Calcutta High Court (Appellete Side)
Mursaleen Mohammad vs Union Of India on 19 June, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 513 of 2017
with
CRAN 5540 of 2017
Mursaleen Mohammad
-Vs-
Union of India
For the appellant : Mr. Manjit Singh, Adv.
Mr. Pawan Kumar Gupta, Adv.
For the Union of India : Mr. Somnath Ganguli, Adv.
Mr. Bhaskar Prosad Banerjee, Adv.
Mr. Sudipta Ghosh, Adv.
Heard on : 19.06.2018
Judgement on: 19.06.2018
Joymalya Bagchi, J. :-
With consent of the parties, this appeal is taken up for hearing, dispensing
with preparation of paper books as the lower court records are produced before
this Court.
The appeal is directed against the order dated 17th April, 2017 passed by
the learned Additional Sessions Judge, 6th Court, Barasat, for commission of
offences punishable under Sections 21(b) & 23(b) of the NDPS Act and North 24-
Paraganas in N.D.P.S. Case No. N 28/2012 convicting the appellant under
sections 21(b) & 23(b) of the NDPS Act and sentencing him to suffer rigorous
imprisonment for seven years and to pay a fine of Rs.75,000/- in default to suffer
simple imprisonment for five months for commission of offence punishable under
section 21(b) of the NDPS Act and to suffer rigorous imprisonment for seven
years life and to pay fine of Rs.75,000/- and in default to suffer further simple
imprisonment for five months for commission of the offence punishable under
section 23(b) of the NDPS Act. Both the sentences shall run concurrently.
The prosecution case, as alleged, against the appellant is to the effect that
on the basis of secret information the appellant was apprehended on 10th
February, 2012 at NSCBI Airport departure area while he was about to leave for
Hongkong via Dhaka availing flight no BG-092. He was intercepted while he was
proceeding towards the immigration counter after obtaining his boarding pass.
As the movement of the appellant was suspicious he was detained by the Air
Intelligence Unit (in short A.I.U) officials and was taken to A.I.U room for
interrogation. He voluntarily cancelled his journey. On interrogation, the
appellant denied he was carrying any contraband. As the A.I.U officials were
suspicious due to the movements and/or behaviour of the appellant they did not
rely on his version and made prayer before the learned Chief Judicial Magistrate,
Barasat to permit them to conduct X-ray of his abdomen. After obtaining
permission, he was taken to X-ray centre for conducting X-ray of his abdomen.
On receiving X-ray plate and report of the Radiologist, A.I.U officials found a
suspicious white shadow in the abdomen of the appellant. The appellant was
kept detained under surveillance at the A.I.U office. On 11.02.2012 in the
morning when he expressed desire to go to the toilet he was taken to the toilet at
the arrival area of the airport. From his stool allegedly 49 pieces of bullet shaped
capsules were recovered. On examination of the said capsules some brown
colour sticky substance was found. The substance was wrapped in insoluble
plastic. Contents of the capsules were tested with the detection kit and the
material tested positive for Hashish. On 12.02.2012 the appellant was again
taken to X-ray centre and X-ray was done of his abdomen but nothing was
found. Total weight of the capsules including the contraband was 400 gms. The
said contraband articles were seized and samples were drawn from the bulk.
After serving of notice under Section 67 of the NDPS Act, the statement of the
appellant was recorded and on the basis of his statement he was arrested on
13.02.2012. Subsequently, complaint was filed against the appellant under sections 21(b) & 23(b) of the NDPS Act. Charges were framed under the aforesaid sections against the appellant. He pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined as many as nine witnesses and exhibited a number of documents including the purported voluntary statements of the appellant. The defence of the appellant was one of innocence and false implication in the course of trial. The appellant retracted his statements during trial claiming that he had been made to sign various blank papers during his detention at the airport. In conclusion of trial, the trial judge by order dated 17th April, 2017 convicted and sentenced the appellant, as aforesaid.
Mr. Singh, learned Counsel appearing for the appellant submitted that the procedure contemplated under Section 103 of the Customs Act to recover contraband articles secreted inside the body from a suspect has not been followed in the instant case. He submitted that no order was obtained from the Magistrate to recover the contraband secreted inside the body of the appellant in terms of Section 103 (6) of the Act. No consent had also been taken from the appellant for such action to bring out the goods. Alleged recovery of contraband from the body of the appellant was not done in presence of a registered medical practitioner. It is further submitted that the mandatory provision of Section 50 of the N.D.P.S. Act had also not been followed. He further submitted that the statements of the appellant while in the custody of the A.I.U officers were not voluntary and the appellant had been made to sign in blank papers during his detention at the airport. The appellant had retracted the statements during trial. He also submitted that the said statements had not been proved in the facts of the case. He relied on Customs vs. Juarah & Anr., 246 (2018) DLT 635. He accordingly prayed for acquittal.
Mr. Banerjee, learned Counsel appearing for Union of India submitted that it would be evident from Ext.11 (statement of the appellant recorded on 10.2.2012) that the appellant had agreed to have X-ray of his abdomen and due permission was also obtained from the Magistrate in that regard. X-ray report showed that there was suspicious substance inside the stomach of the appellant and even before the authorities could obtain permission from the learned Magistrate, the appellant passed stool resulting in recovery of the capsules containing hashish. In the factual matrix of the case, the question of obtaining permission under Section 103 (6) of the Customs Act did not arise. The appellant had repeatedly admitted his guilt in his voluntary statements recorded on 11.2.2012, Ext.18, on 12.2.2012, Ext.6 and on 13.2.2012, Ext.10. Hence, the appeal is liable to be dismissed.
P.W.1, Sisir Kr. Ghosh is the Superintendent of Customs (Preventive). He deposed that on 10.2.2012 he was posted at A.I.U as Superintendent. On that day, he received a secret information and accordingly special watch was done in the departure hall for passengers who were going to Hongkong by availing flight of Bangladesh Airlines. On the basis of source information the appellant was intercepted. He had already checked in and had obtained boarding pass. He was asked whether he was carrying any contraband either in his bag or in his person. He replied in the negative. As his physical appearance and behaviour were suspicious and they had specific information that he was carrying contraband, he was detained in the room of A. I. U. He voluntarily cancelled his trip and expressed willingness to remain with A.I.U officers. In the presence of two witnesses, his body and baggage was searched but no incriminating article was found. He did not accept that he was carrying contraband. He was produced before the learned Chief Judicial Magistrate and prayer was made to conduct X- ray of his body. Learned Chief Judicial Magistrate granted permission. The appellant was taken to X-ray Unit near Airport where X-ray of his whole abdomen was done. From the X-ray report, it became clear that some suspicious article was in his stomach. He was taken to the office of A.I.U. and was kept under surveillance. Next morning at 6.30 a.m. he wanted to relieve himself and he was taken to the toilet. At that time two independent persons were called and in their presence and also in presence of officers, he passed stool on the floor of the toilet in the arrival hall. Along with the stool he ejected 49 bullet shaped capsules. The gross weight of the said capsules was 400 gms. Inside each capsule deep brown colour sticky substance was found covered in insoluble plastic. The said sticky brown substance was tested with drug detection kit and tested positive for Hashish. The recovered articles were seized under the provisions of the N. D. P. S. Act as well as the Customs Act. The exact weight of the contraband capsules was 375 gms. A search list was prepared and a Panchnama was also prepared. On 12.2.2012 in the evening he was again taken to the same clinic for X-ray of his abdomen. From the X-ray report, they came to know that there was no more foreign body in his abdomen. On 13.2.2012 in presence of the independent witnesses two sets of samples containing four capsules each were prepared. Two sample packets and the packet containing the main bulk were sealed and labelled and was duly signed by the witnesses, the accused and the officers of Customs. The appellant was arrested under Section 43 of N. D. P. S. Act. On 13.2.2012, he was produced before the Court and remanded to custody. He proved the petition which was filed before the Court, Ext.1 and his signature thereon. He proved the copy of the order of the Magistrate permitting X-ray on the body of the appellant, Ext.2. X-ray was done on 10.2.2012 at the Airport X- ray Clinic. As per report of X-ray, there was a suspicious white shadow in his abdomen. The report and the X-ray plate were marked Ext.3 collectively (with objection). On 11.2.2012, the appellant passed stool and ejected 49 bullet shape capsules and thereafter another X-ray was done which showed no abnormality. X-ray report and the plate were marked as Ext.4 collectively (with objection).
P.W.2, Subimal Dhara deposed that on 10.2.2012 he was posted at NSCBI Airport as Superintendent of Customs, A.I.U. He has corroborated the evidence of P.W.1 with regard to the apprehension of the appellant, conducting X-ray of his abdomen pursuant to the order of the learned Magistrate and the recovery of the 49 pieces of bullet shaped capsules containing hashish from his excreta. On 11.2.2012, he issued summons on the appellant for interrogation. He proved the summons, Ext.5. In response to the summons, the accused made voluntary statement which was typed by B. Bhattacharjee in his presence. He proved the statement marked Ext.6.
In cross-examination, he stated that the accused did not make his statement either in English or in Hindi. The accused could not read or write in English or in Hindi. It is not mentioned in the statement that in which language the statement was made. It was not communicated to the accused that he might leave without giving statement. It is not stated in Ext.6 that the accused had made the statement voluntarily.
P.W.3, Debashis Chowdhury was another Superintendent of Customs who was posted at NSCBI Airport on that day. He corroborated the evidence of P.W.1 and P.W.2 with regard to the interception of the appellant as well as conducting X-ray of his abdomen pursuant to the order of the learned Magistrate and the recovery of 49 capsules from his abdomen. He issued summons to the appellant which was proved, Ext.9. He stated that the appellant made a statement before an officer in his presence. He proved his signature on the report, Ext.10.
P.W.4 Ramanuj Das was posted as Superintendent at NSCBI Airport on 11.2.2012. He deposed that upon interception, the appellant had made a statement on 10.2.2012 which was recorded by him, Ext.11.
P.W.5 Sailapati Bhattacharjee was an Air Customs Officer who was posted at NSCBI Airport. He has corroborated the evidence of the other A.I.U officers. He stated that he arrested the accused and proved the arrest memo and inspection memo.
In cross-examination, he stated that he recorded the statement of the accused. He admitted that the accused was ignorant in English but was accustomed to Bengali and Hindi language.
P.W.6 Subhas Ch. Das was in-charge of the godown of Air Intelligence Unit at NSCBI Airport. Upon instruction of the seizing officer he prepared the test memo. He proved the signature in the said memo, marked Ext.13. He sent 49 capsules to the Chemical Laboratory at Customs House.
P.W.7 Mrityunjoy Mistry deposed that he was posted at Customs House Laboratory, Kolkata on 16.2.2012. On that day, he received sample for chemical examination for test memo. In the said sample packet there were 8 lac seals which were intact. The samples were tested by his junior Partha Sarathi Karmakar in his presence. Charas was detected in the samples. He proved the report, Ext.14.
P.W.8 Amit Kumar Mishra was posted at NSCBI Airport as Customs Officer. He lodged the complaint as per official records. The said complaint was marked as Ext.15.
P.W.9, Amitava Lahiri was posted at N.C.B.I. Airport at Air Intelligence Unit as Preventive Officer. He has corroborated the evidence of interception of the appellant, the permission of learned Magistrate making X-ray of the abdomen of the appellant and the recovery of 49 capsules from his stool on 11.02.2012. He also deposed that subsequent X-ray was conducted over the body of the appellant. On 13.2.2012, he arrested the appellant. He further deposed that he was present at the time of recording of statement of the appellant and he was directed to communicate the statement to the appellant in Hindi. He was not present at the time of recording of other statements. He proved the statement of the accused which was typed by him and read over to the appellant in Hindi (Ext18).
These are the evidences on record.
It is contended that 49 capsules containing charas were obtained from the stool of the appellant on 11.2.2012 at 6.30 A.M. while he was in the custody of A.I.U officials. I find that the appellant had been intercepted at N.C.B.I. Air Port by A.I.U Officials on 10.2.2012. It appears from their evidence that the appellant was interrogated but he denied that he was carrying any contraband. His person as well as baggage and parcel were searched but no recovery could be effected. Owing to his suspicious conduct, A.I.U officers apprehended that the appellant was carrying contraband. The A.I.U Officials wanted to subject the appellant to X-ray examination. It is contended on the selfsame day, a statement of the appellant was recorded (Ext.11) by P.W.4. In the said statement, while denying that he was carrying contraband, the appellant agreed to subject himself to an X-ray examination. Subsequently, prayer was made before the Chief Judicial Magistrate for holding X-ray of the abdomen of the appellant. Application before the Magistrate and the order passed thereon have been duly exhibited. Pursuant to such permission X-ray was conducted of his abdomen at a nearby X-ray Centre and the X-ray report has sought to be exhibited with objection in the instant case. It is pertinent to note that neither the Radiologist nor any person in charge of the aforesaid X-ray unit has been examined to prove the X-ray report or the X-ray plate. On the next morning, it is claimed that the appellant wanted to relieve himself and in the course of passing stool 49 capsules were ejected from his abdomen which contained black sticky substance which tested positive for hashish. Capsules were seized and upon chemical examination tested positive to charas. It is relevant to note that no subsequent permission of the Magistrate was obtained to undertake suitable action under Section 103(6) of the Customs Act to recover contraband secreted inside the body of the accused. Furthermore, recovery of the contraband was not before a registered medical practitioner. It has been strenuously argued by the learned counsel for the Department that the capsules were ejected while the appellant was passing stool in normal course on the next morning. There was no scope for obtaining permission of the learned Magistrate under Section 103(6) of the Act. It has also been argued that the appellant had consented to holding X-ray of his abdomen in Ext.11. Not only that in the voluntary statements namely Ext.6, 13 & 18 he clearly admitted his guilt before the A.I.U officers.
Let me examine the aforesaid issues raised in the instant case in the factual matrix of the case.
Customs officers including the officers of the Air Intelligence Unit are empowered to investigate offences under the NDPS Act and are vested with all the powers of an officer-in-charge of a police station for the purpose of such investigation in terms of Section 53 of the NDPS Act. When a customs officer undertakes investigation of offences under the NDPS Act he is not only governed by the provisions of Customs Act but also by the provisions of the NDPS Act.
Search of a person under the NDPS Act is governed by Section 50 of the said Act. However, the aforesaid provision relates to search of the physical body of a suspect and does not advert to the procedure which is to be adopted for an intrusive search inside the body of the suspect like X-ray etc. Provision in that regard is delineated in Section 103 of the Customs Act which reads as follows:
"Power to screen or X-ray bodies of suspected persons for detecting secreted goods.-
(1) Where the proper officer has reason to believe that any person referred to in sub-section (2) of section 100 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before the nearest magistrate.
(2) A magistrate before whom any person is brought under sub-section (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person. (3) Where any such magistrate has reasonable ground for believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed, he may make an order to that effect. (4) Where a magistrate has made any order under sub-section (3), in relation to any person, the proper officer shall, as soon as practicable, take such person before a radiologist possessing qualifications recognized by the Central Government for the purpose of this section, and such person shall allow the radiologist to screen or X- ray his body.
(5) A radiologist before whom any person is brought under sub-section (4) shall, after screening or X-raying the body of such person, forward his report, together with any X-ray pictures taken by him, to the magistrate without unnecessary delay. (6) Where on receipt of a report from a radiologist under sub-section (5) or otherwise the magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction:
Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner. (7) Where any person is brought before a magistrate under this section, such magistrate may for the purpose of enforcing the provisions of this section under such person to be kept in such custody and for such period as he may direct. (8) Nothing in this section shall apply to any person referred to in such section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods."
The aforesaid provision lays down the procedure that a customs officer is required to follow to conduct X-ray of the body of the suspect for detecting and/or recovering contrabands secreted inside his body. Such procedure may be summarised as follows:-
(a) Firstly, the customs officer must entertain reason to believe in the facts of the case that the suspect has secreted contraband in his body.
(b) On the basis of such reasonable belief, he has to produce the suspect before a Magistrate and make a prayer for holding X-ray of his body. On such application the Magistrate must record his satisfaction that there are reasonable grounds to believe that the suspect has secreted goods in his body and upon recording satisfaction shall permit the body of the suspect to be screened or X-rayed.
(c) Pursuant to such order the suspect shall be taken to a qualified radiologist and X-
ray shall be performed on his person. The radiologist after conducting screening or X-ray of the body shall forward the report along with X-ray plates to the Magistrate without delay.
(d) On receipt of such report of the radiologist, the Magistrate upon recording satisfaction that the suspect has goods secreted in his body which is liable to be confiscated, shall direct suitable action for bringing out such goods on the advice and under supervision of a registered medical practitioner. The suspect may be kept in the custody pursuant to the order of the Magistrate for affecting such recovery.
(e) Such procedure may be waived when the suspect admits that he has secreted contraband in his body and voluntarily submits himself to suitable action for bringing out such contraband.
The procedure described above calls for magisterial intervention not only for the purpose of holding X-ray of the body of the suspect but also requires magisterial permission for undertaking suitable action for recovery of the contraband secreted inside the body upon receipt of report of the radiologist.
Initial magisterial permission for conducting X-ray of the suspect is not a substitute of the subsequent magisterial sanction for undertaking suitable action to bring out the contraband in the presence of a registered medical practitioner upon receipt of the X-ray report. Accordingly, consent of the suspect for conducting X-ray of his body cannot be treated to be a valid consent under sub-Section (8) of Section 103 to waive the necessity of magisterial permission for undertaking suitable action for bringing out the contraband in presence of a doctor upon receipt of the X-ray report. Thus, consent of the appellant in Ext.11. to conduct X-ray in the instant case does not absolve the authorities to follow the procedure adumbrated in sub-sections (5) & (6) of the said section for bringing out the goods secreted inside the body of the suspect.
In the facts of the instant case, I find that the radiologist who purportedly conducted X- ray of the abdomen of the suspect has neither been examined nor had he sent his report along with X-ray plates to the Magistrate for suitable action as contemplated under the said provision of law. On the other hand, X-ray plates along with report of the radiologist were produced by P.W.1. Radiologist was not examined in the instant case and in my considered opinion it cannot be said that the report of the radiologist along with X-ray plates was duly proved.
It is trite law that mere production of a document is not proof of its contents. The radiologist who conducted the X-ray and prepared the report ought to have been examined to prove the same, more particularly when such report had not been admitted in the course of trial by the defence.
The opinion of the radiologist and the X-ray plates are the live-links between the reasonable belief of the officers and the discovery of contraband inside the body of the appellant which was subsequently alleged to be recovered. Failure to prove the said link, that is, discovery of contraband inside the body of the suspect beyond reasonable doubt snaps the chain culminating in the recovery of the said contraband from the excreta of the suspect and destroys the very substratum of the prosecution case.
In this backdrop, I hold that the prosecution has failed to prove that it had followed the procedure laid down under Section 103 of the Customs Act for recovery of contraband secreted inside the body of the appellant. I have already discussed why the purported consent recorded in Ext. 11 is not a valid consent under Section 103(8) of the Customs Act. Such consent was for the purpose of holding X-ray of the body of appellant and would not absolve the responsibility of the authorities under Section 103 of the Customs Act from forwarding the report of the radiologist to the Magistrate and proving the same in accordance with law before undertaking suitable action in terms of magisterial permission for recovery of contraband secreted inside the body of the appellant.
Finally, it has been argued that as the recovery of the narcotic substance secreted inside the body of the appellant was in ordinary course of passing stool and that too in the morning of the very next day after radiological examination was conducted, there was no scope for obtaining of order under Section 103(6) of the Customs Act. Procedure entailing recovery of Narcotics/ contraband from the body of the suspect requires invasion into the physical body of the suspect and an encroachment into his privacy. Such exercise being invasive in nature must not only be in strict compliance of statutory safeguards as contemplated in Section 103 of the Customs Act but also must be in consonance to the dignity of the suspect and ought not involve any cruel, degrading or inhuman treatment lest such procedure runs fowl of Article 21 of the Constitution. In Selvi v. State of Karnataka, (2010) 7 SCC 263, the Apex Court held that invasive investigational techniques like lie detection tests, brain mapping etc. are not only violative of right against self-incrimination under Article 20(3) but also an infringement of mental privacy and dignity as they amount to cruel, degrading and inhuman treatment violative of Article 21 of the Constitution. It is also no longer res integra that privacy of an individual is a fundamental right under Article 21 of the Constitution [see Justice K.S Puttaswamy (Retd) and Anr. vs. Union Of India, (2017) 10 SCC 1]. Hence, "suitable action" contemplated in sub section (6) of section 103 of the Customs Act for recovery of contraband inside the body of a suspect must not only be in accordance with the procedure established by law but also be compatible to the dignity of the individual and ought not subject him to cruel, inhuman treatment. Admittedly in the instant case, radiologist's report was not forwarded to the magistrate nor the latter's permission obtained for undertaking suitable action for bringing out the contraband from the body of the appellant. On the other hand, appellant was kept detained in the A.I.U office under surveillance till it is claimed that he defecated resulting in ejection of the contraband. It is contended as the ejection of the contraband was through normal metabolic process compliance of Section 103 of the Customs Act was neither applicable nor feasible. It appears from the evidence of the prosecution witnesses that on receipt of X-ray report, the appellant was kept under surveillance at the A.I.U office till he defecated on the next morning allegedly ejecting the contraband from his body. Perusal of the order dated 10.02.12 of the Magistrate permitting X-ray of the abdomen of the appellant shows that the A.I.U officers were directed to produce the appellant with X-ray report immediately after screening and the officers were directed to extend medical aid to the appellant while in detention. Although X-ray was done on that day, no explanation is forthcoming why the appellant with the said report was not produced before the Magistrate on that day itself. Further, the appellant was not under medical supervision where he was under surveillance at the A.I.U office in spite of direction for medical aid given by the Magistrate. Hence the procedure followed by the A.I.U officials in keeping the appellant under surveillance in their office without producing him before the Magistrate immediately upon screening on the selfsame day and/or failing to extend medical supervision to him during his detention and alleged recovery while in their custody is not only violative of the statutory scheme but also an infringement of his fundamental right to just, fair and humane procedure contemplated under Article 21 of the Constitution. Apart from the aforesaid infractions of law, the alleged recovery of contraband in the instant case appears to have been made shrouded in secrecy and is sought to be proved only on the basis of the uncorroborated version of the A.I.U officials. Although P.W. 1 claimed that such recovery was made in the presence of two independent witnesses, no independent witness was examined to prove such fact. Entire process of alleged recovery took place within the closed confines of the A.I.U office while the appellant was in the custody of the said officials. No medical aid or supervision was extended to him during his detention or at the time of alleged recovery. Hence, I am of the opinion that it is most unsafe to rely on the mere ipse dixit of the A.I.U officials to come to a finding that narcotic substance was recovered from the excreta of the appellant particularly when such exercise was done without magisterial permission, bereft of medical supervision and was not supported by independent witnesses.
Lastly, coming to the purported statements of the appellant recorded on 11.2.2012 (Ext.18), 12.2.2012 (Ext.6) and 13.2.2012 (Ext.10), I find that none of the said statements relied by the prosecution have been proved beyond reasonable doubt. Ext. 18 was purportedly recorded on 11.2.2012 in the presence of P.W.9 (Amitava Lahiri) and P.W.5 (S. Bhattacharya). Although P.W.9 claims that he recorded and read over the said statement to the appellant in Hindi, his version is not corroborated by P.W.5 (S. Bhattacharya). With regard to the purported statement recorded on 12.2.2012 (Ext.6) I note that there are number of discrepancies. P.W.2, who claimed to be present at the time of recording of the statement, stated that it is not mentioned in the statement in which language the appellant made such statement. It is also not recorded in the statement that the appellant had made such statement voluntarily. P.W.5, the recording officer, did not state in his deposition that he had read over and explained the statement to the accused, who did not know to read or write English (the language in which the statement was written). It is also important to note that an independent witness, who is claimed to have been present at the time of recording of the said statement and had allegedly read over and explained the same to the appellant, has not been examined in the instant case.
Finally, with regard to Ext. 13 I find that the said statement has not been proved at all. Only the signature of one of the A.I.U officials namely, P.W.3 (Debasish Chowdhury) endorsed thereon had been proved.
It has been argued that the aforesaid statements had not been retracted promptly by the appellant. I find that during his examination under section 313 CrPC, the appellant had stated that he was made to sign blank papers while in custody. It is contended that he was unaware that such signed papers had been converted into statements purportedly made by him. However, it is evident from the trend of cross-examination as well as his statement under Section 313 Cr.P.C. that he had disowned making the said statements and had retracted them during trial.
Be that as it may, it is the duty of the prosecution to prove the purported voluntary statements of the appellant beyond reasonable doubt in order to enable the court to come to a finding of guilt on the sole basis of such statements. The aforesaid discussion of the evidence of the prosecution witnesses with regard to the said statements leaves no doubt in one's mind that the evidence in that regard is too flimsy and contradictory to inspire confidence.
Hence, I hold that the aforesaid statements claimed to be made by the appellant have not been proved beyond reasonable doubt and I do not consider it prudent to rely on such statements to come to a finding of guilt against the appellant.
Conviction and sentence imposed on the appellant is, accordingly, set aside.
The appeal is allowed.
Application being CRAN 5540 of 2017 is also disposed of.
Appellant shall be released from custody forthwith upon execution of a bond to the satisfaction of the trial court which shall continue for six months in terms of Section 437A of the Code of Criminal Procedure.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)