Bombay High Court
Adeoye Olayiwola Adekunle vs D.K. Bhambri & Anr. on 7 February, 2000
Author: N. V. Dabholkar
Bench: N.V. Dabholkar
JUDGMENT N. V. Dabholkar, J.
1. By the appeal appellant/original accused challenges the judgment delivered on 17th June. 1996 by Special Judge for N. D. P. S. cases. Greater Bombay in Special Case No. 462 of 1991.
The Petitioner is held guilty for possession of heroin, offence under Section 21 r/w 8(c) of the N. D. P. S. Act, 1985 and is sentenced to suffer R. 1. for 10 years, fine of Rs. 1 lac i/d further R. I. for one year. He is also held guilty and convicted for offence punishable under Section 28 r/w 23 and 8(c) of the N. D. P, S. Act. 1985 i.e. for attempt to illegally export the narcotics, and is sentenced to suffer R. I. for 10 years, fine of Rs. 1 lac i/d further R. 1. for one year. The learned Judge has also convicted and sentenced the accused for offence punishable under Section 135(1)(a) r/w 135(1)(ii) of the Customs Act. 1962 and sentenced him to suffer R. I. for one year, fine of Rs. 2000/- i/d further R. 1. for 5 months. All substantive sentences are directed to run concurrently and accused-appellant is also given benefit of set off under Section 428 of the Code of Criminal Procedure. 1973.
2. According to the prosecution on 29th April, 1991 information was received by Assistant Director Mr. S. C. Rohatagi at about 7 P. M. that one A. O. Adekunle a Nigerian national was to travel by Swiss Air Flight No. SI-197 scheduled to depart on 30th April, 1991 at 0130 Hrs. it was further informed that he was likely to carry heroin concealed in his baggage. Shri Rohatagi recorded the information in writing under his signature and delivered it to Deputy Director in a sealed cover. Simultaneously gist of information was recorded in Form DRI-I and forwarded it to Headquarters of N. C. B.. New Delhi in due course of time.
Shri Rohatagi himself. Superintendent Sawani and Intelligence Officers Bhambri and Dhange formed raiding party and at about 11.30 P. M. they reached Sahar International Airport. They kept surveillance at N. I. P. T. Sahar Module-I. At about midnight suspect passenger was intercepted after clearance from immigration and customs. Presence of two panchas viz. Mr. Contractor and Mr. Peter Rajesh was secured and the customs officers after disclosing their identity to the panchas apprised them of information received and accordingly the suspect having been intercepted.
On inquiry the suspect now appellant before this Court produced his passport, air ticket and couple of boarding passes. On examination of the documents it stood confirmed that he was the suspect under Information. The appellant told the raiding party that he had checked-in one baggage. Hence he was escorted by officers and panchas to the baggage examination hall. The appellant accused identified one cream colour soft leather suitcase as his checked in baggage. The suitcase was labelled with baggage identification tag and the number of this baggage identification tag tallied with the counter part i.e. baggage claim tag which was found affixed to the air ticket of the appellant. On asking by the officers, the appellant unlocked the bag by taking out key from his trouser pocket. The bag was emptied and yet found to be abnormally heavy. The bag had a false bottom which, when opened was found containing a polythene bag with brown powder. The bag weighed 1 Kg. Small quantity of powder was tested with field testing kit which gave positive results for heroin.
Three samples of 5 Grains which were withdrawn, kept in separate polythene bags and heal sealed. Thereafter three polythene bags were kept in three different envelopes and sealed with N.C.B. seal and also signatures of panchas. Inteiligence Officer Shri Bhambri and the accused. The remaining powder was also accordingly separately sealed.
Search of hand baggage carried on the person of the accused did not reveal any incrementing material but 1500 U.S. Dollars were recovered in the personal search.
Travel documents i.e. passport, air ticket, two boarding passes, name tag that was affixed to the identified baggage and claim tag were taken in the custody and signatures of panchas were obtained on all these documents except passport. Lock and key was separately sealed so also the cream colour suitcase.
Panchanama of all these occurrences was drawn by Shri Bhambri and all the articles were seized under the same. Copy of panchanama was supplied to the accused and acknowledgment was obtained on the Panchanama. After this the party returned to N.C.B. office along with all the seized articles and accused at about 8 or 9 A.M. on 30.4.1991. As directed by Mr. Rohatagi Mr. Bhambri also recorded statement of appellant at the office.
On 3.5.1991 Mr. Doshi, Inspector, Central Excise reached one sample to Deputy Chief Chemist and another sample was forwarded to Chemical Analyser Forensic Science Laboratory on 10th May. 1991. On completion of investigation, complaint was filed in the Court of Special Judge for N.D.P.S. Greater Bombay.
3. It appears that the accused pleaded total denial before the Trial Court. He has retracted his statement recorded under Section 67 of the N.D.P.S. Act, 1985 on 2nd May, 1991 when he was produced before Special Judge for extension of remand. He has claimed that cream colour suitcase does not belong to him. He had only brown colour zipper bag. When he was asked to identify his baggage on the Conveyer Belt in the baggage identification hall, he touched cream colour suitcase for the purpose of shifting It in order to find out his brown colour bag. Thereupon, officers forcibly contended that the cream colour suitcase was his baggage. According to him name tag and identification tag were removed from his brown suitcase and seized. No panchanama was drawn at the airport and he was forced to sign the statement by torture.
4. According to the learned Trial Judge, since no contraband was recovered during personal search of the accused but the same was recovered from checked-in baggage, compliance of Section 50 was not necessary. In spite of admission by Assistant Director Mr. Rohatagi that he does not have any endorsement of the Deputy Director in testimony of copy of information being laid before him. the learned Judge held that there is compliance of Section 42(2) in view of the claim that information in Form DRI-1 was sent to Headquarters.
In the light of evidence of witnesses, learned Judge repelled the contention of accused that cream colour suitcase was neither owned by him nor identified by him. The Judge has placed reliance on the prosecution evidence that bag was not only identified by the accused but was also unlocked by him with a key taken out from his trouser pocket.
Criticism against panch witness Mr. Hoshedar Contractor by the defence counsel did not find favour with the Trial Judge because panch claimed loss of memory of many details due to lapse of time and added that all the details were recorded in the panchanama.
The Trial Court also found the statement of accused under Section 67 of the N.D.P.S. Act, 1985 as recorded by Mr. Bhambri to be acceptable, in spite of retraction by the accused before the Special Judge. According to learned Judge the retraction was an after thought.
For the reasons discussed in para 12 of the judgment, appellant is held guilty and separately punished under Section 135(1)(a) read with 135(ii) of the Customs Act.
5. In his defence the appellant-accused has disclaimed the ownership and identification of cream colour bag. The same defence is also maintained before this Court. The learned Trial Judge felt convinced by prosecution evidence since it not only claimed identification of the baggage by the accused but unlocking of the bag with a key from his trouser pocket.
There is a discrepancy in the prosecution evidence about the manner in which the cream colour bag, from which the contraband was recovered, was identified. All the Customs Officers on one side have narrated that the baggage was Identified by accused appellant. As against this panch wittness Mr. Hoshedar Contractor has claimed that the baggage was identified on the basis of number on the checked-in baggage identification tag and its counter part which was in the custody of accused with air-ticket and generally used as baggage claim bag. In fact even the Customs Officers claimed that after accused identified the cream colour bag, the serial number on the baggage identification tag affixed to the handle of the suitcase and baggage claim tag (counter part of baggage identification tag) affixed to the air-ticket of the accused were found tallying, which according to them was a confirmation of the baggage identified by the accused to be baggage checked-in by him.
Even accepting for the sake of arguments that panch witness is unreliable for the reasons argued by learned. Counsel for appellant including the claim that he is a habitual witness since admittedly he is witness in many such seizures, panchanama is a document which was reduced the occurrence to writing simultaneously with the events or at least immediately after the event when occurrence were fresh in the memory of officers and panchas, on reference to panchanama Exhibit-20, the story narrated by the Customs Officers finds support. The panchanama records that accused was taken to baggage identification hall where he identified the cream colour suitcase. The panchanama neither claims that baggage was identified on the basis of baggage tag number tallying with the baggage claim tag, nor it records that after identification by the accused serial numbers on the two tags were checked for confirmation. However, panchanama also records that the bag was unlocked by the accused by taking out a key from his trouser pocket. Thus, even if we are to ignore the version of Customs Officers to the extent that baggage identified by the accused was confirmed to be his baggage by tallying the numbers on baggage identification tag and baggage claim tag, because the same is improvement during the course of oral evidence, fact remains that cream colour bag was identified and unlocked by accused.
The version of the panch that baggage was identified with the help of numbers on baggage identification tag and baggage claim tag is probably only part of occurrence but certainly cannot be said to be so strong a contradiction as to nullify the reliability of depositions of Customs Officers on the point.
If we take into consideration the defence story as propounded under Section 313 of the Cr.P.C. 1973. which was also relied upon by the learned. Counsel for the appellant in her arguments and examine the same on the touch-stone of probability, the same appears improbable- Not only that, but it improves reliability of prosecution story that cream colour bag must have been identified by the accused-appellant.
Accused-appellant admits that officers asked him to identify his checked-in baggage. He also admits that he had checked-in one baggage, but according to him the same was brown colour zipper bag. It is claimed by him that in order to identify that brown zipper bag he touched the cream colour suitcase. The purpose was to shift the cream colour suitcase but officers insisted, no sooner he touched the cream colour bag; that it was his baggage. If this story is to be believed inherently it will have lo be believed that the officers were aware of contraband being present in the cream colour bag. On reference to the information as recorded on Form DRI-1, there is not description of baggage by which the officers could have identified the cream colour suitcase on their own and insisted accused that it was his baggage as soon as he touched it. Moreover if the cream colour bag was not the baggage of accused it could not have been unlocked with a key in his possession.
It is therefore felt that the learned Trial Judge was justified in rejecting this defence theory.
6. As far as statement under Section 67 of the N.D.P.S. Act. 1985 the learned Judge has discarded the retraction of the accused and accepted the statement in evidence by observing that the retraction was an after thought. The learned Judge seems to be justified in taking such a view. On reference to Exhibit-10 which is an application submitted by N.C. Bureau for extension of judicial custody of appellant upto 16th May. 1991, this application was tendered on 2nd May, 1991. From the contents of this application it is evident that accused was produced before Additional Chief Metropolitan Magistrate. Esplanade on 1st May, 1991.
It is not the case of the appellant that he had retracted on production before Additional Chief Metropolitan Magistrate. Even retraction before the Special Judge has come as second endorsement by the Special Judge. Immediately on production appellant does not seem to have expressed his retraction of the statement. Only after Judge recorded his order extending judicial custody till 16.5.1991 the retraction has come by second endorsement. The Special Judge records, "accused now states that he had not made any voluntary statement. He was compelled to sign some statements written by officers". Except the words "compelled" there are no other contents in this endorsement, throwing light on the involuntary character of the statement. That comes for the first time in the statement recorded under Section 313 of the Cr.P.C. on conclusion of the evidence. In reply to question No. 21, the appellant states "the officers obtained my signature on different labels and papers under torture and force". In case appellant-accused was tortured in order to compel him to sign the statement under Section 67 of the N.D.P.S. Act. 1985 he ought to have complained about ill-treatment at the hands of officers responsible for his arrest and detention. The first endorsement by Special Judge on remand application Exh. 10 records that accused has no complaint (of ill-treatment). It is not the claim of appellant that he had complained of ill-treatment before Additional Chief Metropolitan Magistrate. The claim of signature having been obtained on the statement under Section 67 by torture and force would have been justified, only if accused had complained of ill-treatment on production before Additional Chief Metropolitan Magistrate as also before Special Judge. When there is no complaint of ill-treatment, bald claim of torture and force cannot justify the retraction. The learned Trial Judge therefore committed no error in relying upon the statement under Section 67 by discarding the retraction.
The statement under Section 67 of the N.D.P.S. Act. although admissible in the evidence, because those are the statements by the accused addressed to the officers of the Customs Department, who are not Police Officers; are not the confessions recorded by the Magistrate under Section 164 of the Code of Criminal Procedure. Those are not subject to the safeguards under which confessions are recorded by the Magistrate. It is also required to be taken into consideration that the officers are in dominating position and possibility of coercion or inducement cannot be ruled out. Hence Rule of Prudence requires that such statements cannot be the sole basis for conviction without corroboration from an independent and distinct evidence.
7. As far as panch witness is concerned the learned Judge pardoned all his omissions and versions discrepant with the Customs Officers because of his statement "at present I do not remember the details of the case. It might have mentioned in panchanama". As rightly pointed out by the learned, defence Counsel in the Trial Court there are many regions, details of which have not come in the deposition of panch witness. The details regarding weighing of contraband or drawing of samples are missing from his deposition. Packing of bulk contraband as also lock and key does not find place in his deposition. He is unaware of supply of copy of the panchanama to the accused as also return of personal belongings to him. In addition he is not able to identify third signature on the air-ticket after identifying the signatures of two panchas. The same is the case regarding signatures on boarding cards, baggage identification tags. According to prosecution the documents were signed not only by parichas but also by accused and Intelligence Officer Mr. Bhambri. Learned defence Counsel was justified in submitting to the Trial Court to look to the panch witness with suspicion. Had he witnessed the occurrence there was no reason why he should not have known the persons who signed the documents along with the panchas. It is not failure to identify the signature. It is failure to recollect as to who signed the documents and this failure to recollect is tantamount to absence of knowledge.
Mere omissions and discrepancies are not the cause to look to the evidence of panch witness with suspicion. According to Customs Officers they apprehended accused at N.I.P.T. Sahar Module-I but according to Mr. Contractor the location was Conveyor Belt at Departure Module 2A. By this deviation, panch witness has changed the location of apprehending the accused.
The story narrated by panch witness that baggage was identified by the officers on the basis of numbers on the baggage identification and claim tags is a material departure from prosecution story. According to Customs Officers the baggage was identified by the accused and numbers on the tags only provided confirmation.
These two variances in the evidence of panch witness certainly should invite the Court to accept his version with a pinch of salt.
8. The learned counsel for the appellant Ms. Kaushik has pleaded that Section 50 of the N.D.P.S. Act was not duly complied with, inasmuch as the personal search is said to have been carried out without intimation to the accused that he had a right of being searched in presence of either a Gazetted Officer or a Magistrate. According to her, the trial, therefore, vitiates and conviction cannot be sustained.
In this context, it must be remembered that according to the prosecution, heroin is claimed to have been recovered from the "check-in" baggage of the appellant-accused. The personal search resulted recovery of S 1500 from the appellant. It is not the claim of the prosecution that contraband which attracts Chapter IV of the N.D.P.S. Act was recovered on the person or in any baggage upon the person or in immediate possession of the accused. As observed by the Full Bench of this Court in Ebanezer Adebay v. B. S. Rawat, Collector of Custom and another, provisions of Section 50 would not be applicable to a search of bag or baggage, merely because the same is presumed to be in possession of the person, even though it may be lying in the house or railway compartment or at the airport. Section 50 also does not apply to a case of search of a place, conveyance or a house, merely because the accused is physically present at the time of search. These observations of the Full Bench are available for ready reference in para No. 8 of the judgment in ThankGod Afam Ezeme v. B. D. Coel, relied upon and referred by the learned Public Prosecutor Shri Thakur.
In the decision of the Constitution Bench in State of Punjab v. Baldev Singh. the Honourable. Supreme Court has drawn conclusions in para No. 57 of the judgment and conclusion at Sr. No. 7 may usefully be referred, which is as under :-
"57(7) That an illicit article seized from the person of the accused during the search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence to prove unlawful possession of the contraband on the accused, though any other material recovered during that search may be relied upon by the prosecuion. In other proceedings, against the accused, notwithstanding recovery of the material during the illegal raid."
Taking into consideration this observation, since the contraband attracting the provisions of N.D.P.S. Act is recovered from the baggage that was checked in, such recovery cannot be said to be the result of illegal raid. since Section 50 of the N.D.P.S. Act has no application to the articles recovered from baggage which is not on the person or immediate possession of the accused. The amount of $ 1500 although recovered during personal search, in view of the observations of the Honourable Apex Court reproduced above the evidence of recovery of cash of $ 1500 on the person of the accused can be relied upon, in other proceedings against the accused.
9. For the reasons discussed in later half of para 12 of the judgment, the learned Trial Judge has accepted the report of the analysis by the Deputy Chief Chemist. The learned Judge has observed that both the samples were entrusted to Shri Doshi by Shri Bhambri on 2.5.1991 and the sample to Deputy Chief Chemist was forwarded immediately i.e. on 3.5.1991 which was within 72 hours of seizure. Other sample was sent to Forensic Science Laboratory on 10.5.1991. This sample was in the custody of Shri Doshi from 2.5.1991 till 10.5.1991. The learned Judge has refused to rely on the report of Forensic Science Laboratory, because according to him due to this time gap between 2.5.1991 and 10,5.1991 possibility of tampering the sample or its substitution could not be ruled out.
In fact, Shri Bhambri has deposed that on 2.5.1991. he was required to go to Pune in connection with the investigation of some other matter and he entrusted all the seized property to his colleague Shri Doshi. He has also said that till then the muddemal property including the samples was in his safe custody. The prosecution has also examined Shri Doshi at Exhibit 11, who was deposed to have received the deposit memo kept ready by Shri Bhambri along with samples in a sealed condition, from Shri Bhambri on 2.5.1991. He, thereafter, narrated to have himself deposited the sample with the Deputy Chier Chemist on 3.5.1991 and sent another sample to Forensic Science Laboratory on 10.5.1991 per Sepoy Panigrahi. The report regarding this second sample is felt to be doubtful by the learned Trial Judge because, according to him, there was a time gap during which sample could have been tampered. The report received from the Forensic Science Laboratory is at Exhibit 16. The forwarding letter of the report indicates that the Forensic Laboratory received the sample on 10.5.1991 per Shri Narayan Panigrahi and seals were intact. Not only that but the Chemical Analyser has referred to the marking "3-2" on this sample. In the light of evidence of Shri Bhambri. followed by the evidence of Shri Doshi and report from the Forensic Science Laboratory, the inference of the Judge that the sample could have been tampered is a conjecture and is therefore, ill founded. There does not appear sufficient reason to reject the second report, especially so, when the Deputy Chief Chemist also concurs with the Forensic Science Laboratory report that it was heroine.
In fact, the sample to Forensic Science Laboratory although sent on 10.5.1991. the report is dated 30.5.1991 and therefore, it can be said that the sample must have been analysed some time prior to 30.5.1991. As against this on reference to the report from the Deputy Chief Chemist at Exhibit 13, the sample was subjected to qualitative test on 6.11.1991, although sample was sent on 3.5.1991. If at all there was more delay in analysing the sample by the Deputy Chief Chemist. However, since none of the reports complain of sample being contaminated or in a condition not fit for analysis, this time lapse does not make the report unacceptable on that ground.
10. Relying upon the law laid down by Honourable Supreme Court in the matter of State of Punjab v. Balbirsingh, learned counsel for the appellant has pleaded that the prosecution suffers with non-compliance of Section 42(1) and (2) and hence the conviction cannot be sustained. The observations of Apex Court, so far as those relate to non-compliance of the requirements of Section 42(1) and 42(2), are incorporated in conclusions 2-C and 3, as incorporated in para No. 25 of the judgment.
"2-C Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case."
So far as the compliance of requirements of Section 42(1) and (2) is concerned, we need to refer to the evidence of P.W. 1 Shri Sawant, P.W. 5 Shr! Bhambri and more particularly the evidence of P.W. 4 Assistant Director Shri S. C. Rohatagi, Shri Sawant, who had in fact received the information and who claims to have recorded the same and to have placed the same before his immediate superior.
Shri Sawant has deposed that he was called by the Assistant Director Shri Rohatagi in the chamber and he was told that a specific information was received regarding smuggling of narcotic drugs by a Nigerian national, namely, A. O. Adekunle, concealed in his baggage and Shri Rohatagi therefore, asked Shri Sawant to accompany him to the airport. It is evident that Shri Sawant has no personal knowledge as to how and when Shri Rohatagi received the information and what further actions were taken by Shri Rohatagi, so far as the compliance of Section 42(1} and (2) is concerned.
According to Shri Bhambri, he was called by the Assistant Director Shri Rohatagi to his cabin at about 7 p.m. and Shri Rohatagi ashed Shri Bhambri to scribe the information received by Shri Rohatagi in the form DRI-1. Accordingly Shri Bhambri scribed information in the prescribed format. During the course of examination-in-chief of Shri Bhambri, the manner in which Shri Rohatagi passed the information to Shri Bhambri for the purpose of filling in the same in the Form DRI-1 is not clear. Shri Bhambri was specifically cross-examined on this aspect and he was not able to recollect whether the information was dictated to him by Shri Rohatagi or he was given the paper on which the information was already recorded in writing by Shri Rohatagi.
Shri Rohatagi has deposed at Exhibit 29. He claims to have received the information at about 7 p.m. just outside the office to the effect that one Shri A. O. Adekunle. a Nigerian who was to travel by Swiss Air, Flight SI 197 on 30.4.1991 at 1.30 a.m., was likely to carry on the heroin concealed in his baggage. So far as compliance of Section 42(1) and (2) is concerned Shri Rohatagi states :-
"I recorded the said information in writing under my signature and sealed it in one envelope and gave it to my Deputy Director. Simultaneously, 1 prepared the gist of information in the Form DRI-1 and sent the same to my headquarters at New Delhi. The particulars required to be filled in the Form DRI-1 were scribed by I. O. Bhambri as per my instruction and that form was signed by me."
Considering the evidence of both these officers together it does not appear that Shri Bhambri had any opportunity to have a glance at the information that was recorded by Assistant Director Shri Rohatagi. On reference to Section 42(2) of the N.D.P.S. Act, the officer recording the information in writing is expected to forthwith send a copy thereof to his immediate official superior. Sending the information by filling in Form DRI-1 to the headquarters at Delhi is not the compliance as required by Section 42(2). Admittedly, there appears to be a post of Deputy Director of Bombay, who would be immediate superior of the Assistant Director. It is said by Shri Rohatagi that he signed the information received, sealed it in one envelope and gave it to his Deputy Director. He does not appear to have sent a copy to his Deputy Director by retaining the original in his possession.
On reference to the provisions contained in Chapter V of the Indian Evidence Act regarding the documentary evidence. Section 61 prescribes that contents of the documents can be proved either by primary or by secondary evidence. As per Section 62, primary evidence of a document means the document itself produced for the inspection of the Court. Section 63 enlists as to what secondary evidence can be led before the Court of the contents of a document. On reference to further provisions in the said Chapter, Section 64 reads as follows :
"Sec. 64 : Proof of documents by primary evidence - Documents must be proved by primary evidence except in cases hereinafter mentioned."
Secondary evidence relating to documents about its existence, condition or contents can be given in the circumstances enunciated in Section 65 of the Act. It may be mentioned here that prosecution has neither produced original information that was reduced to writing by Shri Rohatagi for perusal of the Court, nor it has pleaded any of the circumstances which permit the prosecution, in view of Section 65 of the Evidence Act; to lead secondary evidence regarding existence, condition and contents of the said document i.e. information received and reduced to writing by Shri Rohatagi. It is not the claim of Shri Rohatagi that he had delivered the copy to his Deputy Director and obtained an acknowledgement on the original of the information recorded in writing.
On reference to his cross-examination, although he states that copy of gist of information (probably Form DRI-1) was seen by the Deputy Director and the same was discussed with him, even the copy of Form DRI-1 does not bear any endorsement'in testimony of Deputy Director having taken a note of the same.
Thus the prosecution has not placed for perusal of the Court primary evidence of the document i.e. the information received and reduced into writing, nor it was pleaded much less proved any ground that may bring the prosecution case within the ambit and scope of Section 65 of the Evidence Act, permitting it to lead secondary evidence. It must, therefore, be said that the prosecution has failed to prove that the information received was reduced into writing by Shri Rohatagi. Consequently it also fails to establish that the copy of the same was placed before the Deputy Director, immediate superior of Shri Rohatagi.
So far as Form DRI-1 is concerned, as rightly pointed out by learned Advocate Ms. Kaushik, dispatch of the same to Delhi Head Quarters is not free from suspicion. Exhibit 30 shows that this Form DRI-1 bears outward No. NCB/BZV/CRO-16/91/1531/1532 and it does not bear any date. Exhibit 31 is a copy of fax message sent to the Delhi Head Quarters after completion of the raid. The fax message is dated 31.4.1991 and its outward number is F/NCB/BZU/CR-16/91/1366. Thus it is evident that Form DRI-1 was not dispatched to the Headquarters till the time fax message was dispatched after completion of the raid. This is evident from the chronology of respective outward numbers. If Form DRI-1 was not given outward number before returning from the raid, it is difficult to accept version of Shri Rohatagi that copy of the DRI-1 was also placed for perusal of the Deputy Director and thus Deputy Director was appraised of information received and recorded into writing immediately on its receipt. Admittedly this copy of the Form DRI-1 does not bear any endorsement by local Deputy Director Indicates that the same must not have been placed before the Deputy Director.
It must therefore be said that the prosecution has failed to establish the compliance of requirements of Section 42(1) and also sub-section (2) of the N.D.P.S. Act, 1985.
About the evidence of Shri Rohatagi, that he placed the original information recorded before the Deputy Director in a sealed cover, it must be noted that Shri Rohatagi does not name the Deputy Director. In fact, he was the only witness who could have disclosed the name of the Deputy Director before whom the information was placed, because, other two witnesses, namely, Savant and Bhambri seem to be totally ignorant of the information being laid before the Deputy Director. Reference to the name of the Deputy Director "Mr. Kakkar" in the impugned judgment in para No. 7 is a matter of surprise to this Court, Even the list of witnesses summoned does not incorporate the name of "Mr. Kakkar" and therefore, this Court is at loss to know the source from which the learned Trial Judge could find out the name of the Deputy Director to whom Shri Rohatagi claims to had tendered the original written information.
For all above reasons, the observation of the learned Trial Judge that there is compliance of Section 42(2) of the N.D.P.S. Act cannot be said to be correct.
The learned Advocate Ms. Kaushik for the appellant relied upon a decision of Division Bench of this Court in Nasir Baulal Mukadam v. State of Maharashtra. In this matter, because the Police Inspector did not enter the information received before he left the Police Station with the Panchas to arrest the police in connection with the possession of Brown Sugar, it was held that the appellant's case is covered by conclusion 2-C incorporated in para No. 26 of the judgment in Balbirsingh's case and this non-compliance was. therefore, held to be vitiating the entire proceedings and trial. In that case, the proceeding was held further vitiated also due to non-compliance of Section 50 of the Act.
The other judgment that was relied upon by learned Advocate for the appellant is in Abdul Rashid v. State of Gujarath. In this matter the appellant-accused was the auto rickshaw driver and contraband was recovered stacked in his rickshaw. According to the appellant, this was the consignment loaded in his auto rickshaw by two persons, named Iqbal Syed Hussain and Mehboob Rasool Khan. Recovery of gunny bags in such circumstances was also admitted by the appellant during his statement under Section 313 of the Code of Criminal Procedure, 1973. He contended ignorance of the contents of the gunny bags. The plea that there was non-compliance with the conditions stipulated in Section 50 of the Act was held to be an idle exercise, because the place where the bags were found stacked in the vehicle was not inextricably connected with the appellant.
The argument of amicus curiae on behalf of the appellant that there was non-compliance of Section 42 of the Act, which was enough to vitiate the search as a whole was opposed by the learned counsel for the State by two fold arguments. His argument that Section 42 has no application and case would be governed by Section 43 did not find favour with the Honourable Supreme Court, because admittedly, the Investigating Officer had proceeded on getting prior information, which was precisely falling under Section 42{1) of the Act.
As an alternate, it was argued in the reported case by the counsel for the State that non-compliance with Section 42 of the Act, cannot be visited with the greater consequences than what has been held by the Constitution Bench of Supreme Court regarding non-compliance with the conditions in Section 50 of the Act. The consequences of non-compliance of Section 50 as laid down by the Constitution Bench in the matter of Baldevsingh's case are reproduced in para No. 8 of this judgment. The Honourable Supreme Court also considered the conclusions drawn by two Judges Bench in Balbirsingh's case with the observations that the conclusions relevant for the case regarding Section 42(1) are 2-C and 3 of para No. 25. In para No. 18, the Honourable Supreme Court concluded its observations, on these arguments as follows :
"When the same decision considered the impact of non-compliance with Section 50 it was held that "it would affect the prosecution case and vitiate the trial". But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Baldev Singh the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance with Section 42 also ...."
According to the Supreme Court, when an Officer although has prior information takes an action without recording such an information, his action becomes suspect, though trial may not vitiate on that score alone. However, the Apex Court also records in firm words that such an action would be causing prejudice to the appellant.
The conclusions in Baldevsingh's case regarding consequences of non-compliance of the conditions in Section 50 of the Act incorporated in para No. 57 of that judgment are reproduced in para No. 8 of Abdul Rashid's case. The arguments of learned Counsel for the Stale that non-compliance with Section 42 cannot be visited with the greater consequences than as held by the Constitution Bench of the Supreme Court regarding non-compliance with Section 50 of the Act, seems to have been accepted by the Honourable Supreme Court with its observations in para No. 18 which are reproduced above. Referring to para No. 8 and especially conclusion 3, the Honourable Supreme Court has held that in case of search conducted in violation of the provisions of Section 50 of the Act, although may not vitiate the trial, it would render the recovery of illicit article suspect and vitiates the conviction and sentence of the appellate; where the conviction has been recorded only on the basis of the possession of illicit article recovered from his person during such search.
11. In the present matter, although not recorded, Shri Rohatagi has narrated as to what information was received. The information received being to the effect that one A. O. Adekunle, a Nigerian national, was to travel by Swiss Air flight and likely to carry and thus export, heroin, concealed in his baggage; was the information attracting Section 42(1) of the Act. Therefore, it was Imperative upon Shri Rohatagi to take down the same in writing and send a copy thereof to his immediate official superior. Since the same has not been done, as observed in Baldevsingh's case, conviction and sentence, although not trial, would vitiate, if found only on the basis of possession of illicit article.
In the matter at hand, recovery of the contraband from the baggage of the appellant accused is not the only evidence supporting the case of possession of contraband by him. It is unanimously deposed by all the prosecution witnesses (except panch) that the suitcase from which the contraband was recovered was identified and opened by the appellant with the key taken out from his pant pocket. The officers of the Customs Department have also recorded the statement of appellant accused under Section 67 of the Act, which is found to be reliable as discussed in para No. 6 above. The story propounded by the appellant accused in his defence, as discussed in para No. 5 above, not only fails on the touchstone of the probability but is capable of rendering support to the prosecution case to the extent that the accused was taken to baggage Identification hall for the purpose of identification of his checked in baggage. (This infact also nullifies the adverse effect, if any, caused by non-reference to matching of baggage identification tag and baggage claim tag in the panchanama). Taking into consideration other circumstances available for supporting the prosecution story that contraband was recovered in the cream colour suitcase, identified by the appellant, it must be said that; in spite of the failure on the part of the prosecution to establish compliance of Section 42 of the Act, the case does not become unworthy of credence. There appear no reason to falsely inculpate the appellant, who must be unknown to prosecution witnesses prior to incident in question.
In other words, prejudice if any that was caused to the defence of the accused by non-compliance of Section 42. in the facts and circumstances of the case; has not made the prosecution case unworthy of belief.
12. As per Section 13(2) of the Foreign Exchange Regulation Act, 1973, no person, except with the permission of the Reserve Bank of India take or send out of India, any foreign currency or foreign exchange, other than the foreign exchange obtained by him from the authorised dealer. (In view of the statement under Section 67 of the appellant-accused, he had received $ 1500 for the purpose of meeting the expenditure of carrying the contraband to Nigeria). The contravention of Section 13 is specifically excluded from the penal sections under the F.E.R.A. i.e. Sections 50 and 56. On the contrary. Section 67 is a provision which incorporates those provisions of F.E.R.A. which are specifically excluded from the ambit of penal sections 50 and 56 of the said Act, and by legal fiction grants it the status of restrictions imposed under Section 11 of the Customs Act and simultaneously also makes the provisions of that Act applicable.
Section 135-A prescribes punishment for preparation to export any goods in contravention of the provisions of the Customs Act and the definition of goods in Section 2(22)(d) includes currency. Under Section 135(l){a) a person, if knowingly concerned in any attempt of evasion of any prohibitions, imposed for the time being under Customs Act, is punishable as prescribed in Section 135(1)(1) or (ii). In case the goods are such to which Section 123 applies and are valued exceeding Rs. 1,00,000. Section 135(1)(i) comes into play and in any other cases. Section 135(1)(ii) provides punish ment. Since the appellant was found attempting to export goods (currency) in contravention of Section 13(2) of the F.E.R.A., he is rightly dealt with under Section 13(1)(ii) of the Customs Act, 1962.
In view of the above reasons, findings of guilt, conviction and sentence calls for no interference and hence the appeal is dismissed.
At this stage, after pronouncement of the judgment, Advocate for appellant Ms. Kaushik, prayed for the reduction of default sentence, which totally amounts to two years and five months, since the same is not concurrent.
Ms. Kejariwal, learned A.P.P. vehemently opposed the prayer.
The prayer is, therefore, rejected.