Rajasthan High Court - Jaipur
Prem Singh Alias Pappu Papiya vs Union Of India (Uoi) Through Inspector, ... on 15 November, 1994
Equivalent citations: 1995CRILJ1122, 1995(2)WLC430
JUDGMENT Rajendra Saxena, J.
1. This appeal has been preferred against the judgment dated 5-2-1993 passed by the learned Sessions Judge, Jaisalmer, whereby he convicted the appellant for the offence under Section 20 of the Narcotic Drugs and Psycho-tropic Substances Act, 1985 (in short the Act) and sentenced him to ten years rigorous imprisonment and a fine of Rs. 1,00,000/- in default to further undergo rigorous imprisonment for two and a half years. However, he acquitted co-accused Alam of the offence under Section 29 of the Act.
2. Succinctly stated the relevant facts are that on 11th February, 1988, on the basis of a credible information, Anil Kumar Jain, Inspector, Customs (Prevention), Jaisalmer effected "Nakabandi" and kept surveillance at Asani Road, Jaisalmer. At about 5.40 p.m. the said Inspector along with two motbirs and member of the Preventive Party noticed Madan Lal Soni coming on a bicycle carrying one cotton bag hanged around his neck. He was taken to the Customs Office, Jaisalmer, where his search was conducted. It is alleged that 470 gms Charas contained in a card-box of Rajnigandha Paan Masala was recovered from his possession for which he had no licence. Indian currency notes worth Rs. 700/- were also recovered from him. It is further alleged that on interrogation, he stated that those Rs. 700/- were the sale proceeds of Charas sold by him. Therefore, the said Inspector seized the said 470 gms. of Charas, Indian currency notes worth Rs. 700/-and the bicycle under Section 110 of the Customs Act, 1962 on a reasonable belief that the said Charas had been imported into India through a route prescribed under Section 8(c) in contravention of the prohibition contained under Section 11 of the said Act read with Section 3(1)(2) of the Import and Export Act, 1947. It is the case of the prosecution that during preliminary inquiry said Madan Lal Soni disclosed that he had purchased the said Charas from appellant Prem Singh @ Pappu @ Papiya. Thereupon, P.W. 6 Trilok Dan Charan, Superintendent, Customs (P), Jaisalmer issued a search warrant dated 11-2-1988 Ex. P. 2 under Section 42 of the Act and under Section 10-J of the Customs Act directing and authorising P.W. 5 Bhag Chand Meena, Inspector, Customs to make a search of appellant's house situated in Kotari Para, Jaisalmer. It is further the case of the prosecution that on the same day at about 6 p.m., P.W. 5 Bhag Chand Meena and P.W. 6 Trilok Dan Charan along with motbirs Prag Singh and Manohar Singh conducted the search of the residential premises of appellant in his presence and recovered 900 gms. of Charas from a bag, which was lying in an open shelf (Aala) in a room. Since the Customs Party did not have the scales and weights with them, it is alleged that the said recovered Charas was handed over to the said motbirs and along with them the appellant was brought to Customs Office, Jaisalmer. P.W. 4, Judgal Kishore Soni was called there. He weighed the said Charas, which comprised of two large and eight small pieces having a total weight of 900 gms. From those pieces, four pieces of 10 gms each were taken as samples, which were sealed. The remaining Charas was also sealed in a separate bag. It is the case of the prosecution that the said contraband Charas, for which the appellant had no licence, was seized under Section 110 of the Customs Act as also under Section 42 of the Act vide seizure memo Ex. P. 1. It is further the case of the prosecution that the appellant voluntarily tendered his statement dated 11-2-88 before P.W. 6 Trilok Dan Charan, which was recorded under Section 108 of the Customs Act, wherein he admitted the recovery of seized 900 gms of Charas from his house and stated that the said Charas was' purchased by him from co-accused Alam five days ago at the rate of Rs. 5000/- per Kg. He further stated that the said Charas was of Pak origin. P.W. 5 Bhag Chand Meena arrested the appellant on 12-2-88 vide arrest memo Ex. P. 5 under Section 104 of the Customs Act and under Section 43 of the Act. On 15-2-88, report Ex. P. 6 pertaining to the said incident was also submitted before the learned Chief Judicial Magistrate, Jaisalmer. A sample of the said Charas was sent by the Superintendent, Customs (P), Jaisalmer to the Chemical Examiner, Central Excise & Customs, Central Revenue Control Laboratory, New Delhi, who after chemical analysis vide his report dated 1 -11 -88 Ex. P. 7 opined that the sample was that of 'Charas' and covered under the N.D.P.S. Act, 1985. It appears that the appellant was once again arrested on 1-3-88 under the provisions of the Act vide arrest memo Ex. P. 4. After investigation, P.W. 5 Bhag Chand Meena submitted a criminal complaint against the appellant and co-accused Alam for the offences punishable under Sections 21, 22, 23 and 29 of the Act before the Magistrate, who committed the case to the learned Sessions Judge.
3. The appellant was charged for the offence under Section 20, while co-accused Alam was charged under Section 29 of the Act. They pleaded not guilty and claimed trial. The prosecution examined as many as six witnesses. The appellant categorically refused all the circumstances appearing against him in the prosecution evidence and asserted that neither any Charas was recovered from his possession nor he had voluntarily given any statement to the Customs authorities. He calimed that his signatures were procured on the statement Ex. P. 3 under coercion. The appellant examined two witnesses in his defence and submitted his ration card and relevant entries thereof in the ration card register of the Supply Department Ex. Dl to Ex. D4. After trial, the learned Sessions Judge acquitted co-accused Alam, but found the appellant guilty for the offence under Section 20 of the Act and sentenced him in the manner indicated above. Hence this appeal.
4. I have heard Sarva Shri S. R. Singhi and Suresh Kumbhat, the learned Counsel for the appellant and Shri U.S. Bhargava the learned Senior Standing Counsel for Union of India and Shri K. L. Thakur the learned Public Prosecutor at length and carefully perused the record of the lower courts.
5. Shri S. R. Singhi has strenuously contended that the findings given by the learned Sessions Judge are self contradictory, that the prosecution has miserably failed to prove beyond reasonable doubt that the said Charas was recovered from appellant's conscious and exclusive possession, because admittedly his mother and brothers also resided in the said house. Shri Singhi has asserted that the learned trial Judge has fallen in error in relying on the alleged confessional statement of the appellant, which was retracted and not corroborated by any other independent evidence. According to him, it is really strange that when the alleged Charaswas recovered on 11-2-88, the Customs authorities did not arrest the appellant on that day. On the other hand, to nail the appellant, the Investigation Officer resorted to the easy mode of some how accosting, forcing arid coercing him to give a statement under Section 108 Customs Act, which was not at all voluntary. According to him, the non-arrest of the appellant immediately after the alleged recovery of the contraband Charas was deliberate with a view to some how secure a confessional statement, which cannot be made isis for conviction for want of any corroboration. Another limb of Shri Singhi's argument is that the prosecution has not adduced even a shred of evidence to prove that the sealed samples of Charas, remained in safe custody in the Mal Khana of the Customs Department and that those were received in the laboratory in the same sealed and intact condition for chemical analysis. Thus, the material link evidence is missing in this case and the learned Sessions Judge has rightly rejected the chemical examination report Ex. P. 7. But, however, relying upon the alleged confessional statement of the appellant the trial Judge has illegally held that the article recovered from the possession of the appellant was Charas, which is not based on any legal evidence.
6. On the other hand, Shri U.S. Bhargava, the learned Senior Standing Counsel for Union of India has vehemently argued that though the motbirs have turned hostile and not supported the prosecution case still then there is no reasons to disbelieve the sworn testimony of P.W. 5 Bhag Chand Meena, Inspector and P.W. 6 Trilok Dan Charan, Superintendent, Customs, who have consistently deposed that 900 gms of Charas was recovered from the house of the appellant in his presence and for which he had no licence. He has claimed that even if it is held that the said house was also inhabited by other members of the appellant's family still than as per his confessional statement, he had bought the said Charas from co-accused Alam and, therefore, it was recovered from his conscious and exclusive possession. According to him the appellant's statement under Section 108 Customs Act was voluntary and admissible in evidence and that the learned trial court has not committed any illegality in convicting the appellant.
7. Shri K. L. Thakur, the learned Public Prosecutor reiterated the reasoning given by the learned trial Judge and supported the impugned judgment.
8. I have bestowed my most anxious and thoughtful consideration to the rival submissions. The learned trial Judge has held that from the evidence recorded in this case it was well established that the house from where the contraband Charas was recovered, was in the joint possession of the appellant and his family members. He has further held that the link evidence was missing to prove that the sealed packets of the represented samples were received in the laboratory intact and, therefore, the chemical examination report Ex. P. 7 was not admissible in evidence to prove that those represented samples contained Charas. However, he had held that the appellant's statement under Section 108, Customs Act was voluntary and admissible in evidence, wherein the appellant had admitted that he had purchased the Charas from co-accused Alam and relying on that statement, has held that the article, which was recovered from appellant's conscious possession was Charas and convicted and sentenced him. He, however, acquitted co-accused Alam on the ground that no recovery had been made from his possession and that there was no corroborative evidence to connect the latter with the crime. The learned trial Judge has, thus, made the alleged confessional statement Ex. P. 3,of the appellant, the sole basis for his conviction.
9. A perusal of search warrant Ex. P. 2 issued by P.W. 6 Trilok Dan Charan, Superintendent, Customs(P), Jaisalmer reveals that it was issued under Section 42 of the Act and under Section 10-J of the Customs Act for making a search of the residential premises of the appellant in Kotari Para, Jaisalmer. P.W. 1 Prag Singh, who was the motbir of the alleged recovery, has categorically stated that in his presence no search was taken, nor any Charas was recovered from appellant's house. He has stated that the Customs authority had procured his signatures on blank paper. He was declared hostile. He has also deposed that in the said house appellant's elder brother, his mother and younger brothers also reside. He has further stated that the appellant was separately residing in his house situated at Tagari Para, Jaisalmer for last four years. P.W. 2 Manohar Singh, who was another motbir of the alleged recovery, has also not supported the prosecution case and was declared hostile. However, he has stated that the house situated in Kotari Para Fort, Jaisalmer is the ancestral house of the appellant, wherein his elder brother, mother and other members reside. P.W. 5 Bhag Chand Meena and P.W. 6 Trilok Dan Charan have not stated that at the time of alleged recovery of Charas besides the appellant no other members of his family was residing in that house. On the other hand, D.W. 1 Manak Chand, I.D.C., D.W.O. Office, Jaisalmer has stated that ration card Ex. D-l was issued on 23-2-82 in favour of Arjun Singh, the elder brother and that in the said ration card the names of appellant Prem Singh, his brother Arjun Singh, Raghunath, Kamal Singh and Gajendra Singh, sister Kumari Ratan and mother Smt. Leela were mentioned. He has proved the entries of the said ration card in Register Ex. D. 2. He has further stated that the said ration card continued till March, 1988 and that thereafter in April, 1988 a new ration card Ex. D.3 was issued in favour of the appellant, as head of family, wherein Arjun Singh's name was not included and that names of Raghunath Singh aged 23 years, Kamal Singh aged 19 years, Mukesh Singh aged 16 years and Smt. Leela Devi aged 53 years were mentioned therein. He has deposed that ration card Ex. D: 3 was issued in favour of appellant on 2-5-88 as per entries Ex. D. 4, D. W. 2 Arjun Singh, the elder brother of the appellant, has stated that previously the appellant used to reside with him in the house situated in Kotari Para, Jaisalmer, but later on appellant Prem Singh started living in their another house situated in Tagariya Para, Jaisalmer. In such circumstances, the learned trial Judge has rightly held that the house from where the alleged recovery was made was in joint possession of the appellant and his other family members. However, relying on appellant's confessional statement Ex. P. 3 to the effect that he had purchased Charas from co-accused Alam and sold 500 gms. of Charas to Madan Lal Soni, the learned trial Judge has held that the article which was recovered from the open shelf inside the room of appellant's house, was in latter's conscious possession. To my mind, the alleged confessional statement dated 11 -2-88 Ex. P. 3 does not appear to be a voluntary statement of the appellant. Moreover, such a statement, which has been retracted by the appellant cannot be made the sole basis for holding that the article recovered from the said house was recovered from the conscious and exclusive possession of the appellant and that the same was Charas within the meaning of Section 2 of the Act.
10. In Megharam v. The State of Rajasthan 1989 Cr LR (Raj) 391, opium was recovered from a jhupa, which was in joint possession of the accused and his brother. It was held that no presumption could be drawn that the accused was in exclusive possession of the said Jhupa and his conviction for the offence under Section 18 of the Act was set aside.
11. In the instant case, the prosecution has palpably failed to prove that the house from where the alleged recovery of Charas was made was in conscious and exclusive possession of the appellant, because there is no independent evidence on this count. On the other hand, from the evidence recorded in this case, it stands firmly established that the said house was in joint possession of appellant and his brothers, sister and mother. Moreover, when the search warrant Ex. P. 2 was issued under Section 42 of the Act and as per statements of P.W. 5 Bhag Chand Meena and P.W. 6 Trilok Dan Charan, 900 gms. of Charas was recovered from the house of the appellant, prima facie an offence under Section 8 read with Section 20 of the Act was made out against him, but strangely enough, they did not arrest the appellant after the said recovery and recorded his alleged statement Ex. P. 3 under Section 108 of the Customs Act. The appellant has retracted from the said statement and stated that his signatures were procured thereon by coercion. The appellant was arrested on 12-2-1988 under Section 104 of the Customs Act and under Section 43 of the Act, vide arrest memo Ex. P. 5. He was remaded by the Chief Judicial Magistrate (Economic Offences), Jaipur and thereafter he was once again arrested under the provisions of the Act on 1-3-88 vide arrest memo Ex. P. 4. In such circumstances, it does not appear that the statement Ex. P. 3. under Section 108, Customs Act was given by the appellant voluntarily and without coercion or duress.
12. In Aherraja Khima v. State of Sourashtra AIR 1956 SC 217 : 1956 Cri LJ 421, the Apex Court has dealt with the aspect of presumption of innocence that is available to an accused person and the situation, wherein the reasonable explanation has been tendered and resorted to that a retracted confession cannot be formed the basis of the conviction. The Supreme Court has dealt with the situation, whereby the validity of confession was in question on the ground that it was not voluntary or that it was obtained by bullying the accused or by holding out an inducement that he will secure advantages by making a particular admission and in such circumstances the Court had pointed out the dangers in relying on such a statement. It is true that since a Customs Officer is not a public officer, a statement made to such an authority is admissible in evidence, but if such a confessional statement is not trustworthy, nor voluntary then such a statement cannot be relied upon. Moreover, such a retracted confessional statement cannot be made the sole basis for conviction. Such a statement can, however, be used for corroboration. The corroboration is required for the purpose of basing a conviction on a statement recorded under Section 108 Customs Act alone must necessarily be independent, which pre-supposes that it is distinct and separate from the statement and admission made by the accused.
13. In State of Maharashtra v. Hasmukh Hargovind Shah 1993 Cr LJ 1953, the Bombay High Court has held that whether a statement, under Section 108 Customs Act has been made voluntarily by the accused needs careful scrutiny, that the court must also consider the possibility of coercion or inducement and that corroboration required for basing conviction on such a statement recorded under Section 108, Customs Act must necessarily be distinct and separate from statements and admissions of the accused.
14. In Ashak Hussain Allah Detha @ Siddique v. Assistant Collector of Customs (P.) Bombay 1990 Cr LJ 2201 (Bom), it has been held that the Investigation Officer may lawfully detain, a suspect for an offence, but detention in custody for interrogation is not authorised by law. The Investigation Officer may detain a person for an offence only. In cases under the N.D.P.S. Act and Customs Act, the prosecution is, no doubt, entitled to rely upon the statements of the accused record during investigation. But they are not entitled to procure statements by coercion, assault or illegal detention and in such circumstances such a statement cannot be termed as voluntary. A retracted confession may form one of the legal basis for conviction if the court is satisfied that it was true and was made voluntarily, but rule of prudence requires that such a confessional statement cannot be made the sole basis for conviction without any corroboration from independent and distinct evidence.
15. In the case on hand, after effecting the recovery of the alleged Charas in pursuance to a search warrant also issued under Section 42 of the N.D.P.S. Act, the natural course for conduct of P. W. 5 Bhagchand Meena and P.W. 6 Trilok Dan Charan would have been to immediately arrest the appellant, because prima facie a case punishable under the N.D.P.S. Act was made out. But they did not do so. On the other hand, they took him to the Customs Office and as a suberfuge, they stage managed the recording of appellant's statement under Section 108 Customs Act, which cannot be termed as his voluntary statement. Therefore, this manipulation and abuse of the legislative sanction for the use of the statement of the accused in this case requires to be censured in strongest terms.
16. In Haroom Haji Abdulla v. State of Maharashtra AIR 1968 SC 832 : 1968 Cri LJ 1017, it has been observed that a retracted confession must be looked upon with a greater concern unless the reasons given having made in the first instance are on the face of them are false. However, once the confession is proved satisfactorily, any admission made therein must satisfactorily be drawn or making of it explained as having proceeded from fear, duress, promise or the like from some one in authority. Therefore, retracted statement is a weak link against the maker and rule of prudence requires that there must be some corroboration from distinct and independent evidence to secure the conviction.
17. In the instant case, the learned trial Judge has disbelieved the statement Ex.P. 3 of the appellant to the effect that he had purchased the said Charas from co-accused Alam for want of any other independent evidence for corroboration and acquitted co-accused Alam. However, without any corroboration from any independent evidence, relying on the same statement Ex.P. 3, he has held that the alleged to have been recovered article was "Charas" and that the same was in the conscious and exclusive possession of the appellant though the house from where the said recovery was made was in joint possession of his other family members. The approach of the learned trial Judge on this count is, therefore, clearly inconsistent and self-contradictory and defective. In my considered opinion, the alleged statement Ex.P. 3 does not appear to be voluntary. Moreover, such a retracted statement has not been corroborated by any distinct, independent reliable evidence. Therefore, the prosecution has completely failed to prove that the alleged to have been recovered article was Charas and that the same was in the conscious and exclusive possession of the appellant.
18. As per statements of P.W. 5 Bhagchand Meena and P.W. 6 Trilok Dan Charan, the Charas was recovered on 11-2-88 and four represented samples taken out from it were duly sealed. However, as per testimony of P.W. 3 Prakash Ram, Incharge, Mal Khana, Customs Department, Jaisalmer, the sealed Charas and the sealed packets of the represented samples were deposited in the Mal Khana on 15-2-88 vide entries Ex. P. 3 A. P.W. 5 Bhagchand Meena and P.W. 6 Trilok Dan Charan have not uttered a single word in whose custody the aforementioned packets remained from 11-2-88 to 15-2-88 and that during the said period the seals thereof were remained intact. Again the prosecution has not examined any person, who had taken the sealed packets of the representative samples to the Central Revenue Control Laboratory, New Delhi, where those were received on 19-2-88. Even the receipt of the said Laboratory has neither been produced, norproved. In the Chemical Examiner's report Ex.P. 7 also there is no mention that the packets of the representative samples were received duly sealed and that their seals were intact. Therefore, the important link to establish the fact that from the time of the recovery of the Charas, the seals of the represented samples remained intact till they reached the Laboratory is conspicuously missing.
19. In Ratanlal v. The State 1966 RLW 451 (DB), it has been emphasized that though the evidence of samples of the incriminating articles reached the hands of the chemical examiner in the same condition in which it was taken by the police officer is formal, yet it cannot be dispensed with and in the absence of such an evidence it is open to take a plea that the chemical examination report of the Public Analyst cannot be read against him.
20. In Ukha Kolhe v. The State of Maharashtra AIR 1963 SC 1531 : 1963 (2) Cri LJ 418, the Apex Court has laid down that it is incumbent upon the prosecution to prove that the seals put on the sample remained intact till the samples reached the hands of the Chemical Examiner and that in absence of such evidence the report of the Public Analyst could not be read in evidence against the accused. The learned trial Judge has held that the Chemical Analyst report Ex.. P. 7 could not be read against the appellant and that on that basis it was not proved that the article alleged to have been recovered from the possession of the appellant was charas, but again relying on the appellant's statement Ex.P. 3, he has held that the article recovered was Charas. I am unable to follow this strange logic. Firstly the confessional statement Ex.P. 3 has been retracted and there is no independent corroborative evidence to prove that the article so recovered was Charas. Whether a particular article is Charas or not can only be proved by scientific evidence i.e. the Chemical Analyst report, but the said cannot be read against the appellant for want of the link evidence. The possibility that the article received may not be Charas and that the appellant erroneously believing the same to be Charas might have made such a statement under coercion or duress of by mistake cannot be ruled out especially when the truthfulness of such a 'Charas was available by scientific evidence and an attempt was made by such scientific evidence, but link evidence was not adduced. Therefore, in such circumstances merely on the basis of the statement of the appellant, it cannot be conclusively held that the article alleged to have been recovered from the house of the appellant was Charas.
21. Hence on the basis of bald and uncorroborated and retracted statement Ex.P. 3 and vague, incomplete, inconsistent and unreliable prosecution evidence, it cannot be held that the alleged recovery of Charas was made from the conscious or exclusive possession of the appellant or that the article so recovered was contraband Charas. Thus, none of the two basic ingredients required to constitute the offence under Section 20 of the Act has been proved against the appellant by any independent and credible evidence. Therefore, the learned trial Judge has committed grave error in convicting and sentencing the appellant.
22. The up shot of the above discussion is that, this appeal is allowed and the conviction and sentence of the appellant are hereby set aside and he is acquitted of the offence under Section 8 read with 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant be set at liberty forthwith, if he is not required in any other case.