27 August 2004
Supreme Court
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UNION OF INDIA Vs MUNNA

Case number: Crl.A. No.-000956-000956 / 2004
Diary number: 16211 / 2003
Advocates: B. KRISHNA PRASAD Vs RAVI PRAKASH MEHROTRA


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CASE NO.: Appeal (crl.)  956 of 2004

PETITIONER: Union of India                                                   

RESPONDENT: Munna and Anr.                                                   

DATE OF JUDGMENT: 27/08/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No. 4126 of 2003  

ARIJIT PASAYAT,J.

       Leave granted.

       The Union of India calls in question legality of the judgment  rendered by a Division Bench of the Allahabad High Court holding that  respondent no.1 (hereinafter referred to as the ’accused’) was not  guilty of the offence punishable under Section 20(b)(2) and Section 23  of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short  the ’NDPS Act’).  The Trial Court i.e. the 1st Additional Sessions  Judge, Sidharthnagar had convicted the accused guilty for the aforesaid  offences, and sentenced him to undergo imprisonment for 15 years and  pay a fine of rupees one lakh with default stipulation.  

Accusations which led to the trial of the accused are essentially  as follows:

On 17.10.1994 at about 6.30 p.m. Inspector of Customs Sri B.K.  Srivastava, Incharge Customs Station Khunwa, District Siddharthnagar,  received an information that a person carrying Charas from Nepal shall  be passing through the Customs Barrier (Khunwa Check Post).   Consequently, Sir B.K. Singh, complainant (PW-1) summoned two  independent witnesses and took position near the Barrier. At about 7.00  p.m. a Jeep bearing No. UTD 5560 was seen coming from Nepal side and  when it reached near the Barrier, the Customs Officer stopped the Jeep  for its checking.  Accused who was the sole occupant of the Jeep  stopped the vehicle. The Customs Officer in presence of witnesses told  the accused that search of his person and the Jeep is to be taken  because there is information that charas is concealed in the cavity of  the Jeep.  He was also informed that if he so desired he shall be taken  before a Gazetted Officer for the purpose of search.  Accused replied  that the Officer may himself take his search and there was no necessity  to take him before any Gazetted Officer.  The Officer along with  witnesses on inspection of the Jeep was satisfied that the Jeep  contained a Cavity.  Subsequently the Jeep along with the accused was  brought to the Customs Office and in the presence of witnesses cursory  search of the Jeep resulted in the discovery of a cavity and from smell  it was clear that in this cavity charas was cleverly concealed.  The  Officer immediately sent Sepoy Sri Saghir Ahmad to Badhni with a  request that Superintendent (Customs) Badhni may come immediately for

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the search of seized jeep which contained charas in its cavity. The  Superintendent came from Badhni early in the morning at about 7.00 a.m.  next day and in his presence the search of the Jeep was conducted and  charas concealed in the cavity weighing 100 Kg. of the value of  Rs.10,00,000/-, was recovered.  Samples were taken out, sealed in  separate packets which contained signature of the accused, witnesses  and the officer and the remaining charas was duly sealed.  Since  transportation of charas was in violation of Section 8 of the N.D.P.S.  Act, the Jeep containing the charas was also seized.              

A Panchnama of the said recovery, interrogation and seizures was  prepared at the spot which were signed by the accused, witnesses and  the Customs Officer.   

The prosecution i.e. Union of India filed the criminal case no.68  of 1994.  

According to the complaint, statements of the accused recorded by  the Inspector and the Superintendent are voluntary statements, and  admissible in evidence.

In his voluntary statements recorded the accused clearly admitted  the time, place and mode of recovery of the seized charas which was  cleverly concealed in the Jeep driven by him.  The statements are Exts.  Ka.2 and Ka.5 on the record.

The Customs Officer duly arrested the accused on 18.10.94 and  produced him before the competent court.  One of the packets of the  sealed sample of this charas was sent to chemical examiner for analysis  and a report from the chemical examiner was received along with the  envelope in which the sample was sent to him.  The report and the  envelope were attached with the complaint and were Exts. Ka-3 and Ka-4.   They were proved by PW-1. The report clearly established that the  article recovered from the possession of the accused was charas.           In order to substantiate the allegations four witnesses were  examined. Sri B.K. Srivastava, Inspector, Customs Station, Mahendra  Singh (PW-2), Superintendent Badhni who had come to the scene of  occurrence on the next day to supervise the recovery.  Sita Ram (PW-3)  @ Laddu is the witness of recovery.  Mantra Prasad (PW-4) is the  Inspector Customs Khunwa.  He was authorized by an order dated  10.11.1994 by his superior officer to conduct the investigation in the  case and prosecute the accused.

On consideration of the evidence on record the Trial Court found  the accused guilty and recorded conviction as aforesaid.  The same was  challenged by an appeal before the Allahabad High Court.  Following  points were urged to assail legality of the judgment.

1.      The accused was not in conscious possession of the contraband  concealed in the vehicle accompanied by the fact that source of  information has not been disclosed.      2.      That there is non-compliance of Sections 42 and 43 of N.D.P.S.  Act. 3.      That the only so called independent witness has not supported the  prosecution case. It casts serious doubt in the recovery of the  contraband. 4.      Failure of investigation to make full report of all particulars  to his immediate superior and non-compliance of procedure laid  under Section 57 of the N.D.P.S. Act, is fatal for the  prosecution.  5.      That no fair and proper option as required under Section 50 of  the N.D.P.S. Act was given to the accused before taking his  search.

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According to the High Court the factual position indicated that  the accused was not the real culprit.  The owner of the vehicle and two  other persons who accompanied the accused for a part of the journey  were real culprits.  It came to hold that the accused only possessed  Rs.150/- at the time of his arrest and he did not run away.  In any  event, the prosecution has failed to prove conscious possession.  It  was also observed that there was violation of Section 42 of the Act.  The High Court felt that instead of accused, the authorities should  have gone after the owner of the vehicle and the other two persons who  were operating the same. The judgment of the Trial Court was set aside.

Learned counsel for the appellant submitted that the High Court  has proceeded on mere surmises and conjectures.  The fact that accused  was the driver and he had Rs.150/- at the time of arrest or that he was  having a salary of Rs.1500/- per month are not relevant for  adjudicating the guilt or otherwise of the accused.  Undisputedly, on  the basis of voluntary statements of the accused recorded by the  Customs authorities, he had knowledge about contraband being carried in  the vehicle.  The two persons to whom the High Court had made reference  were for a short time traveling in the vehicle.  It is true that owner  of the vehicle may have some role to play in the crime but that is not  sufficient to hold that the accused was not guilty.  There was specific  evidence on record about information given to the superior authorities  and the High Court has not considered the same and erroneously  concluded violation of Section 42.  It was therefore submitted that the  High Court was not justified in its conclusions.   

Learned counsel for the State of U.P. supported the stand of the  appellant.  There is no appearance on behalf of the accused in spite of  service of notice.                        

We find that the High Court has not analysed the evidence in it  proper perspective and has acted on surmises and conjectures.  It has  also acted on irrelevant materials leaving out of consideration  relevant matters.  The fact that there was admission of the accused  before the Customs authorities has not been dealt with by the High  Court.  Such admission is not hit by either Section 25 or Section 26 of  Indian Evidence Act, 1872 (in short the ’Evidence Act’). The effect of  such admission was a relevant factor.  Additionally, the effect of  Section 54 which raises presumption from possession has not been  considered and on the contrary, burden has been placed on the  prosecution and it has been held that prosecution was to establish that  the possession was conscious. The effect of the evidence relating to  dispatch of information to the superior authorities has also not been  considered.   

In view of the unsatisfactory analsysis of evidence and erroneous  approach to the statutory prescriptions, we consider this to be a fit  case which needs to be adjudicated afresh by the High Court.  We remit  the matter to the High Court for fresh adjudication in accordance with  law taking into account the evidence on record and applicable  provisions of the governing statute.                                          Appeal is disposed of accordingly.