereafter, Neena Sood, Inspector Customs along with Devi - an independent female witness, took both the accused to the x-ray room for personal search. During the personal search of Fatima Bibi, 11 capsules wrapped in aluminum foil with transparent cello tape were found in black panty worn by her and on tearing the cherry colour sandal worn by her, some small polythene packets containing brown powder was also found concealed. During the personal search of Mumtaz, 11 capsules wrapped in aluminum foil with transparent cello tape were found in the black colour hair band worn by her on her hair with black ribbon and on tearing black colour sandal worn by her, some CRA No.11-DB of 2010 & 5 CRA No.22-DB of 2010 small polythene packets containing brown powder in the cavity of sandals were also found concealed. The brownish powder recovered from Fatima Bibi in her panty and sandal was made homogenous and wrapped in a big polythene marked as 'A'. The emptied packing materials of the capsules i.e. aluminum foil cello tape and emptied polythene packets along with cherry coloured sandals were put in another polythene envelop marked 'B'. Similarly, the brownish powder recovered from Mumtaz in her sandal and hair band was made homogenous and wrapped in a big polythene marked as 'D'. The emptied packing materials of the capsules i.e. aluminum foil cello tape and emptied polythene packets along with sandals were put in another polythene envelop marked 'E'. When weighed, the brown powder recovered from Fatima Bibi and Mumtaz was found to be 0.450 kgs. and 0.490 kgs. respectively. Three samples of 5 gms each were drawn from polythene envelopes marked 'A' and 'D' i.e. the homogenous mixture of brown powder and converted into separate small polythene pouches and sealed with seal No.152 of Custom Division, Amritsar. Packing material was also sealed separately with the same seal. He also proved Panchnama Ex.P5 bearing his signatures and that of Shri K.J.Bajwa, Superintendant as well as the signature/thumb impression of the accused. He also proved the recovery-cum-seizure memo Ex.P6, which also bears his signatures and that of the witnesses and signature/thumb impression of the accused. He deposed that seal after use was handed over to the competent authority. The witness also proved the statements of the accused recorded under Section 67 of the Act in the case of Fatima Bibi as Ex P-7 whereas, the statement Ex.P- 8 is recorded under Section 67 of the Act and Section 108 of the Customs CRA No.11-DB of 2010 & 6 CRA No.22-DB of 2010 Act of Mumtaz. The copies of these statements were handed over to the appellants as per endorsement on these statements. He further deposed that both the accused were produced before the Duty Magistrate on 09.05.2006 along with the case property, who remanded the accused to custom custody till 10.05.2006 for effecting recovery of source of the contraband. On 10.05.2006, supplementary statements of both the accused were recorded under Section 67 of the Act and under Section 108 of the Customs Act, 1962. In their statements, both of them have admitted that these things were handed over to them at Lahore Railway Station by Rasheed by saying that these are (pearls) 'moti', which were to be handed over to Rasheed on reaching Delhi and that they did this act for money. On the same day, all the sample parcels and bulk parcels were deposited with Bhubneshwar Mishra (PW 5), Incharge Malkhana at Custom House Malkhana Amritsar vide inventories Ex.P17 and Ex.P18, which bear his signatures. He deposed that two representative samples i.e. one pertaining to each of the accused along with test memo and authority letter were sent to the Central Revenue Control Laboratory, Delhi through Dhiren Senapati (PW 4), Inspector for chemical analysis on 16.05.2006.
In his cross-examination, PW-1 Satish Chander stated that Rashida Bibi was also apprehended on that day, but she was on another counter and that the accused were the last passengers, who arrived at his counter. He denied the suggestion that no recovery was affected or false recovery has been planted against them. He also denied the suggestion that no voluntary statement was made by the accused and their thumb impressions or signatures were procured on blank papers. CRA No.11-DB of 2010 & 7 CRA No.22-DB of 2010 PW-2 K.S.Bajwa, Superintendent Customs has also deposed in the sequence of events supporting the version as stated by PW-1 Satish Chander, Inspector Customs. He deposed that before recording the statements of the accused they were made aware that the statements can be used in the Court at any subsequent stage. In his cross-examination, he stated that the accused were perplexed and that gave suspicion against them.
PW-3 Ms. Neena Sood is the witness, who carried out the personal search of the accused-appellants and recovered 11 capsules wrapped in aluminum foil with transparent cello tape in the black panty and small packets from the false cavities of sandals, which were worn by Fatima Bibi and 11 capsules wrapped in aluminum foil with transparent cello tape in the black coloured hair band with black ribbon and small polythene packets from the false cavity of black coloured sandal worn by Mumtaz. She proved the personal search memo as Exs.P3 and P4 and deposed that Fatima Bibi put her thumb impression and Mumtaz put her signatures on such memos. In her cross-examination, she stated that personal search was conducted at 8.00 PM. She denied the suggestion that the signature/thumb impression of the accused were procured on blank papers.
PW-4 Dhiren Senapati, Inspector and PW-5 Bhuvneshwar Mishra, Inspector are the witnesses, who deposed regarding the safe custody of the samples from the time it was handed over to them on 10.05.2006 till the time the same were delivered to the Laboratory for chemical examination.
Learned counsel for the appellants has vehemently argued: CRA No.11-DB of 2010 & 8
CRA No.22-DB of 2010
(i) That the search memos Exs.P1 & P2 are based upon the belief of the Inspector that the appellants are carrying narcotics. Such belief was required to be recorded in writing before starting any process of search in terms of Section 42 of the Act and communicated to the superior officers;
(ii) That the option for search by a Gazetted Officer or by a Magistrate was in a language not known to the appellants i.e. Hindi, therefore, the valuable right of the appellants conferred under Section 50 of the Act has been frustrated. The provisions of Section 50 of the Act have to be strictly complied with. Instead of merely informing that the appellants have a right for search by a Gazetted Officer or a Magistrate, the appellants should have been taken to the nearest Magistrate for conducting personal search, as it is the only right available with the accused against the prosecution agency. Reliance was placed upon Vijaysinh Chandubha Jadeja Vs. State of Gujarat AIR 2011 SC 77 and Narcotics Control Bureau Vs. Sukh Dev Raj Sodhi (2011) 6 SCC 392; &
(iii) That as per Ex.D-1 i.e. the statement of PW-4 Faqir Singh, Superintendent Customs, LCS Attari Rail, Amritsar recorded in Sessions Case No.122 of 2006 titled 'Inspector of Customs Vs. Smt. Rashida Bibi', Neena Sood Inspector was the person, who carried out CRA No.11-DB of 2010 & 9 CRA No.22-DB of 2010 the personal search of Rashida Bibi on 08.05.2006 as well. Therefore, the presence of Neena Sood for the purpose of physical search in the present case is unbelievable. It is also pointed out that the name of Neena Sood does not find mention in the list of Officers, who were associated by the prosecution in the present case. Therefore, the entire process of search is doubtful.
Reliance is placed upon a Division Bench judgment of this Court in Saudagar Singh @ Sagu Vs. The State of Punjab 1974 PLR 57 and the order passed by the Rajasthan High Court in Civil Regular Second Appeal No.70 of 1966 titled 'Firm Ramchand Bhagirath & others Vs. Ganpat Ram' decided on 18.12.1972.
(iv) That the prosecution has not examined any of the independent witness either to the recovery or to the personal search. In the absence of the examination of the independent witness, the prosecution case is wholly unreliable.
(v) It is contended that Devi, the alleged witness of the personal search and recovery, is a stock witness of the prosecution.
(vi) Referring to Exs.P17 and P18, it is contended that the case property was deposited in the Malkhana on 10.05.2006, therefore, the Custom Officers had the CRA No.11-DB of 2010 & 10 CRA No.22-DB of 2010 opportunity to tamper with the sample during the period it was available with him.
(vii) It is further pointed out that a perusal of the report of the Central Revenue Control Laboratory, Delhi would show that the samples were weighing 4.5 grams and 3.6 grams as against the weight of the samples as 5 grams each.
Therefore, there is discrepancy in the weight of the samples seized and the samples received by the Laboratory, making the prosecution case unbelievable.
(viii) It is also argued that the statements recorded by the Custom Officer are not admissible in evidence and the conviction on the basis of such statement is not sustainable. Reliance is placed upon Noor Aga Vs. State of Punjab (2008) 16 SCC 417.
We have heard learned counsel for the parties and find no merit in the present appeals.
In respect of first argument, we may notice that the Customs Authorities had no prior information to the effect that the appellants are carrying contraband. It was the conduct of the appellants before the Customs Authorities, which raised suspicion and made Customs Officers to inspect their baggage and later to carry out the personal search in discharge of their official duties. The suspicion arose when the appellants were waiting for customs clearance and when the senior officials were present at the clearance counter. The information was sent by PW-1 Satish Chander to CRA No.11-DB of 2010 & 11 CRA No.22-DB of 2010 his superiors within 72 hours i.e. on 11.05.2006 in compliance of sub- section (2) of Section 42 of the Act vide Ex.P16. But that part, since the suspicion arose against the appellants during the customs clearance and that search was not of any building or conveyance, therefore, the information in writing was not required to be sent to the Superior Officers in terms of Section 42 of the Act. In terms of Section 42 of the Act, an Officer Superior in rank to a Peon, Sepoy or Constable in the Department of Customs is empowered to search any building, conveyance or place. In terms of clause
(c) of Section 42(1), such officer has power to seize such drug or substance and all materials, if he reason to believe that such process may furnish evidence of the commission of any offence punishable under this Act. Sub- section 2 of Section 42 contemplates that where an Officer takes down any information in writing under sub-section (1) or records grounds for his belief, he shall within seventy two hours send a copy thereof to his immediate official superior.
The Constitution Bench in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539 examined the provisions of Sections 42, 43 & 50 of the Act. It has been held that Section 42 of the Act requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure. Section 42 pertains to search of "building, conveyance or enclosed place". Section 43 does not contain any such provision. The empowered Officer has the power of seizure of the article etc. and arrest of a person, who is found to be in possession of any narcotic drug or psychotropic substance in a "public place" where such possession appears to him to be CRA No.11-DB of 2010 & 12 CRA No.22-DB of 2010 unlawful. The Court noticed that the change in the manner of police investigation with the advent of modern technologies and that it may not be possible all the time to record the information, which is collected through mobile phones communication in the register/records kept for those purposes in the police station or the respective offices of the authorized officials in the Act.
In the present case, the suspicion arose to the empowered officers in a public place when the appellants were waiting for customs clearance. Therefore, Section 42 of the Act is not is applicable, but Section 43 of the Act. Such suspicion was in the presence of Superior Officer, therefore, it cannot be said that there is any violation of provisions of Section 43 of the Act.
In respect of second argument, Sub-section (1) of Section 50 of the Act contemplates that when any officer is about to search any person under the provisions of Sections 41, 42 or 43, he shall take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. Sub- section (5) contemplates that when an officer has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate, then he can record reasons for such believe.
The notice served upon the appellants before conducting personal search is on a printed form, but contains a correction with hand to the effect that 'the Officer beliefs that the appellants had narcotics' after CRA No.11-DB of 2010 & 13 CRA No.22-DB of 2010 scoring off the words 'receipt of reliable information'. On translation, the relevant portion of notice Ex.P1 reads as under:
"......I believe that you have narcotics for which personal search is necessary. You can seek search of yourself before any Magistrate or Gazetted Officer, which is your legal right under Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
As such, you are informed about your legal rights. Please tell that before whom you want yourself to be searched, Magistrate or Gazetted Officer."
As per the endorsement thereon, both the appellants opted for search from Gazetted Officer. It was in furtherance of the option given by the appellants, Fatima Bibi and Mumtaz were searched by PW-3 Neena Sood in the x-ray room under the supervision of PW-2 K.S.Bajwa, a Gazetted Officer, who was supervising the clearance of the passengers.
The argument that notice under Section 50 of the Act was in a language not known to the appellants i.e. Hindi, is untenable. Learned counsel for the appellants admitted that both the appellants are illiterate though one of them knows that how to sign in Urdu. Spoken language in this part of Punjab and in the Punjab of Pakistan is substantially the same i.e. Punjabi. The contents of the notice were read over to the appellants and made to understand in the language known to them. Both the accused- appellants have put their impressions in token of having understood the same and admitting it to be correct. In fact, no question was asked from any of the prosecution witness that the contents of the notices were not made known to them. Therefore, the argument raised by the learned counsel for CRA No.11-DB of 2010 & 14 CRA No.22-DB of 2010 the appellants that the notice under Section 50 of the Act was not valid, is not sustainable in law.
In terms of Constitutional Bench judgment in Vijaysinh Chandubha Jadeja's case (supra) requirement of Section 50 is mandatory and requires strict compliance, but it is a question of fact in each case, whether or not procedure prescribed has been followed. Though in Sukh Dev Raj Sodhi's case (supra), the Bench has observed that endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate, but that was a case where the judgment of the High Court was maintained, when a finding was returned that the accused was not informed of his right to be searched either in the presence of a Gazetted Officer or before a Magistrate.
In State of Haryana Vs. Mai Ram (2008) 8 SCC 292, in an appeal arising out of the recovery of opium at railway station, the Supreme Court found that Section 50 of the Act applies only in case of personal search of a person and does not extend to search of a vehicle or a container or a bag or premises. The Court observed as under:
"14. ....A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (see Kalema Tumba vs. State of Maharashtra (1998) 8 SCC 257, State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and Gurbax Singh Vs. State of Haryana (2001) 3 SCC 28).
15. The language of Section 50 is implicitly (sic explicitly) clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh (2001) 3 SCC 28. A similar question as examined in Madan Lal Vs. State of H.P. (2003) 7 SCC 465.CRA No.11-DB of 2010 & 15
CRA No.22-DB of 2010
16. Above being the position, the finding regarding non-compliance with Section 50 of the Act is also without any substance."
In the present case, the accused were apprised of their legal rights and also offered to be searched either by a Gazetted Officer or a Magistrate. Both the accused opted for search by a Gazetted Officer. Therefore, Section 50 of the Act has been complied with in its full rigour. We do not find any procedural irregularity in making the accused aware of their rights and to seek opinion of the accused before search of their person.
In respect of third argument, Ex.D1 is the statement of PW-4 Faqir Singh, Superintendent Customs, LCS, Attari Rail, Amritsar recorded in another case initiated by the Customs Authorities against Smt. Rashida Bibi, mother of the present appellants. Faqir Singh was not the prosecution witness in the presence case nor was examined by the defence, as their own witness. In terms of Section 33 of the India Evidence Act, 1872 the testimony of a witness in the earlier judicial proceedings is admissible in evidence on satisfaction of the conditions mentioned therein i.e. (i) when the witness is dead; (iii) cannot be found; (iii) is incapable of giving evidence; (iv) is kept out of the way by the adverse party; or (v) his presence cannot be obtained without an amount of delay or expense. Even after satisfaction of such conditions, the proceedings have to be between the same parties or their representatives in interest. As per Explanation, a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused. None of the conditions mentioned in Section 33 of the Indian Evidence Act, 1872 are satisfied by the defence to make the statement admissible or relevant in the present case. There is no evidence CRA No.11-DB of 2010 & 16 CRA No.22-DB of 2010 led by the defence that PW-4 Faqir Singh in the earlier proceedings, is not available as per the stipulations in Section 33 of the Indian Evidence Act, 1872 nor the previous proceedings were between the same parties inasmuch as the accused were not the same.
In V.M.Mathew Vs. V.S.Sharma (1995) 6 SCC 122, the Supreme Court held as under:
"10. The Division Bench of the Rajasthan High Court has, according to us, rightly considered in Poonamchand Vs. Motilal AIR 1955 Raj 179 the effect of the second proviso and held that the adverse party in the previous proceedings would be referable to the party against whom the evidence was adduced and had right and opportunity to cross-examine the witness, and did cross-examine the witness. The Division Bench of the Calcutta High Court and the Single Judge of the Madras High Court have not considered the effect of the second proviso in proper perspective in the above-noted cases. Sarkar on Evidence (14th Edn.) at page 656 states in this behalf that:
" 'Adverse party' in the first proceeding is used to distinguish that party from 'the party who calls the witness'. A party calling a witness does not become an 'adverse party' because that witness's evidence is hostile to him. The proviso obviously protects the right of the 'adverse party in the first proceeding' and not the right of the person who produces and examines the witness."
The judgments referred to by the learned counsel for the appellants are clearly distinguishable and have no applicability in the facts of the present case. In Saudagar Singh @ Sagu's case (supra), the maker of the statement had died, therefore, the statement made in the previous proceedings was admissible in terms of Section 33 of the Evidence Act. In Ganpat Ram's case (supra), one of the defendants admitted the statement CRA No.11-DB of 2010 & 17 CRA No.22-DB of 2010 made by him in the criminal case. Therefore, both the judgments have no applicability to the facts of the present case.
The next argument that no independent witness has been examined by the prosecution agency, is again devoid of merit. The joining of an independent witness is a rule of prudence. Once the prosecution is able to prove the process of recovery of contraband from the appellants from the testimonies of the official witnesses, it cannot be said that non- examination of the independent witnesses is fatal to the prosecution case. The evidence of the official witnesses is required to be examined with more care and caution. On the careful analysis of the statements of PW-1 Satish Chander, Inspector Customs PW-2 K.S.Bajwa, Superintendent Customs and PW-3 Neena Sood, Inspector Customs, we do not find that there is any contradiction or any other infirmity in proving the case of the prosecution.
In Appabhai & another Vs. State of Gujarat 1988 (Supp.) SCC 241, the Supreme Court observed that the prosecution case cannot be thrown out or doubted on the ground that independent witnesses have not been joined. It was observed that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere. The Court observed as under:
"11. .....The court, therefore, instead of a doubting the prosecution case for want of independent witness must consider the broad spectrum of the CRA No.11-DB of 2010 & 18 CRA No.22-DB of 2010 prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused....."
In Mai Ram's case (supra), the Supreme Court also held that no material was brought on record by the defence to discredit the evidence of the official witnesses. The question is; whether the evidence of the official witnesses suffers from any infirmity. The Court observed as under:
"11. The High Court was clearly in error in holding that the reason for the suspicion was not recorded. So far as the examination of only official witness is concerned, it is to be noted that the only independent witness who was examined to speak about the seizure did not support the prosecution version. No material was brought on record by the defence to discredit the evidence of the official witnesses. The ultimate question is whether the evidence of the official witness suffers from any infirmity. In the instant case nothing of the nature could be pointed out. Further, PWs 1 and 2 categorically stated that no other person was willing to depose as witness. Therefore, the High Court was clearly in error in holding that the prosecution version became vulnerable for non-examination of persons who were not official witnesses."
In respect of next argument, we do not find that Devi is the stock witness. Mere fact that she was associated as a witness in the present recovery proceedings as well as the recovery proceedings against the mother of the appellants, cannot be said to be fatal to the prosecution case. However, Devi was given up as won over by the accused on 19.02.2007 by the counsel for the complainant. The prosecution witnesses have categorically deposed the manner of search, recovery and the procedure. There is no motive for any of them to implicate the appellants. The statement of such witnesses is proved to be of reliable and trust worthy. There is no reason not to seek corroboration from the independent witnesses. The evidence of the prosecution witnesses is creditworthy and inspires confidence in the mind of the Court. CRA No.11-DB of 2010 & 19 CRA No.22-DB of 2010 The argument raised by the learned counsel for the appellants that the samples were tampered with is without any basis. Handing over of seal to the third person is a matter of prudence and not of law. PW-1 Satish Chander, Inspector Customs, while appearing in the witness-box, has categorically stated that seal was handed over to the competent authority after use. The samples were produced before the Magistrate on 9.4.2006, the very next day of search and recovery. Such samples were counter signed by Magistrate. A Full Bench of this Court in Piara Singh Vs. The State of Punjab (1982) 84 PLR 244 while considering the provisions of the Punjab Excise Act, 1914 held that there is neither a statutory requirement nor a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith. It was, thus, concluded that non-production of such a witness cannot by itself affect the merits of the trial. Still further, the report of the Central Revenues Control Laboratory, Delhi (Ex.P23) is to the effect that the samples were received in seal intact condition. Therefore, there is no factual or legal basis to infer that the seal on the samples was tinkered with.
None of the prosecution witnesses have been cross-examined in respect of tinkering of the contents of the samples. Since no suggestion has been put to the prosecution witnesses in respect of sending of samples or its possibility of tinkering, the argument raised at this stage is without any factual basis. Therefore, there is no reason to raise suspicion in respect of tinkering of the samples.
We also do not find any merit in the argument that samples of 5 grams each were taken, but when the same were weighed in the Laboratory, CRA No.11-DB of 2010 & 20 CRA No.22-DB of 2010 the same were found to be 4.5 grams and 3.6 grams, thus, there is discrepancy in the weight of the samples seized and the samples received by the Laboratory. The samples were counter-signed by the Magistrate on 09.05.2006 and the same were deposited in the Malkhana of the Customs on 10.05.2006 and sent to the Laboratory for testing purposes on 16.05.2006 and received by the Laboratory on 17.05.2006. The report of the Central Revenues Control Laboratory, Delhi (Ex.P23) is that two sample packets marked as C-1 and F-1 were received in seal intact condition. Such minor variation in a small quantity of sample can be due to various reasons including of inaccuracy of weighing scales. The difference in weight is not of such nature which may cause doubt on the prosecution case. The fact remains that on chemical examination, both the parcels answer positive test for diacetyl morphine (heroin). Therefore, the minor difference in the weight of samples is not sufficient to doubt the prosecution case.
The last argument raised that the statements of the appellants recorded by the Customs Officer is not admissible in evidence and the appellants have retracted from such statements at the earliest opportunity is again not tenable. A Constitution Bench in a judgment reported as Ramesh Chandra Mehta Vs. The State of W.B. AIR 1970 SC 940 has held that the Customs Officer under the Customs Act, 1962 is not a Police Officer. It was observed as under:
"24. In certain matters the Customs Act of 1962 differs from the Sea Customs Act of 1878. For instance, under the Sea Customs Act search of any place could not be made by a Customs Officer of his own accord; he had to apply for and obtain a search warrant from a Magistrate. Under Section 105 of the Customs Act, 1962, it is open to the Assistant Collector of Customs himself to issue a search warrant. A proper officer is also CRA No.11-DB of 2010 & 21 CRA No.22-DB of 2010 entitled under that Act to stop and search conveyance; he is entitled to release a person on bail, and for that purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is. But these additional powers with which the Customs Officer is invested under the Act of 1962 do not, in our judgment, make him a police officer within the meaning of Section 25 of the Evidence Act. He is, it is true, invested with the powers of an officer-in-charge of a police station for the purpose of releasing any person on bail or otherwise. The expression 'or otherwise' does not confer upon him the power to lodge a report before a Magistrate under Section 173 of the Code of Criminal Procedure. Power to grant bail, power to collect evidence, and power to search premise or conveyances without recourse to a Magistrate, do not make him an officer- in-charge of a police station. Proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. His orders are appealable and are subject also to the revisional jurisdiction of the Central Board of Revenue and may be carried to the Central Government. Powers are conferred upon him primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue."
Following the said judgment and while considering the question; whether the officers of the Department of Revenue Intelligence invested with powers of officer-in-charge of police station under Section 53 of the Act are police officers within the meaning of Section 25 of the Evidence Act, the Hon'ble Supreme Court in State of Gujarat Vs. Anirudhsing (1997) 6 SCC 514, held that such officers were not the police officials within the meaning of Section 25 of the Evidence Act. Therefore, the confessional statement recorded by such officers in the course of investigation of the persons accused of an offence under the Act, is admissible in evidence as against him. It was held to the following effect:
"16. In Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 the question arose whether the officers of the Department of Revenue Intelligence (DRI) invested with powers of officer-in-charge of police station under Section 53 of the Narcotic Drugs and Psychotropic CRA No.11-DB of 2010 & 22 CRA No.22-DB of 2010 Substances Act, 1985 are police officers within the meaning of Section 25 and whether the confession made to them is inadmissible in evidence. In this behalf, this Court had held that the officers of the Revenue Department, who have been invested with the powers given to the in- charge of the police station were not police officers within the meaning of Section 25 of the Evidence Act and, therefore, the confessional statement recorded by such officers in the course of investigation of the persons accused of an offence under the Act, is admissible in evidence as against him. Officer appointed under Section 53, other than a police officer is not entitled to exercise "all the powers" under Chapter XII of the Cr.P.C. including the power to submit a charge-sheet under Section 173 Cr.P.C."
Similar view was reiterated in Union of India Vs. Padam Narain Aggarwal (2008) 13 SCC 305, when it was held to the following effect:
"39. ....This Section does not contemplate magisterial intervention. The power is exercised by a gazetted officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. The underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident.
40. As held by the Constitution Bench of this Court in Ramesh Chandra Mehta v. State of W.B. AIR 1970 SC 940, a person called upon to make a statement before the Customs Authorities cannot be said to be an accused of an offence. It is, therefore, clear that if a person is called upon to make a statement under Section 108 of the Act and summons is issued for the said purpose, he is bound to comply with such direction. This view has been reiterated in several cases thereafter.
41. In CCE v. Duncan Agro Industries Ltd. (2000) 7 SCC 53 this Court stated: (SCC p. 58, para 11) CRA No.11-DB of 2010 & 23 CRA No.22-DB of 2010
"11. Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said section is intended to be exercised by a gazetted officer of the Customs Department. Sub-section (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the Magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost." (emphasis supplied) It is thus clear that statements recorded under Section 108 of the Act are distinct and different from statements recorded by the police officers during the course of investigation under the Code." Recently in a judgment reported as Ram Singh Vs. Central Bureau of Narcotics (2011) 11 SCC 347, the Supreme Court held to the following effect:
"14. From what has been observed above, the officers vested with the powers of investigation under the Act are not police officers and, therefore, the confessions recorded by such officers are admissible in evidence. Therefore, the question posed at the outset is answered in the affirmative and it is held that officers of the Central Bureau of Narcotics are not police officers within the meaning of Sections 25 and 26 of the Evidence Act and, hence, confessions made before them are admissible in evidence. In view of the aforesaid there is no escape from the conclusion that the confessions made by the appellant before PW 6 Jagdish Mawal and PW 8 Mahaveer Singh are admissible in evidence and cannot be thrown out of consideration.
xxx xxx
CRA No.11-DB of 2010 & 24
CRA No.22-DB of 2010
16. A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the court requires some corroboration but as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act.
17. Bearing in mind the principles aforesaid, now, we proceed to consider the facts of the present case. The appellant's first confession was recorded by PW 6 Jagdish Mawal on 19-7-1997 and he was produced before the court on 20-7-1997 and he made no grievance in regard to the confession recorded. Another confession was recorded on 20-7-1997 and, thereafter, he was produced before the Special Judge on 21-7-1997 and a copy of the police diary was handed over to him. This obviously would have contained the confessions made by him. No complaint about the same was made then also. Thereafter the appellant was produced before the court several times but he never retracted his confession. The appellant retracted the confession made by him for the first time in his statement under Section 313 of the Code of Criminal Procedure.
18. In our opinion, when an accused is made aware of the confession made by him and he does not make complaint within a reasonable time, the same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case the appellant was produced before the court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only when his statement was recorded under Section 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of saying that his signatures were obtained on blank pages. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction.
19. The view which we have taken above finds support from the judgment of this Court in M. Prabhulal v. Directorate of Revenue Intelligence (2003) 8 SCC 449, in which it has been held as follows: (SCC p. 452, para
5) CRA No.11-DB of 2010 & 25 CRA No.22-DB of 2010 "5. It has been established that the Customs Office was about 20 km from the place where the truck and the car were apprehended.
Having regard to the large quantity of the heroin, the said vehicles with Accused 2, 3 and 6 were brought to the Customs Office. Further, Accused 1 and 2 did not know Tamil. A Hindi-knowing officer had to be arranged. There was, under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the appellants' conviction." (emphasis supplied)
20. The same view has been reiterated by this Court in Kanhaiyalal (2008) 4 SCC 668 in which it has been observed as follows: (SCC p. 682, para 47) "47. ... Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant."
In Noor Aga's case (supra) relied upon by the learned counsel for the appellants, the Court has held that the enquiry contemplated under Section 108 is for the purpose of the Customs Act, 1962 and not for the purpose of convicting an accused under any other statute. However, the CRA No.11-DB of 2010 & 26 CRA No.22-DB of 2010 statements recorded by an empowered Customs Officer, in the present case, are under Section 67 of the Act, which is analogous to Section 108 of the Customs Act. Once the accused have made statements to an empowered Officer in respect of investigation carried out under the Act, who is not a Police Officer, such statements are relevant for determining the commission of offence by the said accused.
The statements of the accused were recorded on 09.04.2006, as the first part came to be completed around 12.30 mid night. The accused were produced before the Magistrate on 09.04.2006. But no complaint was made before the Magistrate that their statements have been recorded by force or they have been made to sign on blank papers. During customs remand, supplementary statements have been recorded on 10.04.2006. But again there is no evidence that at any point of time before the Magistrate, the accused have sought to retract from the statements made. The suggestion put to the prosecution witnesses i.e. PW-1 Satish Chander, Inspector Customs, PW-2 K.S.Bajwa, Superintendent Customs and PW-3 Ms. Neena Sood, Inspector Customs is that signatures/thumb impressions of the accused were obtained on blank papers. A perusal of the record shows that placement of signatures and thumb impressions cannot be on blank papers, as either the same are appearing at the end of the statements and in the margin where there is no written material. Keeping in view the fact that the appellants have not sought to retract their confessions at any point of time before their statements under Section 313 Cr.P.C. were recorded, the statements recorded by an empowered Officer are relevant to determine the commission of offence.
CRA No.11-DB of 2010 & 27CRA No.22-DB of 2010 Still further, we find that the Constitutional Bench judgment in Ramesh Chandra Mehta's case (supra) was not brought to the notice of the Court in Noor Aga's case (supra). The statement recorded by an empowered Officer is not inadmissible in evidence in view of Article 20(3) of the Constitution. Since such statement is not inadmissible, the same is relevant for determining the commission of offence by an accused.
In another judgment reported as Pavunny Vs. Assistant Collector 1997 (3) SCC 721, the Supreme Court held that confession recorded under the Customs Act can form sole basis for conviction in criminal trial for offences under Indian Penal Code. The Court held that if it is retracted confession, it must first be tested; whether it is voluntary and truthful inculpating the accused in commission of the crime. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession and that burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other persons. The Court relying upon its earlier judgment reported as Bhagwan Singh Vs. State of Punjab AIR 1952 SC 214, observed as under:
"21. The question then is: whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must CRA No.11-DB of 2010 & 28 CRA No.22-DB of 2010 first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh V/s. State of Punjab [AIR 1952 SC 214]."
A perusal of the statement recorded by the Customs Officer on 09.05.2006 shows that appellant Fatima Bibi had taken a stand that it was not in her knowledge that by whom this brown coloured powder in question was handed over at Lahore Rail and to whom it was to be delivered at New Delhi. Only Rasheed is having all such information and that she was allured by Rasheed for sake of money for doing this illegal work. Similar is the statement of Mumtaz. The recording of the statements concluded at 30 minutes past mid-night, thereafter, the appellants were produced before the Magistrate latter in the day. In the supplementary statements recorded on 10.05.2006, appellant Fatima Bibi has stated that her mother Rashidan was known to Rasheed, who belongs to our city Wazirabad and now resides at Lahore. Rasheed prepared her, her sister Mumtaz and her mother Rashidan as Sawari (carrier). In defence, the appellants have examined the said Rasheed as DW-1, who was lodged in Central Jail, Amritsar. In his cross- examination, DW-1 Rasheed stated to the following effect: CRA No.11-DB of 2010 & 29
CRA No.22-DB of 2010 ".... I take the responsibility of heroin allegedly recovered from Fatima Bibi, Mumtaj as it was given by me. It is incorrect to suggest that I am deposing falsely to save Fatima Bibi and Mumtaj."
The examination of Rasheed as a defence witness substantially corroborates their confessional statements recorded by the Customs Officers. Rasheed unequivocally has taken all the responsibility of the heroin recovered from the appellants. It is impossible to imagine that the appellants were not aware of the contents of the contraband, as the same was concealed by one of the appellants in her under-garment and by another in the black colour hair band worn on hair with black ribbon as well as in the cavity of sandals worn by both of them. Such ignorance of contraband, thus, cannot be feigned.
Even though the confessional statements made during the course of investigations under Section 67 of the Act to an empowered Officer are relevant, however, the present is a case, where the prosecution is not solely relying upon the confessional statements made by the appellants, but also the search and seizure of the contraband from their person during the course of personal search at the time of customs clearance.
In the light of provisions of law, we find that the statements of the appellants recorded by the Customs Officer have not been retracted at the earliest opportunity. Apart from the suggestion that signatures/thumb impressions off the appellants have been obtained on blank papers, there is no attending circumstance or material to infer that long hand-written statements could be written on blank papers. There is endorsement on the statements that the copy has been handed over. It is not asserted by the CRA No.11-DB of 2010 & 30 CRA No.22-DB of 2010 appellants in their statements recorded under Section 313 Cr.P.C. that no such copy was given to them.
In view of the above discussion, we find that the judgment of conviction and order of sentence rendered by the Special Court is based on the correct appreciation of evidence, as the prosecution has completed the chain of events, which point out to the guilt of the accused. Therefore, the appellants have been rightly convicted and sentenced by the learned trial Court for the offences punishable under Sections 21 & 23 of the Act.
Consequently, both the appeals are dismissed.
(HEMANT GUPTA)
JUDGE
March 26, 2013 (RITU BAHRI)
Vimal JUDGE