Patna High Court
Birendra Kumar Sharma vs Union Of India on 15 March, 2013
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1052 of 2011
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Birendra Kumar Sharma
.... .... Appellant
Versus
Union Of India
.... .... Respondent
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Appearance :
For the Appellant : Mr. Vinay Ranjan, Advocate &
Mr. Aaruni Singh, Amicus Curiae.
For the Respondent : Mr. Binay Kumar Pandey, C.G.C.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
Oral JUDGMENT
Date: 15-03-2013
The appeal arises out of the judgment of conviction dated
26.03.2011passed in D.R.I. Case No.18 of 2003 by the learned 7 th Additional Sessions Judge-cum-Special Judge, NDPS Act, Muzaffarpur. The trial court after holding the appellant guilty by the aforesaid order passed the order of sentence on 30.03.2011.
2. The appellant, Birendra Kumar Sharma has been convicted under Section 20(b) and 23 of the NDPS Act, 1985(For short „the Act‟) and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- under Section 20(b) of the Act. In lieu of default of payment of fine, he has been further directed to undergo S.I. for one year. He has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- for the offence under Section 23 of the Act. In lieu of default of payment of fine, he has been further directed to Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 2 undergo S.I. for one year. However, both the sentences have been ordered to run concurrently.
3. The prosecution case is based on a complaint filed by one Rakesh Ranjan, Intelligence Officer, Directorate of Revenue Intelligence, Muzaffarpur(for short „DRI‟) on 01.10.2003 in the court of Sessions Judge, Muzaffarpur.
4. The prosecution case, in brief, as per complaint(Ext-4) dated 01.10.2003, is that on the basis of specific information on 04.07.2003 at 6.30 p.m., the complainant Rakesh Ranjan(P.W.1) along with other members of the preventive team intercepted oil tanker bearing registration no.W.B.73-4053 near Khagra Gumti, Kishanganj, Bihar. Two persons from the gathered passerby were requested to witness the search proceeding. Considering safety reason, the witnesses were requested to accompany the team to DRI office, Muzaffarpur for which they agreed. The oil tanker along with driver and independent witnesses were brought to DRI office, Muzaffarpur. They reached Muzaffarpur at 9 a.m. on 05.07.2003 and search of the said tanker was conducted in their presence. A secret chamber specially designed and built between the two chambers of the oil tanker was opened in presence of driver and independent witnesses. In all, 35 poly bags containing Charas(Hashish) were recovered and on weighment, total weight of Hashish came to 745 Kgs. gross, i.e., 715 Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 3 Kgs.(net), which was seized under Section 42(c) for violation of Section 8(c) of the Act and the aforesaid oil tanker used as mode of conveyance of transportation of said Hashish was also seized under Section 42(c) of the Act as the same was liable for confiscation under Section 60(3) of the Act.
5. The appellant, after being intercepted, made his voluntary statement under Section 67 of the Act before independent witnesses and admitted his guilt as regards his conscious involvement in trafficking of Charas(Hashish) from Nepal. He was arrested under Section 42(d) of the Act and was forwarded to Judicial Custody on 05.07.2003. In his confessional statement recorded under Section 67 of the Act, he had disclosed that he was working as an agent of, Sandeep Singh, son of Baldeo Singh, resident of Pandipari, Siliguri, West Bengal, who, at the relevant time was residing at Biratnagar, Nepal. He further disclosed that the above said consignment was secreted in the said oil tanker near Narain Ghat, Nepal in presence of said Sandeep Singh and was to be delivered at Alampur, West Bengal. He further stated that he had carried Hashish from Nepal in the said oil tanker on several occasions in past and delivered to persons of Indore( MP) Oraiyyo and Muradabad (UP) and Delhi.
6. The sample of the seized Hashish was sent for chemical analysis to the Director, Central Revenue Control Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 4 Laboratory, Pusa, New Delhi wherein it was reported by the chemical examiner, CRCL vide endt.f. No.1/ND/R/2003, CLD-1997(W) on 30.07.2003 that the sample under reference was Charas(Hashish).
7. The matter was referred to Enforcement agencies at Kolkata, Siliguri, Lucknow, Amritsar, Jammu to conduct follow up action in the case. The investigation conducted on the basis of the statement tendered by the appellant did not yield any fruitful result. All the addresses disclosed by the appellant were found to be incorrect. In course of follow up action conducted by the officers of Narcotic Control Bureau(For short „NCB‟), Jammu, the declared address of the appellant tendered at the time of interception as resident of village-Jatihai, P.S. Gani, district-Udhampur, Jammu & Kashmir was found to be fake.
8. The appellant was re-interrogated in the judicial custody on 24.09.2003 after obtaining permission from the trial court wherein he disclosed his address as resident of village-Khuddu, P.O. Sonari, P.S.Rambal, district-Udhampur(J & K) and he further disclosed the name of recipient of the seized Hashish as Yadav Jee of Kanpur having phone no.0551-22350454 and Indrapal Pradhan of Manipura, UP. He also stated that previously he delivered Hashish to a person, namely, Hansh Kumar, son of Kalicharan Goswami, resident of Indira Nagar, Kanpur. The disclosed address of the appellant was Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 5 verified by the officers of the NCB and was found to be correct. The further case of the prosecution is that Senior Intelligence Officer, DRI, Siliguri, reported that the above said oil tanker was registered in the name of Sri Sandeep Singh, son of Baldeo Singh, resident of Panjabi Para, West Bengal but said Sandeep Singh could not be located on the above said address.
9. On the basis of the aforesaid complaint, the learned Sessions Judge, Muzaffarpur vide order dated 02.12.2003, took cognizance of the offence against the appellant under Sections 20(b), 23 and 25 of the Act. The trial court, thereafter, framed charges under Section 20(b) and 23 of the Act against the appellant to which he pleaded not guilty and claimed to be tried.
10. In course of trial, the prosecution has examined as many as eight witnesses in order to prove the charges, out of which, P.W.1 Rakesh Ranjan, an Intelligence Officer, DRI, Muzaffarpur, is the complainant. P.W.2 Rajesh Kumar Srivastava, Intelligence Officer, DRI, Muzaffarpur, P.W.3 Indra Deo, Hawaldar, DRI, Muzaffarpur, P.W.4 Sanjiv Kumar Mishra, P.W.5 Akshay Kumar Mishra, both P.Ws.4 and 5 Sepoys, DRI, Muzaffarpur, P.W.6 Babu Lal Paswan, Casual Worker, DRI, Muzaffarpur and P.W.7 Dipak Kumar, Senior Intelligence Officer, DRI, Muzaffarpur are members of the prosecution party. P.W.8 Ramashanker Kumar, is the only Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 6 independent witness examined on behalf of the prosecution. He is a witness to the seizure list and recovery memo. He has proved his signature over them which have been marked as Ext-1/1 and 1/2.
11. Besides the oral evidences, the prosecution has adduced documentary evidences in support of the charges against the appellant which are as under:-
(i) Seizure memo, Ext-1,
(ii) Recovery memo, Ext-2,
(iii) Statement of the appellant dated 24.09.2003 recorded under Section 67 of the Act, Ext-3,
(iv) Complaint petition, Ext-4,
(v) Certification by a Judicial Magistrate of the inventory so proposed by the Incharge Inspector Godown, Customs, Ext-5 and
(vi) Test Memo of Forensic Science Laboratory, Ext-6.
12. Apart from the oral and documentary evidences, the prosecution has also proved the packet in which the representative sample of the contraband was sealed and the same has been marked as material Ext-A in course of trial. It is relevant to note here that P.W.1 has proved Ext-1 to Ext-4 whereas Ext-5 has been proved by P.W.7. The Judicial Magistrate, in whose signature the certification was done has not been examined in course of trial.
13. The appellant has not adduced any oral or Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 7 documentary evidence in support of his innocence in course of trial. However, he has pleaded his innocence while being examined under Section 313 of the Code of Criminal Procedure. He has stated that nothing was seized by the members of the prosecution party from his possession. He has also stated that his signature on the confessional statement recorded by the officials of customs was taken under pressure.
14. It is to be noted here that the appellant is in custody since the date of occurrence, i.e., 05.07.2003. Initially, the memo of appeal of the appellant was forwarded to this Court by the jail authorities. Since it was a Jail appeal, by order dated 19.09.2011, Mr. Aruni, an Advocate, was appointed as Amicus Curiae to defend the appellant. It appears that subsequently, Mr. Vinay Ranjan, an Advocate was engaged by the appellant through Vakalatnama.
15. P.W.1 Rakesh Ranjan has deposed in his examination-in-chief that on 05.07.2003, he was posted as Intelligence Officer, DRI, Muzaffarpur. On that day, on receipt of a secret information, he went to Kishanganj along with other officials of Customs Department. He has further stated that on the basis of the information received by him, he intercepted a tanker at 6 p.m. and on search found 35 packets containing Charas weighing 715 Kgs. net. At that time, the appellant was driving the tanker. He has further stated Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 8 that the seizure list was prepared in the office. According to him, P.W.2 Rajesh Kumar Srivastava had also signed on the seizure list. He further stated that the appellant made his confessional statement on 24.09.2003 which was duly recorded and the appellant had put his signature over the same. The sample of the seized material was drawn and sent for chemical examination. He has proved the seizure memo, recovery memo, confessional statement dated 24.9.2003 and the complaint.
16. P.W.2 Rajesh Kumar Srivastava has deposed that he was posted at Intelligence Office, DRI Office, Muzaffarpur on 04.07.2003. On the basis of secret information, the tanker in question, was intercepted at Khagra Gumti, Kishanganj on 4.7.2003 itself. The tanker and two independent witnesses were brought from Kishanganj to Muzaffarpur. The search and seizure were conducted on 05.07.2003 by P.W.1 Rakesh Ranjan. In all, 35 poly bags containing 715 gms. net Hashish, were recovered. Sample was drawn. According to him, it was the appellant alone who was found driving the vehicle at the time of interception.
17. P.W.3 Indra Deo, P.W.4 Sanjiv Kumar Mishra, P.W.5 Akshay Kumar Mishra and P.W.6 Babu Lal Paswan have also corroborated the statement made by P.W.2 Rajesh Kumar Srivastava. However, P.W.6 has gone a bit far in saying that the appellant had Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 9 admitted at Kishanganj itself that he was transporting Hashish. P.W.2 to 6 have consistently stated that the tanker was brought to Muzaffarpur from Kishanganj along with the appellant and the two seizure list witnesses and they could reach Muzaffarpur at about 9 a.m. on 05.07.2003.
18. P.W.7 Dipak Kumar has stated that on 02.07.2003 he was posted at DRI Office, Muzaffarpur as senior Intelligence Officer. According to him, on 02.07.2003 itself a confidential information was received by P.W.2 Rajesh Kumar Srivastava regarding transit of the contraband Hashish by the tanker in question. On that information, a preventive team was constituted consisting of P.W.1 to P.W.3. The information was sent to the senior officer at Patna and the raiding team rushed to Kishanganj on jeep. On 04.07.2003, while the team was camping at Kishanganj, the tanker in question was intercepted near Khagra Gumti, Kishanganj at about 7 p.m. In cross-examination, he has admitted that the secret information was received by P.W.2 Rajesh Kumar Srivastava. He has also admitted that he was senior to Rajesh Kumar Srivastava but P.W.2 Rajesh Kumar Srivastava never informed him in writing about receipt of any confidential information. He further admitted that he was not intimated about the search and seizure even after the entire formalities of search and seizure were conducted at Muzaffarpur. He admitted that the Customs Department Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 10 has its office at Kishanganj and Purnea and in between Kishanganj and Muzaffarpur there are many police stations. He also admitted that the sample was drawn on 05.07.2003 in absence of any Magistrate.
19. P.W.8 Rama Shankar Kumar is a seizure list witness. As noted above, he was requested by the Customs Officials at Kishanganj to be a witness to the search and seizure for which he agreed. He was brought from Kishanganj to Muzaffarpur for the purposes of being a witness. He has proved his signature on the seizure list. In cross-examination, he has stated that it took two days at Muzaffarpur to complete the formalities of the search and seizure. On query, he failed to disclose the exact number of packets seized by the members of the raiding team from the secret chamber of the tanker. He also failed to disclose weight of the recovered packets. He further admitted that samples were drawn from two or three packets only and he could not say about the contents of the other packets which were never opened before him.
20. I have heard Mr. Aruni, learned Amicus Curiae, Mr. Vinay Ranjan, learned counsel for the appellant and Mr. Binay Kumar Pandey, learned Central Government Counsel for the Union of India.
21. Learned counsel appearing on behalf of the appellant and the learned Amicus Curiae, in support of the appeal, submitted:-
Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 11
(i) The so called confessional statement made by the appellant before the customs officials on 05.07.2003 has not been brought on record.
(ii) The subsequent confessional statement dated 24.09.2003 was admittedly taken while the appellant was in judicial custody and thus the purported confessional statement of the appellant before the customs authorities is wholly inadmissible in evidence being hit by Section 25 of the Evidence Act.
(iii) P.W.7 Dipak Kumar, Special Intelligence Officer, a member of the raiding team in his examination-in-chief itself stated that secret information regarding the transit of the contraband was received by P.W.2 Rajesh Kumar Srivastava, an Intelligence Officer, on 02.07.2003. He admitted in cross-examination that secret information was reduced into writing by Sri Rajesh Kumar Srivastava(P.W.2) but the same was never intimated to him in writing. However, according to him, it was brought to his notice orally. P.W.7 further admitted that he was senior to Mr. R.K.Srivastava but the seizing Officer did not inform him in writing even after the search and seizure were made.
(iv) The legal requirements of Section 42 of the Act have not been complied with. The witnesses examined on behalf of the prosecution have admitted that the secret information regarding Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 12 concealment of contraband in the chamber of the tanker was never transmitted to the senior officer.
(v) The witnesses examined on behalf of the prosecution have contradicted each other in material particulars.
(vi) The author of the recovery memo is not known.
(vii)The witnesses have admitted that customs has its office at Kishanganj and Purnea but the vehicle in question was taken from Kishanganj to Muzaffarpur at a distant place with ulterior motive for the purposes of search and seizure.
(viii)The manner in which the search and seizure has been conducted makes the entire criminal prosecution of the appellant highly suspect.
(ix) The prosecution has alleged that it seized 35 packets of contraband but the sample was taken only from two or three packets and thus the seizure of 35 packets of contraband could not be proved.
(x) The material exhibits were never produced in the court.
(xi) The Judicial Magistrate in whose presence certification of inventory was made has been examined.
(xii) Out of the two seizure list witnesses only one has been examined and there is no explanation for the non-examination of Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 13 the other one.
22. Per contra, the learned counsel for the Union of India submitted:
(i) The learned trial Judge after having examined the oral and documentary evidences found sufficient material to establish the charges.
(ii) The officials of the customs made search and seizure in a transparent manner and as such even if the secret information was not reduced in writing or transmitted to the superior officer in terms of Section 42 of the Act, the same would not vitiate the trial.
(iii) The confessional statement of the appellant recorded in jail was voluntary one and, as such, the trial court has rightly relied upon the same for convicting the appellant.
(iv) The official witnesses had no enmity with the appellant and as such there was no occasion for them to implicate him in a false case.
23. Before embarking upon the rival submissions on behalf of the parties as noticed, hereinabove, it would be appropriate to record herein that the prosecution witness nos.1,3, 4, 5 and 6 were not cross-examined by the defence. From the record, it appears that the counsel for the appellant refused to cross-examine those witnesses for want of instruction.
Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 14
24. In a criminal case an accused should not suffer for default of his counsel and in such a situation, the court should appoint another counsel as Amicus Curiae to defend the accused. In case, the duly appointed counsel declined to appear due to negligence or deliberately even then the court should not have proceeded with the trial without appointing any counsel to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 of the Constitution which guarantees protection of life and liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. In the present case, I am of the considered opinion that the trial of the appellant has been held in gross violation of the principle of the natural justice. There is patent and flagrant error in holding the trial which has resulted in manifest injustice. Ordinarily this Court would have remanded the matter back for re-trial but, for the reasons to be recorded hereinbelow, I do not think it necessary to remand the matter back for fresh trial.
25. From the evidence as discussed, hereinabove, apparently, the complainant has given a different date of occurrence from what has been mentioned in the complaint petition. In the complaint petition, it has been stated that the tanker in question was seized on 04.07.2003 but when the complainant was examined in Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 15 court, he has stated that he received a secret information regarding transit of the contraband on 05.07.2003 and on the same day, the tanker was intercepted at the place of occurrence. Apart from contradicting his own version made in the complaint, he has contradicted other witnesses who have stated that the tanker in question was intercepted on 04.07.2003 in the evening at about 6.30 p.m. I further notice from the evidence that the witnesses other than the complainant have stated that the search and seizure were conducted at about 9 a.m. on 05.07.2003 but the only seizure list witness who has been examined in this case has stated that the process of search and seizure continued for two days at Muzaffarpur.
26. I further find that P.W.7 Dipak Kumar has stated that the secret information was received by P.W.2 on 02.07.2003. However, when P.W.2 Rajesh Kumar Srivastava was examined in court, he has not stated a word about receipt of any secret information by him. Further, P.W.7 Dipak Kumar has clearly admitted that the secret information received by P.W.2 was never recorded in writing. He also admitted that no written information was ever given to him by P.W.2 in this regard. He has admitted that he was senior to P.W.2 in the official capacity.
27. In my view, if the secret information was received by P.W.2 Rajesh Kumar Srivastava on 02.07.2003 itself, there was Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 16 enough time to reduce the same in writing and report to the immediate superior officer. There is nothing on record to suggest that any such information was ever written or communicated to any superior officer.
28. At this stage, it would be relevant to refer to Section 42 of the Act which reads as under:-
"42 Power of entry, search, seizure and arrest without warrant or authorization.--(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer(being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and
(d) detain and search, and if he thinks proper, arrest and Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 17 person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
29. In Abdul Rashid Ibrahim Mansuri Vrs. State of Gujrat since reported in (2000)2 SCC 513 a three Judge Bench of the Apex Court held that compliance with Section 42 of the Act is mandatory and failure to take down the information in writing and forthwith send a report to immediate superior officer would cause prejudice to the accused. In Sajan Abraham Vrs. State of Kerala since reported in (2001)6 SCC 692 a three Judge Bench of the Apex Court held that Section 42 was not mandatory and substantial compliance was sufficient. The conflicting opinions regarding the scope and applicability of Section 42 of the Act is no more res integra and stand answered by a Constitution Bench judgment of the Apex Court in Karnail Singh Vrs. State of Haryana since reported in (2009)8 SCC 539. In the said judgment, the Apex Court noticed, if there is total non-compliance with requirements of sub-Sections(1) and (2) of Section 42, the same would be impermissible. However, Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 18 delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The Apex Court in paragraph-35 of the judgment in Karnail Singh(supra) held as under:
"35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 19 of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."
30. From the evidence as discussed, hereinabove, apparently, there is absolute non-compliance with the provisions of Section 42 of the Act and in view of Constitution Bench judgment of the Apex Court in case of Karnail Singh(supra), the conviction of the appellant would be unsustainable.
31. However, before parting, I would like to take up the other points argued by the parties. The case of the prosecution is that the appellant had confessed his guilt on 05.07.2003. However, the confessional statement of the appellant which is alleged to have been recorded on 05.07.2003 is not on record. Admittedly, the subsequent confessional statement which has been brought on record as Ext-3, was recorded on 24.09.2003 while the appellant was inside jail. Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 20 Clause(3) of Article 20 of the Constitution provides that no person accused of any offence shall be a compelled to be a witness against himself. The burden of proving that such a confession was made voluntarily would, thus, be on the prosecution. In the facts and circumstances of the present case the alleged confessional statement would certainly be violative of Article 20(3) of the Constitution of India and would also be hit by Section 25 of the Evidence Act. As such, no reliance can be placed on such confessional statement.
32. I further find substance in the arguments advanced on behalf of the appellant that the prosecution has failed to account for 32 packets of the contraband alleged to have been seized from the secret chamber of the tanker. The only seizure list witness(P.W.6) examined on behalf of the prosecution has categorically stated that samples were drawn from 2-3 packets only and he did not know about the contents of the other packets alleged to have been seized by the officials of customs. The other witness to the seizure has not been examined. There is no explanation for his non-examination.
33. From the evidence of P.W.7 Dipak Kumar it stands admitted that the samples were drawn in the absence of any Magistrate.
34. Another important aspect of the case is that the tanker was seized at Kishanganj. I take judicial notice of the fact that Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 21 Muzaffarpur is far away from Kishanganj. It is at a distance of not less than 350 Kilometer from Kishanganj. P.W.7 Dipak Kumar, has admitted in cross-examination that the DRI has its office at Kishanganj and Purnea. I also take judicial notice of the fact that Purnea falls in between Kishanganj and Muzaffarpur. I find no reason as to why the tanker was taken to Muzaffarpur for search and seizure. If for any reason, the search was to be conducted at a safe place, the raiding team would have taken the tanker to its office at Kishanganj itself and not to a distant place at Muzaffarpur. The tanker was admittedly in possession of the members of the raiding team for the whole night. The entire exercise of the prosecution in conducting the search and seizure was not fair.
35. The Act seeks to achieve control of illegal trade in narcotics which have a detrimental defect on the society, and therefore, contains stringent provisions. Under the normal criminal jurisprudence a person is presumed to be innocent unless proved guilty. Section 35 of the Act presumes a culpable mental state on the part of the accused. The onus lies on the accused to prove the fact that he had no such culpable intension. The courts have therefore leaned heavily in favour of a strict interpretation of the provisions of the Act. Even, such provisions of the Act which have been held to be directory by the courts, have been held to have their own relevance in the given Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 22 facts and evidence available in a case, to the extent of vitiating the prosecution case.
36. When I look to the relevant provisions of the Act, governing the procedure to be followed after seizure, are to be found in Sections 52, 53, 55 and 57 of the Act. The prosecution cannot totally ignore those provisions and, as such, failure will have bearing on appreciation of evidence regarding the veracity of the prosecution case. Section 52 of the Act has been inserted by the Act of 2 of 1989 with effect from 29.05.1989. Section 52A of the Act reads as follows:-
"52-A. 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 substances 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 Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 23 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 purposes 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."
37. Section 52A of the Act comes into play after recovery of the contraband item. What is curious to note in the present case is the guidelines given in the Act has been given in a complete go bye the prosecuting agency. The certification of inventory as contained in Ext-5 has not been proved by the Judicial Magistrate who has certified the correctness of the inventory. Further the certification by the Judicial Magistrate as contained in Ext-5 reads as follows:-
"I R.P.Asthana, Ist Judicial Magistrate, Magistrate (sic) here by certify that the inventory so proposed by the I/C Inspector godown Customs Division, Muzaffarpur, of the above records(sic) case are true to the best of my knowledge."
38. Thus, from a plain reading of the certification made Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 24 by the Judicial Magistrate, it is apparent that certification was made by the Judicial Magistrate of the inventory so proposed by the Incharge Inspector Godown, Customs Division, Muzaffarpur. It is certainly not an inventory in terms of Section 52A of the Act.
39. I find that Ext-5 does not show the quality, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they were packed, country of origin or other particulars as required in terms of Section 52A(2) of the Act.
40. I further find that photographs of the drugs or substances so seized were never taken. Even, the representative samples were not drawn in presence of any Magistrate. The seized contraband was never produced in the court. The entire action of the prosecution in conducting the search, seizure, sampling etc. is contrary to the mandate of law.
41. For the reasons recorded, hereinabove, despite noticing the fact that the trial of the appellant was violative of Article 21 of the Constitution, I do not think it necessary to remand the matter back for re-trial as the appellant is entitled to be acquitted even otherwise.
42. Above being the position, the judgment of the trial court cannot be sustained. In the result, the judgment of conviction Patna High Court CR. APP (SJ) No.1052 of 2011 dt.15-03-2013 25 dated 26.03.2011 and the order of sentence dated 30.03.2011 passed by the learned 7th Additional Sessions Judge-cum-Special Judge, Muzaffarpur in D.R.I. Case No.18 of 2003, are set aside. The appellant, who is in jail custody, be released forthwith, if not wanted in any other case.
(Ashwani Kumar Singh, J) Patna High Court, Dated 15th March, 2013.
Brajesh Kumar/NAFR