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CASE NO.: Appeal (crl.)  1201 of 2005

PETITIONER: Ravindran @ John

RESPONDENT: The Superintendent of Customs

DATE OF JUDGMENT: 14/05/2007

BENCH: B.P. SINGH & TARUN CHATTERJEE

JUDGMENT: JUDGMENT

WITH CRIMINAL APPEAL NO.1202 OF 2005 Peter John                                                      \005Appellant  Versus The Superintendent of Customs                   \005Respondent

B.P. Singh, J.

       The appellants herein with one other namely, Hiralal   were tried by the Special District and Sessions Judge, Madurai in  Crime Case No.320 of 2001 charged of the offences under Section 8  (c) read with Sections 22 and 29 of the Narcotic Drugs and  Psychotropic Substances Act, 1985 (hereinafter referred to as the  "Act").  Learned District & Sessions Judge by his judgment and order  dated November 20, 2002 found them guilty of the offences with  which they were charged and sentenced them to undergo rigorous  imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in  default to undergo further rigorous imprisonment for 2-1/2 years.   Each one of the accused aggrieved by the judgment of the Trial Court  preferred an appeal before the High Court of Judicature at Madras.   The Criminal Appeal preferred by the appellant Ravindran @ John  was registered as Criminal Appeal No.1144 of 2003 while the appeal  of Peter John was numbered as Criminal Appeal 14 of 2003.  The  High Court by its impugned common Judgment and Order dated April  2, 2004 upheld the conviction of the appellants but acquitted Hiralal  against whom it found no satisfactory evidence to prove the charges.   The appellants have preferred the instant appeals by special leave.

CRIMINAL APPEAL NO.1201 OF 2005

1.      The facts of the case are that PWs  1 and 2 who were  officials of the Customs Sea Base Party, Tiruchendur on receiving  specific information rushed to the Kayalpattinam Bus Stand at about  3.00 a.m. on December 21, 2000 since there was reliable information  that one person carrying psychotropic substance was to come there.   At the bus stand they found appellant Ravindran and on suspecting  him to be the person concerned they informed him that they are going  to conduct personal search and asked him whether he would like the  search to be conducted before a Judicial Magistrate or a Gazetted  Officer.  The appellant did not insist on his search before a Magistrate  or Gazetted Officer.  He was searched by PWs 1 and 2 in the presence  of two independent witnesses namely, Ravi and Chandrasekar.  The  appellant was found to be carrying a white coloured polythene bag.   On searching the bag one polythene packet was found inside the bag  which was opened in the presence of the independent witnesses.  It  was found to contain white colour powder.  On being asked the

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appellant informed them that the substance was Diazepam.  The same  was, therefore, seized under Mahazar, Ex. P-2.  The packet was sealed  and brought to the Customs Office since there was no facility to weigh  the substance and to prepare samples at the bus stand.  The two  independent  witnesses  also accompanied the appellant and PWs 1  and 2.  On weighing, the substance was found to weigh 1.528  Kilograms.  Two representative samples each weighing 5 grams were  drawn and sealed in two separate covers which were duly packed,  labeled and sealed with the customs seal.  According to the  prosecution the substance seized was worth about Rs.75,000/-.                  2.      The case of the prosecution is that on further questioning  the appellant confessed his guilt and his confessional statement Exb.  P-4 was recorded.  From the confessional statement of the appellant,  the involvement of the other two accused was revealed.  The appellant  was arrested on December 21, 2000 while the other two accused were  arrested on December 23, 2000.  Peter John (co-accused) admitted  that the plastic bag containing white colour powder had been given to  him by his friend Hiralal (co-accused) and that he had handed over the  same to the appellant for sale.

       3.      The report of the Chemical Analyst established that the  sample on being tested showed the presence of Diazepam.   One other  accused namely, Bharat Lal was found involved in the conspiracy.  It  appears that he absconded and therefore his trial was separated.          4.      It was argued before the Trial Court as well as the High  Court that the conviction of appellant Ravindran was not justified in  view of non-compliance with the mandatory provisions of Section  42(2) of the Act.  It was also contended that the independent witnesses  were not examined at the trial and that was fatal to the case of the  prosecution.  The trial was also vitiated for non-compliance with the  mandatory provisions of Sections 50 and 57 of the Act.  The report of  the Chemical Analyst was challenged on the ground that he had not  tested the sample for its components.  The percentage of purity of the  sample was therefore not proved.  The Trial Court as well as the High  Court concurrently held that there was no substance in any of the  grounds urged on behalf of the aforesaid appellant.  Some of those  points have been urged before us as well.  We find no substance in  any of the points urged before us.

5.      The submission that Section 42 of the Act was not  complied with has been rejected by the High Court holding that  Section 42 was not at all attracted to the facts and circumstances of  the case.  It also recorded a finding that even if attracted, it had been  complied with.

6.      We hold that the High Court was right in coming to the  conclusion that Section 42 of the Act was not attracted to the facts of  this case.  In the instant case on information received by PW-2 who  communicated the same to PW-1, the witnesses went to the bus stand  where the person carrying the drug was expected to arrive.  The  appellant was arrested at the bus stand.  The appellant was, therefore,  not searched and arrested in exercise of power of arrest, search, and  seizure under Section 42 of the Act.  Section 42 applies to a case  where the officers concerned on information received, or having  reason to believe from personal knowledge that any offence has been  committed in relation to any drug or psychotropic substance etc. and  which is kept or concealed in any building, conveyance or enclosed  place may, between sunrise and sunset, enter into and search any  building, conveyance or place.  They are also vested with the power of  search and seizure and authorized to arrest the person whom they have  reason to believe to have committed any offence punishable under this  Act.  The facts of this case disclose that the arrest and seizure took  place at the bus stand and not in any building, conveyance or enclosed

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place.   The High Court has rightly held that the case was covered by  Section 43 of the Act which does not require the information of any  person to be taken down in writing.  Similarly, there is no requirement  that the concerned officer must send a copy thereof to his immediate  official superior within 72 hours.  We, therefore, hold in agreement  with the High Court that Section 42 of the Act was not attracted to the  facts of the case.  It is, therefore, unnecessary to burden this judgment  with decisions cited at the Bar regarding the effect of non-compliance  with Section 42 of the Act.

7.      It was then submitted on behalf of the appellant that the  provisions of Section 50 of the Act which are mandatory in nature  were not also complied with.  Reliance was placed on decision of this  Court reported in (1998) 8 SCC 534 Namdi Francis Nwazor Vs.  Union of India and Anr. Learned Additional Solicitor General  appearing on behalf of the Union of India submitted that the aforesaid  judgment of this Court has been explained in a subsequent judgment  of this Court in (2005) 4 SCC 350 State of H.P. Versus Pawan Kumar  in which it has been held that the observations relied upon in Namdi  Francis Nwazor were obiter on this point.  In the later judgment it has  been held as under:-

"A bag, briefcase or any such article or container,  etc. can, under no circumstances, be treated as body of a  human being.  They are given a separate name and are  identifiable as such.  They cannot even remotely be  treated to be part of the body of a human being.   Depending upon the physical capacity of a person, he  may carry any number of items like a bag, a briefcase, a  suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a  carton etc. of varying size, dimension or weight.   However, while carrying or moving along with them,  some extra effort or energy would be required.  They  would have to be carried either by the hand or hung on  the shoulder or back or placed on the head.  In common  parlance it would be said that a person is carrying a  particular article, specifying the manner in which it was  carried like hand, shoulder, back or head etc.  Therefore,  it is not possible to include these articles within the ambit  of the word "person" occurring in Section 50 of the Act".

8.      In the instant case, it is not in dispute that the appellant  was carrying a plastic bag in which the drug in question duly packed  had been kept.  Section 50 is, therefore, not attracted to the facts of  this case.

9.      It was, however, contended before us that PWs 1 and 2  had not informed the appellant of his legal right to get his person  searched in the presence of a Gazetted Officer or a Magistrate.   Merely informing him that he has an option to have his personal  search done in the presence of a Gazetted Officer or a Magistrate was  not sufficient and that he should have been informed of his legal right  to get his personal search done in the presence of a Gazetted Officer  or a Magistrate.  In this connection, reliance is placed on the decision  of this Court in (1999) 6 SCC 1 Pon Adithan Versus Deputy Director,  Narcotics Control Bureau, Madras.  It was, however, brought to our  notice that the question as to whether the accused appellant is not  entitled to be informed of his right to be searched in the presence of a  Gazetted Officer or a Magistrate and that merely being asked as to  whether the accused-appellant would like to be searched in the  presence of a Gazetted Officer or a Magistrate would be sufficient  compliance with the provisions of Section 50 of the Act, has been  referred to a larger Bench of this Court to resolve the conflict of  opinion on the interpretation of Section 50 of the Act. (See (2005) 12

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SCC 574).

10.     In our view this question does not survive for our  consideration because we have earlier held that Section 50 was not  attracted to the facts of this case.  If any drug was recovered from the  personal search of the appellant as explained in Pawan Kumar’s case,  the appellant could advance this argument to challenge his personal  search.  That not being the case, the submission must be rejected.  An  argument was advanced before us that if the search is found to be  illegal that is fatal to the case of the prosecution.  Apart from the fact  that this question does not arise in the instant case, it cannot be said as  a general principle of law that the illegality of the seizure would in all  cases prove fatal to the case of the prosecution.  As held by this Court  in 2006 (9) SCALE 644 Ritesh Chakarvarti Versus State of Madhya  Pradesh although the effect of the illegal search may not have any  direct effect on the prosecution case, it would all the same have a  bearing on the appreciation of evidence of the official witnesses and  other materials depending on the facts of each case.   

11. Learned counsel for the appellant argued that the two  independent witnesses in whose presence he had been searched were  not examined at the trial.  Reliance was placed on an observation  contained in paragraph 28 of the report in (2004) 12 SCC 201 State of  West Bengal and Others Versus Babu Chakraborthy.  In the instant  case it is not disputed that two independent witnesses were associated  when the search was conducted.  The search was, therefore, conducted  in accordance with law.  But it is argued that failure to examine the  two witnesses is fatal to the case of the prosecution.  In our view, this  is not the correct legal position.  Even where independent evidence is  not examined in the course of the trial the effect is that the evidence of  the official witnesses may be approached with suspicion and the Court  may insist on corroboration of their evidence.  In (2000) 4 SCC 465   Koluttumottil Razak Versus State of Kerala this Court observed:-

"In the present case, unfortunately, apart from the  evidence of the police officers there is absolutely  no independent evidence to ensure confidence in  our mind that the search was in fact conducted by  PW \0261 as he has claimed.  As his evidence is  required to be approached with suspicion due to  violation of Section 42 of the Act we may require  corroboration from independent sources that is  lacking in this case".

In (2003) 8 SCC 449 M. Prabhulal Versus Assistant Directorate of  Revenue Intelligence, a similar question was raised in the context of  the provisions of the NDPS Act.   This Court held:

"Next, the 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 V. State of Maharashtra.  In the  decision relied upon while observing that prudence  dictates that evidence of police witnesses needs to  be subjected to strict scrutiny, it was also observed  that their evidence cannot be discarded merely on  the ground that they belong to the police force and  are either interested in the investigating or  prosecuting agency, but as far as possible,  corroboration of their evidence in material  particulars should be sought".    

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       12.     In the instant case we find that the courts below have  critically scrutinized the evidence of the prosecution witnesses  applying the rule of caution and we find no reason to disagree with  their findings.

13.     It was sought to be urged before us that evidence  discloses that the confessions were not made voluntarily.  We  permitted the learned counsel to refer to the material on record and the  concurrent findings recorded by the Trial Court and the High Court.   We have noticed the fact that the confession was subsequently  retracted.  The courts have in our view correctly appreciated the  material on record and have rightly come to the conclusion that apart  from the confession of the appellant Ravindran there was also other  reliable evidence on record to prove his complicity.  We, therefore,  find no merit in this submission.

14.     It was lastly urged that though the Chemical Analyst had  reported the presence of Diazepam, he had not given particulars as to  the proportion in which its components were found.  Counsel for the  appellant placing reliance on the judgment of this Court reported in  (2005) 7 SCC 550 Amarsingh Ramjibhai Barot Versus State of  Gujarat submitted that this may have a bearing on the question of  sentence.  In the instant case, we are concerned with Diazepam.   According to the Notification 20 grams of Diazepam is considered to  be small quantity.   Any quantity in excess of 500 grams is  commercial quantity.  In the instant case 1.528 Kilograms of  Diazepam was found.  In these facts the case is clearly covered by  Section 22 (c) of the Act.  We, therefore, find no merit in any of the  submissions urged on behalf of the appellant Ravindran.  His appeal  fails and is, therefore, dismissed.   

CRIMINAL APPEAL NO.1202 OF 2005

       1.      The appellant in this appeal is Peter John whose  complicity was disclosed in the confessional statement of Ravindran.   The appellant Peter John and Hiralal were arrested at Salem on  December 23, 2000.  They were brought to Madurai where their  confessions were recorded which are Exbs. P-10 and P-11.

2.      In his confessional statement appellant Peter John stated  that the packet in question was given to him by Hiralal (since  acquitted).  Hiralal had told him that he had found the packet  abandoned in the lavatory of a train and that it was a Narcotic drug  and could be sold for profit.  He, further, confessed that he had handed  over the packet to appellant Ravindran for sale.

3.      According to the confession of Hiralal Exb.P-11 he had  got the packet from his friend Bharatlal (absconding accused No.4).   He did not know the address of Bharatlal whom he had known for  about a year and a half.  He further admitted that he had handed over  the contraband to Peter John for sale.  

4.      The prosecution relied upon the confessional statements  to implicate the appellant as well as Hiralal.  The defence on the other  hand contended that Exb. P-10 and P-11 were obtained after  prolonged custody since Custom Officials arrested them in Salem and  later brought them to Madurai.  It was also submitted that the  confessional statements were subsequently retracted and, therefore, no  reliance could be placed on them.  The confessional statement of a co- accused could not be used as substantive evidence against the co- accused.

5.      The High Court in its impugned judgment and order has  found that the only piece of evidence against Hiralal, A-3 was the

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confessional statement of the co-accused which could not be used  against him and which was not sufficient to sustain the charge of  conspiracy.  It further noticed that according to Hiralal the contraband  had been given to him by Bharatlal and in turn he handed over the  same to appellant Peter John.  The High Court observed that if he had  really handed over the contraband to Peter John he would have  certainly made enquiries about the sale of the contraband.  Moreover,  there is no mention about appellant Ravindran in his confessional  statement.  No doubt he admitted that he used to enquire from time to  time as to whether the article had been sold, but the High Court  concluded that that was not sufficient to establish the link between A- 3 and A-2, much less the conspiracy between A-1, A-2 and A-3  namely, Ravindran, Peter John and Hiralal.  The High Court also  observed that the Court would not ordinarily act upon a retracted  confession to convict the co-accused without corroboration in material  particulars.    

6.      The High Court, however, distinguished the case of  appellant Peter John holding that it was he who instructed Ravindran  to go to the bus stand at Kayalpattinam on December 21, 2000 with  the contraband.  Moreover, appellant Ravindran and Peter John  belonged to the same village.  Appellant Peter John had brought the  contraband from Salem to be handed over to Ravindran.  Lastly, Peter  John was frequently contacting Ravindran to know about the sale of  the contraband.     

       7.      It is not in dispute that the facts which have been relied  upon by the High Court are culled out from the confession of Peter  John.  The question is whether the confessional statement of appellant  Peter John is sufficient to uphold his conviction particularly when the  same has been retracted and there is no other reliable evidence to  convict him.  In our view the benefit extended to Hiralal ought to be  extended to appellant Peter John as well.  The High Court did not find  the confession of the co-accused reliable enough to be used either  against him, or his co-accused.  Appellant Peter John and Hiralal were  arrested and brought to Madurai together and their confessions were  recorded.  The High Court has not considered it safe to act on the  confession of Hiralal and acquitted him of the charge leveled against  him.  If the confession of Hiralal could not be used against him,  certainly it could not be used against appellant Peter John a co- accused.  Both the confessions were recorded one after the other.   While in the confession of appellant Peter John it was stated that  Hiralal had told him that he had found the packet abandoned in a  running train, Hiralal in his confessional statement stated that he had  received the packet from his friend Bharatlal and he had handed over  the same to appellant Peter John.  The High Court has not accepted  this part of the prosecution story because in that event Hiralal would  have been found guilty of having conspired to commit the offence or  at least could have been found guilty of abetment since he had  admitted that he had received the packet from Hiralal and handed over  the same to appellant Peter John for sale.  In these circumstances, the  evidence that remains against the appellant Peter John is rather slender  and it is not safe to uphold his conviction on such evidence,  particularly when the person who is supposed to have given him the  contraband has been given the benefit of doubt by the High Court.   The charge against appellant Peter John is one of conspiracy to  commit offences under the Act.  The High Court has not accepted the  involvement in the conspiracy of Hiralal who in his confessional  statement claimed to have handed over the contraband to appellant  Peter John.  If the confessional statement of Hiralal is discarded, there  remains no evidence except his own confession to implicate the  appellant Peter John.  The High Court did not find it safe to act on the  retracted confession of Hiralal.  The confession of the appellant was  also recorded by the same team of officers at about the same time.  

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The appellant also retracted his confession.   

8.      In these circumstances we are of the view that appellant  Peter John is also entitled to the benefit of doubt.  We, accordingly,  allow his appeal and set aside his conviction and sentence.  He shall  be released forthwith unless required in connection with any other  case.