S. B. Yadav v. Mohammed Hussain Farah — 1997 DIGILAW 564 (BOM)

JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---This is an appeal against acquittal of the 1st respondent filed by Shri S.B. Yadav, Assistant Director, Directorate of Revenue, Intelligence, Bombay through the Public Prosecutor for Union of India. 2. The 1st respondent was acquitted for offence under section 8(c) read with sections 21, 23, 28 and 29 of N.D.P.S. Act and under section 135(1)(a) read with 135(1)(ii) of Customs Act. By the impugned judgment passed in N.D.P.S. Special Case No. 214/88 and N.D.P.S. Special Case No. 828/88 dated 11th September, 1995 by the Additional Sessions Judge and Special Judge (Under N.D.P.S.) for Greater Bombay. 3. Originally there were 3 accused against whom the charges were framed under the above sections. Accused, Md. Ahmed Asir and Farah Glow Ahmed since absconded, against Accused No. 2 only the trial Court proceeded with the trial. Accused No. 2 Md. Hussain Farah is the 1st respondent in this appeal. After trial, the 1st respondent was found not guilty and acquitted by the trial. Hence, this appeal. 4. According to the prosecution case, when the 1st respondent (accused No. 2) was about to board the Gulf Airways Flight No. GF-009, he was found in possession of the narcotic drugs, the hereoin weighing 8.200 gms. on 20th July, 1987. A team of D.R.I. Officers and Officers from N.C.B., on the basis of information, intercepted the 1st respondent and other accused who passed through customs. The officers examined the baggages of the accused in the presence of panch witnesses and others. Accused identified the checked in baggages in the presence of panch witnesses. During the examination of the hand baggage of the present accused facing the trial, five big size surf boxes of detergent powder and one small box of surf detergent powder were found in which the narcotics were concealed in the blue coloured detergent powder. During the examination of absconded accused No. 1, 4 boxes of surf detergent powder and one Baby Johnson powder tin was recovered which contained the brown coloured powder purported to be heroin weighing 4,400 Kgs. During the search of the checked in baggage of the 1st respondent, nothing was recovered. Officers also took custody of the documents found in possession of the accused of the 1st respondent. During the search of the checked in baggage of the 1st respondent, nothing was recovered. Officers also took custody of the documents found in possession of the accused of the 1st respondent. After the narcotic drugs were found, samples were taken and sealed in the presence of panchas and sent for C.A. After the drugs were seized, the 1st respondent and other accused were taken to the office of the N.C.B. situated in Exchange Building at Ballard Pier and produced before the Assistant Director Shri R.N. Kakkar, who was Assistant Director of D.R.I. The Assistant Director, after serving the summons under section 108 of the Customs Act, the statement of 1st respondent and other accused were recorded. After statement was recorded, the accused were arrested on 21-7-1987 and produced before the Court on 22-7-1987. According to Analyst Report, the substance which was recovered was found to be narcotic drugs covered under section 2(xvi)(e) of Chapter 1 of N.D.P.S. Act. 5. During the trial, in all two witnesses were examined on behalf of the prosecution and several documents were produced. One witness was examined on the defence side. After oral evidence were recorded, charges were framed against the accused. Statements under section 313 of Cri.P.C. were also recorded. In that statement the 1st respondent denied the commission of offence. He further stated that statement purported to be made under section 108 of the Customs Act was signed by him, which was of pre-prepared statement, out of compulsion. He also stated that he was severely tortured at the hands of N.C.B. officers. 6. The Court below has rightly held that the procedure contemplated under section 50 of the N.D.P.S. Act has not been complied with, while recovering the drugs from the 1st respondent. Admittedly, the formalities under section 50 has not been complied with. Arguments of the learned Counsel appearing for the Union of India Mr. Thakur is that the recovery of drugs was from the hand bag of the accused and not from the person and therefore, the procedure prescribed under section 50 of N.D.P.S. Act need not have to be observed. In that respect trial Court was wrong in acquitting the accused. Arguments of the learned Counsel appearing for the Union of India Mr. Thakur is that the recovery of drugs was from the hand bag of the accused and not from the person and therefore, the procedure prescribed under section 50 of N.D.P.S. Act need not have to be observed. In that respect trial Court was wrong in acquitting the accused. This contention has to be rejected in view of the decision of this Court and the Supreme Court, in the case of (Namdi Francies Nwazor v. Union of India and another)1, 1996(4) SCALE (SP) 45 that the Supreme Court has held that person is carrying a hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with section 50 of the Act. This has followed by this Court by Division Bench of this Court to which one of us (T.K. Chandrashekhara Das, J.,) was a party in Criminal Appeal No. 204 of 1995 dated 24-9-1997. When a contraband article is recovered in the hand bag of a Air passenger, it has to be treated as recovery from the person who is found to be in possession of the bag. Following this principle, admittedly the contraband articles was admittedly recovered from the bag that was carried by the 1st respondent and no formalities under section 50 has been complied with. Therefore, the trial Court was right in basing the judgment of acquittal for non-compliance of section 50 of the Act. 7. It is then contended by Mr. Borulkar learned A.P.P. that even if the section 50 is not complied with, the trial Court ought not have acquitted 1st respondent, because there are other materials sufficient for the Court to convict the 1st respondent. He pointed out that the 1st respondent has made confessional statement recorded under section 108 of the Customs Act, and that statement would have good ground for convicting the 1st respondent. He further submits that the accused has not produced any evidence to nullify the effect of confessional statement of the accused under section 108 of the Customs Act. He pointed out that the 1st respondent has made confessional statement recorded under section 108 of the Customs Act, and that statement would have good ground for convicting the 1st respondent. He further submits that the accused has not produced any evidence to nullify the effect of confessional statement of the accused under section 108 of the Customs Act. He also cited the decisions of the Supreme Court in the case of (K.I. Pavunny v. Assistant Collector (Head Quarter) Central Excise Collectorate, Cochin)2, reported in J.T. 1997(2) S.C. 120 and argued that the statement made by the accused is admissible in evidence and can form sole basis for conviction even if it is retracted as occurred in this case. Even in that judgment, the Supreme Court has held that retracted confessional statement of the accused can form the sole foundation of a conviction. In that case, Supreme Court was surveying of the decisions of the Supreme Court on the subject right from 1952. However, in K.L. Pavunny's case (supra) based on facts of that case it was held by the Supreme Court that the confessional statement though retracted could be a base for conviction. But it is to be noted, that the Supreme Court has very clearly laid down the norms on which such statements could be appreciated. "In Pavunny's case Supreme Court in Para : 33 held "it is true that in criminal law, as also in civil suits, the trial Court and the Appellate Court should marshal the facts and reach conclusion, on facts in a criminal case, the prosecution has to prove the guilt beyond doubt. The concept of benefit of doubts is not a charter for acquittal. Doubt of a doubting Thomas or of a weak mind is not the road to reach the result, if a Judge on objective evaluation of evidence and after applying relevant test reaches a finding that the prosecution has not proved its case beyond reasonable doubt, then the accused is entitled to the benefit of doubt for acquittal. The question then is whether the learned Single Judge of the High Court has committed any error of law in reversing the acquittal by the Magistrate. Not every fanciful reason that erupted from flight of imagination but relevant and germane requires tested. Reasons are the soul of law. Best way to discover truth is through the interplay of view points. The question then is whether the learned Single Judge of the High Court has committed any error of law in reversing the acquittal by the Magistrate. Not every fanciful reason that erupted from flight of imagination but relevant and germane requires tested. Reasons are the soul of law. Best way to discover truth is through the interplay of view points. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth trans. On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant Exh. P/4 to be a voluntary one and that it could form the basis for conviction." 8. Therefore, we have to examine whether trial Court was right in rejecting the confessional statement made by the respondent No. 1 on the ground, it was retracted. Retracted statement in this case makes the confessional statement very weak as material evidence to establish guilt of the accused. In view of the observation made by the Supreme Court, it is essentially necessary for a Court to deal the confessional statement and the statement made in retraction of the confession. It depends upon the facts of each case. It has come out in this case, the accused did not know English. He knew only Arabic purported statements to have been recorded in English. The trial Court noted the fact, the prosecution has not properly explained as to who interpreted and translated the statements to the accused. The evidence in this regard is very doubtful and shabby even though the P.W. 1 has stated that one Iqubal had translated the statement to the accused. But the said Iqbal could not be traced and the prosecution was not able to furnish of the Iqbal. It has also come in evidence that the statement was recorded on 21-7-1987 which is extracted due to assault and compulsion. But the said Iqbal could not be traced and the prosecution was not able to furnish of the Iqbal. It has also come in evidence that the statement was recorded on 21-7-1987 which is extracted due to assault and compulsion. In order to establish that the statement was extracted through duress and threat, it has come out under the letter of addressed by the Addl. C.M.M., 8th Court, Esplanade Bombay through the Superintendent, Central Prison Bombay, the Chief Medical Officer, Bombay Central Prison, Bombay. This letter intimates that the 1st respondent has made a complaint before the Magistrate when he was produced on 21-7-87 that the statement made by him out of physical assault and threat and on the basis of this complaint it appears that the Magistrate has referred the respondent on 24-7-1987 to the Doctor and Doctor by his letter dated 5-8-1987 examined 1st respondent and found the traces of physical assault on the person of the accused. On examination of the person of the accused the medical officer noted the following injuries : 1) Contution 1" x 1" or (Lt) Foream 2) Tendermant over spine T12-L1 region 3) Tendsures over (Lt) shoulder region 4) Tendsures over (Rt) I like region Therefore, this two important circumstances viz. non-examination of the Arabic translator even if providing the details of the Arabic translator and the complaint made by the accused before the Magistrate about the threat either physical or mentally advanced to respondent No. 1 as evidenced by a letter written by the Additional C.M.M. dated 24th July, 1987 and the observation made by the Doctor in person of accused 29-7-1997 observation made by the Medical Officer would definitely go to show that the confessional statement made by the respondent No. 1 cannot be relied upon as a foundation for the conviction. The effect of confessional statement made before the Customs authorities by the accused has been found to be negatived by the retracted statement. Therefore, the retracted confessional statement cannot be made use of for convicting the accused. 9. In view of the above discussion, we cannot accept the contention of the learned A.P.P. Mr. The effect of confessional statement made before the Customs authorities by the accused has been found to be negatived by the retracted statement. Therefore, the retracted confessional statement cannot be made use of for convicting the accused. 9. In view of the above discussion, we cannot accept the contention of the learned A.P.P. Mr. Borulkar that the materials available in this case is not sufficient enough to establish guilt of the accused; of course, it is true that the trial Court had no occasion to examine the legal effect of the retracted confessional statement made by the 1st respondent , because the trial Court has acquitted the 1st respondent on the ground of non-compliance of section 50 of N.D.P.S. Act, as indicated above. On examination of the materials in this case we do not find any reason to interfere with the judgment of the Court below. The prosecutor has not made out any case to interfere the order of acquittal passed by the trial Court. 10. In the result, this appeal fails and it is therefore dismissed. 11. We are told that in furtherance of the proceeding taken under section 390 I.P.C. against the respondent at the time of admitting the appeal, respondent is in Jail as bail was refused by the trial Court. Since we have dismissed the appeal, we direct the appellant-State to release the respondent forthwith unless he is required in any other case. Appeal allowed.