Calcutta High Court (Appellete Side)
Md. Abul Hossain vs Department Of Customs on 27 February, 2020
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice SAHIDULLAH MUNSHI
And
The Hon'ble Justice SUBHASIS DASGUPTA
C.R.A. No. 488 of 2016
Abdul Hossain Mahammad @ Abdul Hossain Mohammad @
Md. Abul Hossain
... Appellant/Petitioner
-Versus
Department of Customs
... Respondent/Opposite Party
Mr. Suman De Mr. Debanshu Ghorai, ... for the appellant Mr. K. K. Maiti, Mrs. Sanjukta Gupta ... for the Customs Mr. Narayan Prasad Agarwala, Ms. S. Patel ... for the State Heard on: 13.11.2019, 18.11.2019, 25.11.2019, 02.12.2019, 09.12.2019 & 11.12.2019.
Judgment on : February 27, 2020 Sahidullah Munshi, J.: This appeal is against the judgment and order of conviction dated 31.05.2016 and the order of sentence dated 10.06.2016 passed by the learned Additional District and Sessions Judge, 6th Court, Barasat, North 24-Parganas in N.D.P.S. Case No. N-147/2013 (835/2014) convicting the appellant under Section 20(b)(ii)(c)/23(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'said Act'). Thereby imposing a sentence upon the convict to suffer rigorous imprisonment for 12 years and to pay a sum of Rs.1,00,000/- in default to suffer simple imprisonment for one year more for the commission of offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act and also directing the convict to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- in default to suffer imprisonment for one year more for the commission of offence under Section 23(c) of the Narcotic Drugs and Psychotropic Substances Act.
The prosecution case in short is that the official of Air Intelligence Unit of Customs hereinafter called as Air Intelligence Unit, detained one person on suspicion while he was about to fly to Hongkong by Dragon Airlines flight No. KA-
169. Failing to give proper reply to quarries of the Air Intelligence Unit officials by the accused, his luggages were off-loaded from the concerned aircraft. The said luggages were three in number within which cardboard boxes were found and those opened by the authorities in presence of independent witnesses and the Superintendent of Customs. From one of the said boxes packets of spices were found to be kept wrapped with carbon papers. When such packets were opened, brown coloured cardboard boxes were found and those were tested with the full detected kit and the result whereof became positive to the test of 'Cannabis' (Charas). From the other two boxes packets of puffed rice were found when the detenu failed to show any papers to possess the said charas as a result whereof the officials issued and served a notice under Section 67 of the Narcotic Drugs and Psychotropic Substances Act (NDPS) upon the accused. According to prosecution the accused gave his voluntary statement and confessed his guilt later on he was arrested and was produced before the learned Chief Judicial Magistrate at Barasat. After collection of materials, the Air Customs Superintendent, Air Intelligence Unit (AIU), Airport at Calcutta filed a complaint which gave rise to case No. 147 of 2013. On the basis of the materials on record charged was framed under Section 20(B)(ii)(C)/S23(c) of the (NDPS) Act was framed against the accused/ appellant to which he pleaded not guilty and claimed to be tried. The case was committed to trial. As many as 31 witnesses who were cited by the prosecution but only 12 of whom were examined by the prosecution.
The appellant did not adduce any witness and took a plea of false implication during his examination under Section 313 of Criminal Procedure Code. In the examination under Section 313 of Criminal Procedure Code the appellant took a plea that his actual luggages were not off-loaded and the luggages which were shown to him were not his luggages. He further pleaded that his confession was obtained under threat and coercion.
While arguing this appeal Mr.De, learned advocate, appearing for the appellant has submitted that the prosecution has failed to prove the case beyond all reasonable doubt in as much as (a) contraband was not seized from the possession of the appellant, (b) seized contraband was never produced before the learned court below, (c) no inventory was ever made, (d) no examination of independent witnesses to the seizure, (e) seized contraband was not destroyed during trial and even no application for destruction was made before the court. Mr.De, accordingly, submitted that the appellant is entitled to an order of acquittal and the judgment and order of conviction and sentence is liable to be set aside. So far the first point raised by Mr.De, he submitted that the checked-in baggages of the appellant were never seized from his possession. According to him, before going to the plain, all the baggages were going through the auto checked under the scanner and if any contraband was there, it would have been detected. Mr. De submitted that checked in luggage went to the plain for checking and simply on doubt those were off-loaded and searched again wherein contraband was detected. He submitted that the circumstance is suggestive of not having seized the contraband from the possession of the accused. He submitted that the baggages were brought out by the airlines officials from the plain but only one officer of airlines has been named in the list of witnesses. None of the airlines official was examined during trial. Therefore, according to him, it is doubtful whether any airlines official at all brought the same or the same was brought by the customs authority themselves and during search of the baggage contraband was found. According to Mr. De non-examination of airlines official is fatal for the prosecution case.
As per evidence of the Seizing Officer Priyabrata Das (PW.12) when along with the Superintendent of Customs, Mintu Das (P.W.5) was on at the departure Air of Netaji Subhas Chandra Bose International Airport (NSCBI) and while keeping surveillance over the outgoing passengers, the movement of the accused was noted to be suspicious. Thereafter his passport was checked and it was further noticed that the said person travelled abroad several times. On interrogation he failed to give any satisfactory reply following which concerned airlines authority (Dragon Airlines) was directed to off-load the luggage of the said accused/appellant. P.W. 12 deposed that the said passenger handed over his luggage bag to the concerned airlines authority and thereafter he brought his luggages which were three cardboard boxes and on interrogation, the said passenger disclosed that those baggages contained packets of spices and puffed rice. In presence of two disinterested persons, P.W. 12 opened the said three cardboard boxes when packets of spices were found therein. The contraband was thus detected from the baggages which were identified by the passenger as per the tag handed over by him to the Seizing Officers. P.W. 11 Debabrata Nath supported the deposition of P.W. 12 and proved the notice issued under Section 67 which was served upon the accused he also proved the statement of accused under Section 67 of the (NDPS) Act Exbt. 5. It was his deposition that the same was recorded in his presence by P.W. 2. Therefore evidence on record is sufficient to prove that the contraband was seized from the custody of the accused from his luggage.
So far the second point argued by the appellant that seized contraband was never produced before the learned Court below, we find it difficult to accept such argument inasmuch as, apparently, the seized contrabands and the samples which were drawn, had been placed before the trial Court and those were marked as material exhibits without any objection. Quantity of the contraband seized was a huge quantity and the learned Court below has held that the allegation made by the appellant that the accused persons have been framed for planting the contraband to accuse them by false implication is also not evident.
The third point raised by the appellant that no inventory was done is also contrary to the evidence on record when we find that the recovery memo contained the details of the article seized and the recovery memo itself has been marked as exhibit. Therefore, argument advanced by the appellant with regard to non-inventorising the articles is without any basis.
So far the point raised by the appellant alleging non-examination of the independent witnesses to the seizure, it goes without saying that the provision of Section 100 of the Code of Criminal Procedure if complied with, the issue raised by the appellant cannot be sustained. Argument advanced by the learned counsel for the appellant that the witnesses so cited by the prosecution did not turn up. Therefore, according to the appellant the prosecution case has not been proved beyond reasonable doubt. Section 100(5) of the Code of Criminal Procedure specifically lays down that there is no need to interrogate independent persons and to bring them as witnesses terming to them to be independent witnesses unless they are specifically summoned for this purpose. If the seizure list shows that the same had been signed by two independent witnesses, being the Officers of the concerned department and the accused, there is no scope to disbelieve the search and seizure which took place in presence of such witnesses. Learned trial Court, however, discussed this issue threadbare and relying on G. Srinivas Goud
-Vs. - State of Andhra Pradesh reported in AIR 2005 SC 3647 held that the seized contraband as well as the samples drawn were marked as material exhibits, there is hardly any scope to doubt the seizure in presence of the witnesses available in the airport. Simply because Airport area is highly protected area, the persons available there cannot be considered to be independent witnesses, cannot be accepted to be logical at all. It cannot be held that the officers on duty would have to go outside the Airport area to find out independent witness as argued by the learned counsel for the appellant which is clearly not the intention of the legislature. All witnesses available at the spot should be deemed to be independent unless contrary is proved. If Sub-section (4) and (5) of Section 100 are read together the confusion can be removed. Therefore, this submission of the appellant is contrary to the ratio laid down in G. Srinivas Goud (supra) and cannot be accepted.
It has been submitted by the learned Advocate for the appellant that impugned judgment itself recorded that Section 52A of the NDPS Act, 1985 was not complied, although, it is mandatory provision. He submitted that even request was conveyed through the impugned judgment to comply with the said provision. According to the learned counsel sentencing part was delivered on 10th June, 2016 which is after a month of the pronouncement of the judgment, such sentencing order also reflects that till that day the seized contraband had not been destroyed. According to him even no prayer was made under Section 52A of the said Act. Therefore, according to the learned counsel this non-compliance of Section 52A of the NDPS Act favours the accused with an order of acquittal. On this issue he has relied on the decision in the case of Noor Aga -Vs. - State of State of Punjab and Anr. reported in (2008) 16 SCC 417 and Dilip Das -Vs. - Union of India reported in (2017) 3 CLJ 81.
Relying on Noor Aga (supra) it has been contended by the appellant that since Section 52A of NDPS Act requires disposal of seized narcotic drugs and psychotropic substances the authority ought to have complied with the same and having not done so, it is submitted by the appellant that the proceeding had been vitiated for statutory non-compliance. The principles laid down in Noor Aga (supra) case is not applicable, inasmuch as, mere non-compliance of the provision of Section 52A is not enough to hold that the proceeding has vitiated. Section 52A of the NDPS is set out below:
"S.52A. Disposal of seized narcotic drugs and psychotropic substances.--
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-
section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
The purpose for which Section 52A has been incorporated in the Act is to ensure disposal of contraband to stop repeat of further incident at the behest of unscrupulous person in the department because the course of action for the Investigating Authority has been mentioned in Section 52A whereby prosecution should have resorted to obtain an order from the competent Court of the Magistrate as envisaged under Section 52A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder makes an application for any or all of the following purposes:
"(a) Certifying correctness of the inventory so prepared; or
(b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or
(c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn."
Sub-section (3) of Section 52A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. In Noor Aga (supra) destruction was made by the Investigating Authority without any such application as has been required to be filed under the provisions of Section 52A. The Court disbelieved the story of destruction and held that while it was mandatory for the investigating authority to produce the seized contraband before the trial Court, having not been done is a lacunae on the part of the Investigating Authority which leads to a conclusion that there was neither seizure nor inventory of the contraband which is not the case here. Therefore, principles underlying the decision of Noor Aga (supra) does not help the appellant to get an order of acquittal on the purported ground of non-compliance of Section 52A of NDPS Act.
This is also necessary to mention that the appellant cannot get any benefit of the argument so made showing non-compliance of Section 52A unless the Act of such non-compliance causes any prejudice to the accused. On this ground also the appellant's contention cannot be accepted.
In Dilip Das (supra) the decision where the order of conviction was set aside not on the ground for non-compliance of Section 52A but on some other grounds namely; for non-compliance of Section 42(2) of 1985 Act. Therefore, the ratio in the decision of Dilip Das (supra) is not applicable in the present case.
On the requirement under Section 52A of the said Act, Mr. Maity appearing for the respondent/Customs submitted that disposal of contraband has no bearing with regard to the procedure of search and seizure of the contraband. Section 52A of the said Act provides for disposal of seized narcotic drugs and psychotropic substance the competent authority of the Central Government may having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage, space of any other consideration, in respect of any narcotic drugs and psychotropic substances, controlled substances or conveyances, by notification in the official gazette, specify such narcotic drugs or psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that government may, from time to time, determine in compliance of the procedure laid down under the law. Section 52A was inserted by Act 2 of 1989 w.e.f. 29.05.1989. The said Section has been incorporated in the NDPS Act, as per the mandate contained in the United Nations Conventions Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. Clause 5 of Article 14 of the said Convention requires that parties may take necessary measures for early destruction or lawful disposal of the Narcotic Drugs Psychotropic Substance which have been seized or confiscated and for the admissibility as evidence of duly certified necessary qualities of such substances. The obvious reasons for incorporation of the said provision is not to confer any benefit or protection to the accused but to ensure that the drugs seized and kept in the custody of the enforcement agency and the Courts do not get recycled into illicit traffic. Simply non- disposal of the contrabands under Section 52A cannot be conclusive of any benefit favouring acquittal of the accused or the same cannot be extended to the extent of benefiting the accused to take the plea that the proceeding has vitiated or that the accused cannot be liable for either prosecution or conviction when legislature after due consideration brought in Section 54 in the Act by Act 9 of 2001 w.e.f. from 02.10.2001. Had there been no such provision like Section 54 where it has been categorically mentioned that in trials under this Act, it may be presumed that the accused has committed an offence under the Act unless contrary is proved.
That apart the prime consideration would be whether by such non- compliance, if at all an accused has suffered any prejudice or not if the immediate disposal under Section 52A of the Act is not followed. If no such prejudice is caused definitely the accused cannot urge for any benefit for such non-compliance and/or so called infraction. In the present case, however, Mr. Maity has placed before us a circular letter issued by the Office of the Commissioner of Customs (Airport and Administration) Government of India dated 14.07.2016 which reveals that in the light of the judgment passed by the Court of Additional District & Sessions Judge, 6th Court, Barasat, North-24- Parganas of 5 kgs. (Approx) "Hashish" seized from Abul Hossain Mohammad has been destroyed by process of incineration in the presence of Drug Disposal Committee on 14.07.2016. A certificate of destruction bearing no. MEMPL/CUSTOM/CERTIFICATE/16-17/036 dt. 14.07.2016 has been issued by M/s Medicate Environment Management Pvt. Ltd. Howrah, is enclosed herewith which contained a direction of disposal, has been complied with nearly within 34 days.
Mr. Maity has rightly pointed out that non-compliance with the procedure laid down under Section 52A of the NDPS Act for disposal, does not, in any manner affect the validity of the trial as held by the Hon'ble Apex Court in Amarjeet Kaur -Vs. - State of Haryana and Ors. reported in (2003) 1 RCR (Criminal) 99. Paragraph 8 of the said judgment is relevant and is set out below:
"8. I have considered the rival submissions and perused the judgment of Division Bench of Calcutta High Court in Tej Bahadur Singh's case (supra). In my view Section 52A relates only to procedure for disposal of the contrabands. In the present case, the charge is under Section 15 of the Act for the appellant being in possession of contraband. Once the said contravention is established, the accused is liable to the punished.
Procedure for search and seizure is relevant for proving the offence of possession of the contraband. No doubt, if search is illegal in violation of Section 50 of the Act, it has been held that contraband cannot be taken into consideration. Other provisions of the Act have been held to be directory and vitiate the prosecution only on showing of prejudice to the accused. Sections 52 to 57 of the Act have been held to be directory. Section 52A comes into picture only after seizure, and under Section 55, the officer incharge has to keep in safe custody all the articles seized subject to certain conditions, such as sample is allowed to be taken, and keeping of articles in safe custody is subject to the order of the Magistrate as to the disposal of seized articles. Noncompliance with the procedure laid down under Section 52A for disposal does not in any manner affect the validity of the trial unless prejudice is shown. The case property was produced before the court and is Exhibit P1 to P4, and the same was properly identified. Merely because the same was not disposed of at the pretrial stage by following the procedure does not affect the veracity of the case of the prosecution and does not vitiate the trial. In fact, the object of disposal of the case property at the pretrial stage is to ensure that the case property is not misused, and also to relieve the prosecution of the responsibility of safe custody. Once safe custody and identity of the case property is proved and the case property is produced for inspection of the court, noncompliance of Section 52A does not vitiate the trial and , therefore, I am not inclined to subscribe to the view taken in the judgment of Calcutta High Court in Tej Bahadur's case (supra)."
Mr. Maity has also relied on a decision in State of Punjab -Vs. - Makhan Chand reported in 2004 AIR (SCW) 1419. This decision also held that Section 52A does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. The Hon'ble Court also held that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer-in-charge of the Investigating Authority. Paragraphs 10 and 11 of the decision are relevant and set out below:
"10. This contention too has no substance for two reasons. Firstly, Section 51A, as the marginal note indicates, deals with "disposal of seized narcotic drugs and psychotropic substances". Under Sub- section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substance's having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in Sub-sections (2) & (3). If the procedure prescribed in Sub- sections (2) & (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificate contemplated by Sub- section (2), then Sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under Sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.
11. Secondly, when the very same standing orders came up for considerations in Khet Singh v. Union of India, this Court took the vie that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer-in-Charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention."
In our view, therefore, the contention of the appellant that in absence of non-compliance of Section 52A of NDPS Act, he gets a favourable acquittal, does not at all hold good.
To argue that if there is any defect in the inventory and the inventorised goods later on have not been produced before the Court during trial the proceeding should stand vitiated and to substantiate such contention. The appellant as relied on the following decisions:
• Unreported decision in State of Rajasthan -Vs. - Sahi Ram decided by the Hon'ble Apex Court on 27th September, 2019 in Criminal Appeal No. 1497 of 2019;
• Jitendra & Anr. -Vs. - State of M.P. reported in (2004) SCC 562 & • Bishnu Sarkar -Vs. - The State of West Bengal unreported decision of the Hon'ble High Court passed in C.R.A. No. 290 of 2010.
Jitendra and Anr. (supra) has been relied on the same issue on which Sahi Ram (supra) has been relied on by the learned counsel for the appellant in Jitendra and Anr. (supra) the Hon'ble Apex Court held "The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act..." The decision is distinguishable on fact because in the present case indisputably the articles were seized, samples are marked exhibits after production before the Court. No further elaboration on the decision is necessary.
In Sahi Ram (supra) the fact was different and is distinguishable. In the said matter the High Court in an Appeal against the order of conviction took a view that prosecution failed to exhibit the contraband in Court and therefore, entire evidence of the prosecution regarding alleged seizure had to be discarded.
Consequently, the judgment and order of conviction and sentence passed by the Special Judge was set aside and the accused was acquitted against which State has filed the appeal before the Hon'ble Supreme Court. Question arose whether in case of failure to produce contraband material before the Court the case of prosecution is required to be discarded or not. While allowing the appeal the Hon'ble Apex Court relying on Noor Aga (supra) case has held that prosecution must in any case produce the samples even where the bulk quantity s said to have been destroyed. The Hon'ble Apex Court observed that in Noor Aga (supra) case the judgment do not say anything about the consequence of non-production of the contraband goods before the Court in a prosecution under the NDPS Act.
These observations have been summarized in paragraph 13 of the decision which is set out herein below:
"13. In Vijay Jain v. State of Madhya Pradesh, it was submitted on behalf of the accused, as is evident from para 4 of the decision, that there was non-production of the contraband goods. This Court dealt with the matter as under:-
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016 State of Rajasthan vs. Sahi Ram "9. Para 96 of the judgment of this Court in Noor Aga case2 on which the learned counsel for the State very strongly relies is quoted hereinbelow: (SCC p. 464) "96. Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act." Thus in para 96 of the judgment in Noor Aga case2 this Court has held that the prosecution must in any case produce the samples even where the bulk quantity is said to have been destroyed. The observations of this Court in the aforesaid paragraph of the judgment do not say anything about the consequence of non- production of the contraband goods before the court in a prosecution under the NDPS Act. (Emphasis added)
10. On the other hand, on a reading of this Court's judgment in Jitendra case3, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok4 this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016 State of Rajasthan vs. Sahi Ram non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.
12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non- production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable." (emphasis added)."
In this decision Paragraph 17 of the decision is also important to be taken note of where the Hon'ble Apex Court held that if the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the Court. The Court held that the material could be so bulky, it is not possible to produce the entire bulk before the Court. If the seizure is otherwise proved and if the samples taken from the contraband material and produced during trial that would be sufficient. In the present case as we have already pointed out that the contraband was marked material exhibit meaning thereby the same was produced before the Court.
In this decision the Hon'ble Apex Court also considered the views in Noor Aga (supra) case and thereafter, came to a conclusion that "If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out." Mr. Maity has already pointed out before us controverting the submission made by the appellant that by this decision the Hon'ble Apex Court set aside the order of acquittal passed by the Rajasthan High Court and confirmed the order of conviction recorded by the trial Court.
The decision in Bishnu Sarkar (supra) has been relied on to argue that the appellant Bishnu Sarkar was released from custody and the order of conviction was quashed and set aside holding that prosecution could not prove its case beyond all reasonable doubt. Such finding was arrived at by the Division Bench of Our Court because PW1 and PW2, the police personnels who claimed to be the witnesses to the alleged recovery and seizure of the contraband articles from the possession of the appellant, were not shown during trial for their identification and even no such seizure article was produced before PW3, a Gazette Officer or the Investigating Officer (PW8) for their identification during trial. Therefore, this decision is also distinguishable on fact and has no manner of application in the present case.
Mahinder Singh (supra) has been cited to argue on the same issue regarding production of contraband substances seized from accused before trial. It is the settled law that non-production of the seized articles before the Court during trial can be considered fatal for the prosecution. Same principle has been reiterated in the decision of non-prosecution and is distinguishable on fact. In our case where production had been made and contraband was made material exhibit.
Gorakh Nath Prasad (supra) has been relied on again on the same issue reiterating that in absence of production of seized item in Court, prosecution may suffer a great jolt but yet it does not help the defence as the decision is distinguishable on fact to the extent that the fact situation of the case referred does not match the fact situation of the present case where seized articles were placed before the Court during trial and marked as Exhibit.
Learned Advocate for the appellant contended that the Customs Authority never brought independent witnesses who could witness the search and seizure and to prove by such independent witnesses that the contraband had been seized from the custody of the appellant. On this issue of examination of independent witnesses during search and seizure, learned advocate for the appellant relied on the following decisions:
• Naresh Kumar @ Nitu -Vs. - State of Himachal Pradesh reported in (2017) 15 SCC 684;
• Krishna Chand -Vs. - State of Himachal Pradesh reported in (2018) 1 SCC 222 & • Union of India -Vs. - Leen Martin & Anr. reported in (2018) 4 SCC 490 In Naresh Kumar (supra) it has been held by the Hon'ble Apex Court that in case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. Although, in this decision the Hon'ble Apex Court reversed the order of High Court by restoring the order of Acquittal by the Trial Court but the fact and circumstances of the case does not match with the fact situation of the present case. Therefore, the ratio in the decision is not applicable in our case.
The decision in Krishna Chand (supra) has been cited to draw our attention that in the said decision the Hon'ble Apex Court held that the place where the accused was alleged to have been apprehended could not be sad to be an isolated one. The version of the complainant that independent witnesses could not be isolated as it was an isolated place did not inspire confidence of the Court and thereby the Hon'ble Apex Court held "In our opinion, the High Court failed to appreciate that the harsher is the punishment, the more is the strictness of proof required from the prosecution and that failing to associate independent witnesses at the time of recovery created a dent in the case of prosecution".
In our case the search and seizure was within the Airport and the baggages were taken back from the Airport where independent witnesses, as contended by the appellant, could not be available.
Leen Martin & Anr. (supra) has been relied on by the appellant to argue a similar issue of independent witness. The said decision is also distinguishable on fact and we are not inclined to repeat the same logic. The fact involved in the decision is where the respondent no.1 was an accused whose order of conviction was set aside by the High Court against which the appeal was filed before the Hon'ble Apex court. The Hon'ble Apex Court held that the respondent no.1 had already undergone 4 and ½ years of incarceration and he is also not in this country, and further held that evidence of panch witnesses were contradictory to the statement of the Intelligence Officer. The Hon'ble Apex Court held that except statement made under Section 67 of NDPS Act, by respondent no.1, there is no other material to substantiate the case against the respondent no.1. On such consideration the Hon'ble Apex court dismissed the appeal. The fact situation is totally distinguishable from the present case.
To contradict the submission made by the appellant Mr. Maity contended that if the seizure list shows that the same was signed by two independent witnesses, the officer of the concerned department and the accused, there is no scope to disbelieve the version of the search and seizure and this cannot be nullified simply because such witnesses did not turn up to prove the fact beyond reasonable doubt. He relies on the decision of G. Srinivas Goud -Vs. - State of Andhra Pradesh reported in AIR 2005 SC 3647 in the said decision Exbt-P2 was the Panchnama which was signed by two independent witnesses, the three Officers of the department and two accused persons. It was a case of recovery of 20kg of Diazepam which is a banned drug as per the Schedule to the Act. The Hon'ble Apex Court held that when the quantity recovered is so much, it does not appear to be a case of planting. It was also opined that the panchnama left no scope for doubting the seizure. So far as the association of independent witnesses is concerned it was seen that the time of search was 5.30 am in the morning and at that time it was difficult to get people from general public to act as independent witnesses. Still the officer managed to get two witnesses one of whom was examined. However, the Hon'ble Apex Court held that there is no substance in the document to find fault on the issue of independent witness looking at the fact of that case in respect of which search and seizure was made at 5.30 am in the morning in our case the search and seizure was made at the Airport itself. The baggages were identified by the accused to be their baggages, these baggages were taken back from the Airbus after security check and without pointing out any inconsistency in the evidence simply it cannot be argued that as the witnesses to seizure are the officials of Customs or of the Airport Authority, they are not independent witnesses. It cannot even be imagined to get independent person from outside to witness the seizure inside the Airport area.
Mr. Maity has rightly pointed out that recovery of the article cannot be doubted for non-examination of independent witnesses. He relied on a decision of the Hon'ble Apex Court in M. Prabhulal -Vs. - The Assistant Director, Directorate of Revenue Intelligence reported in (2003) AIR (SC) 4311. Paragraph 6 and 7 of the decision are relevant and the same are reproduced below:
"6. Next, learned counsel contends that the independent witnesses of the recovery of the contraband having not been examined and only police witnesses having been examined, the recovery becomes doubtful. Reliance is placed upon the decision in Pradeep Narayan Madgaonkar and Ors. v. State of Maharashtra, [1995] 4 SCC 255. In the decision relied upon while observing that prudence dictates that evidence of police witnesses need to be subjected to strict scrutiny, it was also observed that their evidence cannot be discarded merely on the ground that they belong to police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particularly should be sought. In that case the observations were made in the light of the fact that the police officials made an attempt to create an impression on the court that the two witnesses were witnesses of locality and were independent, knowing fully well that one of the witnesses was under the influence of the police and available to police as he had been joining the raids earlier also and other witness was a close associate of the said already available witness. The friendship between the two witnesses developed during the days of gambling when the police having admittedly conducted a raid at their den. It was observed that the very fact that the police officer joined the said two witnesses creates a doubt about the fairness of investigation coupled with the manner in which the statements had been recorded in that case. The observations relied upon have no applicability to the facts and circumstances of the present case particularly having regard to the confessional statements of the appellants which we have held were voluntary. On the facts of the case, recovery cannot be doubted for want of non-examination of independent witnesses.
7. The search and seizure was also faulted for the reason of the same having taken place not on spot but in the customs office. The reason why it had taken place in the customs office has been noticed earlier. In this regard, reference may also be made to Khet Singh v. Union of India, [2002] 4 SCC 380, a case under NDPS Act where decision of the Constitution Bench in Pooran Mal v. Director of Inspection (investigation), New Delhi & Ors., [1974] 1 SCC 345 was noticed for the proposition that courts in India and England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. The Court declined in that case to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Further, in the said case though the mahazar was not prepared at the spot but at the office of the Customs Department, it was found that the accused were very much present throughout and there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. The position in the present case is also same. Here too, no allegation about meddling with the contraband has been made, in our view, on the facts of the case, there is no illegality in the seizure of the contraband either on account of non- examination of the independent witnesses or by effecting the seizure at the office of the Customs Department, the appellants having failed to establish that any prejudice was caused to them."
He also relies on the decision of Appabhai and Anr. -Vs. - State of Gujarat reported in (1988) AIR (SC) 696 where the Hon'ble Apex Court was pleased to hold that the prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. Based on this proposition the Hon'ble Apex Court rejected the contention urged on behalf of the appellant. Paragraph 10 and 11 of this decision are important and those are set out below:
"10. In the light of these principles, we may now consider the first contention urged by the learned Counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us 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 whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap and Ors. v. State of Haryana 1988 (3) S.C.C. 327 O. Chinnappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed; (at p.
330).
Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter- attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
11. These may be some of the reactions. There may be still more. Even a man of prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those respects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."
Lastly, it has been submitted by thee learned advocate for the appellant that the conviction based on confessional statement cannot stand. The learned advocate to this effect relied on two decisions:
• Union of India -Vs. - Bal Mukund and Ors. reported in (2009) 12 SCC 161 & • M. Prabhulal -Vs. - The Assistant Director, Directorate of Revenue Intelligence reported in (2003) SCC (Cri) 2024.
The decision in M. Prabhulal (supra) has already been discussed by us. This decision as has been relied on by Mr. Maity in support of the prosecution case where the Hon'ble Court has held "In our view, on the facts of the case, there is no illegality in the seizure of the contraband either on account of non- examination of the independent witnesses or by effecting the seizure at the office of the Customs Department, the appellants having failed to establish that any prejudice was caused to them." The Hon'ble Apex Court in the said decision further held that where the confessional statement appears to be voluntary, recovery cannot be doubted. The Hon'ble Apex Court in this decision held "...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 u/s 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 appellants' conviction."
In the present case also the confession made by the accused has not be retracted. Therefore, the argument advanced by the learned Advocate for the appellants does not at all help to get an order of acquittal.
Bal Mukund and Ors. (supra) has been relied on by learned advocate to argue that conviction cannot be made on the basis of confessional statement but the ratio decided in the decision is not applicable in the present case, where the Hon'ble Apex Court held that if a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of section 30 of the Evidence Act and not otherwise. The ratio of the decision is not applicable in the fact situation of the present case.
Learned Advocate for the appellant has also relied on a decision in Nirmal Singh Pehlwan alias Nimma -Vs. - Inspector, Customs, Customs House, Punjab reported in (2011) 12 SCC 298 to argue that conviction based on confession made by accused to Customs Officer cannot be sustained. Learned advocate submitted that Customs Officer is also a police officer and confession before a police officer is not admissible in evidence. This decision in Nirmal Singh Pehlwan (supra) the Hon'ble Apex Court followed the principles laid down in Noor Aga (supra) case where it has been held that a Customs Officer while exercising police power and if confession made by an accused before him it could result in a conviction and sentence, such a confession was hit by the embargo under Section 25 of the Evidence Act, 1872, and was, therefore, not admissible in evidence. There is no dispute with regard to the said proposition as laid down by the Hon'ble Apex Court in respect of Noor Aga (supra) case. Although, there is another judgment of coordinate Bench in Kanhaiyalal -Vs. - Union of India reported in (2008) 4 SCC 668 which reiterated the earlier position in law as decided in Raj Kumar Karwal -Vs. - Union of India reported in (1990) 2 SCC 409 and held that the officers of the Revenue Intelligence and ipso facto of the Customs Department could not be said to be police officers and a confession before them would not be hit by Section 25 of the Evidence Act. However, Nirmal Singh Pehlwan (supra) clarified that Noor Aga (supra) has been dealt elaborately with the issue of confession before the Customs Officer vis-a-vis Police Officer and this decision has held that it would be proper to follow the ratio in Noor Aga (supra) case. However, the decision is based primarily on the provision of Section 50 of the NDPS Act. The conviction has been set aside for non-compliance of Section 50 of the Act. In our case apart from the confessional statement there are various other materials available on record to hold that the accused is guilty of the offence committed. There is no allegation of non-compliance of the provision of Section 50 of the NDPS Act, in the present case although, the allegation is that confession has been obtained from the accused by the officers but no complaint has been made by the accused subsequent to the recording of confession. No petition has been filed by the accused for retracting the confession made by him. In such a situation simply because it is a confession recorded by the authority there is no reason to doubt the same. This decision does not help the petitioner to argue acquittal.
However, learned advocate for the respondent /Authority has drawn attention of this Court in the decision of Giris Raghunath Mehta -Vs. - Inspector of Customs & Anr. reported in 2016 (344) ELT 803 (SC) where it has been held that there can be no doubt that the Court has to satisfy itself that the statement under Section 67 has been made voluntarily and at a time when the person making such statement, was not made an accused. The Hon'ble Apex Court has also distinguished the view taken in Noor Aga (supra) case.
Submission made by the learned Advocate for the appellant that the confessional statement and its evidentiary value has not been considered by the Court below in its true perspective, particularly, the principles underlying Section 27 of the Evidence Act and therefore, the confessional statement could not have been relied on by the trail Court in convicting the appellant. We have already pointed out earlier that apart from the statement under Section 67 of the NDPS Act which the learned advocate agitated to be a confessional statement, in our view, there are sufficient other materials on record to convict the appellant apart from the statement made by the accused before the Authority under Section 67 of the said Act. That apart there are materials on record to hold that the statements so made under Section 67 of the Said Act are not involuntary statement and particularly that no retraction has been made by the appellant. Those apart the learned advocate for the appellant has insisted upon the Court to accept the principles laid down with regard to the confessional statement as decided by the Supreme court in Noor Aga (supra) case. He submitted that in view of the ratio decidendi in Noor Aga (supra) case there was no scope for the learned trial Court to at all take cognizance of the statement under Section 67 of the said Act. We, however, do not agree to such contention of the learned advocate that Noor Aga (supra) case is to be followed for this purpose. We have, however, come across a decision of the Hon'ble Apex Court in Giris Raghunath Mehta -Vs. - Inspector of Customs & Anr. reported in 2016 (344) ELT 803 (SC) where the Hon'ble Apex Court had occasion to reconcile the view taken in Noor Aga (supra) case and the Hon'ble Apex Court has clearly distinguished Noor Aga (supra) case on the question whether Investigating Officer investigating the matter under the Act is a police officer and whether the statements recorded by the Investigating Officer under Section 67 of the Act can be treated as a confessional statement. Although, the issue was referred to a Larger Bench but the Hon'ble Apex Court dismissed the appeal. Where the appellant took the Court through evidence on record and submitted that conviction and sentence awarded to the appellant was unsustainable. Therefore, the contention by the learned advocate for the appellant that Customs Officers are police officers does not hold good so also his contention that statement made by the accused before the Customs Authority are at par with the statement made before police authority in custody cannot be accepted. Therefore, the appeal fails.
After hearing submissions of the learned advocates for the parties and after giving due adherence thereto and in view of the discussion hereinbefore made, we are of the opinion that the order of conviction passed by the learned Court below does not call for any interference. Submissions made by the appellant that bagged contraband was not seized from the possession of the appellant; the seized contraband was never produced before the learned Court below; no inventory was done; non-examination of the independent witnesses of the seizure and seized contraband was not destroyed during trial do not appeal to us to hold that the prosecution has failed to prove its case beyond reasonable doubt or that the appellant is entitled to be acquitted of the charges brought against him. The appeal therefore, fails. The order of conviction and sentence are hereby confirmed.
Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court.
Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.
I agree.
(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)