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2002 DIGILAW 441 (PNJ)

Monica Christy Chikwa v. State Of Punjab

2002-04-24

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. This order will dispose of Criminal Appeals 223-SB and 259-SB of 1996 as these arise out of same judgment of the conviction and sentence and have been preferred by the same person. 2. Appellant herein has been convicted and sentenced under sections 21 and 23 of the Narcoic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Appellant had filed Criminal Appeal No. 223-SB of 1996 through counsel, but against the same judgment of conviction and sentence, she also preferred Criminal Appeal No. 259-SB of 1996 through jail. Since Criminal Appeal No. 223-SB of 1996 has already been preferred against the same conviction and sentence. Criminal Appeal No. 259-SB of 1996 is dismissed as not maintainable and Criminal Appeal No. 223-SB of 1996 is being disposed of on merits. 3. The Inspector Customs, Land Customs Station, Attari Road, Amritsar filed a complaint alleging that on 2.4.1995 at 4 P.M., the appellant entered India via Pakistan through Land Customs Station, Attari Road, Amritsar. She presented herself with her baggage at joint check post. Her baggage was screened through x-ray and sniffer dog. Thereafter she appeared at counter No. 2 for examination. She was asked to declare the contents of her baggage and whether she was carrying any prohibited goods. She replied in the negative. Her baggage was examined and for her personal search, she was taken to a room adjoining to the baggage hall by Vandna Rikhi, Lady Inspector. On being asked to take out her purse which was tied to her waist, she became nervous and rushed towards toilet and threw a packet from her purse in the toilet. Vandana Rikhi Inspector shouted and snatched her purse on which J.M. Bhatia, Superintendent, Customs, Land Customs Station, Attari Road, Amritsar, complainant Mohinder Singh Inspector Customs and other staff members rushed to the room. On search of the purse carried by the appellant, two bundles cylindrical in shape wrapped with black adhesive tape were found. Bawa Singh sweeper was called and asked to search the toilet by putting his hands inside the hole of the toilet. Bawa Singh took out a bundle wrapped with black adhesive tape from the toilet which was similar in appearance to the other two bundles. Bawa Singh sweeper was called and asked to search the toilet by putting his hands inside the hole of the toilet. Bawa Singh took out a bundle wrapped with black adhesive tape from the toilet which was similar in appearance to the other two bundles. On physical examination the contents of the bundlers appeared to be heroin and on being tested with the help of drug kit, the same was found to be heroin. On weighing, the contents recovered from the bundles were found to be 410 gms. Three samples were taken weighing five gms. from each bundle. The samples as well as the remaining brown powder were sealed with seal No. 82. Recovery memo (Exhibit PA) was prepared which was also attested by the appellant. A copy of recovery memo was given to the appellant under the signatures. Panchnama was also prepared. The appellant made a voluntary statement admitting that she had brought heroin from Pakistan and her statement was recorded after explaining the provisions of section 108 of the Customs Act, 1962 (for short 1962 Act) which is Exhibit PB. The samples were sent through Bikram Singh, Inspector Customs for depositing in the Central Revenue Control Laboratory, New Delhi which were delivered there on 4.4.1995 with seals intact. Vide report dated 24.4.1995 Exhibit PF, the Assistant Chemical Examiner opined that each of the three samples was of brown powder and answered positive for diacetyl morphine. 4. Complainant Mohinder Singh Inspector Customs, appeared as PW-1 while Vandna Rikhi, Lady Inspector appeared as PW-2. J.M. Bhatia, Superintendent appeared as PW-3 and Bikram Singh Inspector Customs appeared as PW-4. Appellant was examined under section 313 Cr.P.C. She denied the allegations and took a plea that recovery was effected from some other person but was planted on her by the customs staff. She further stated that the articles recovered from her i.e. 500 US dollars, one Yashica camera and three emergency lights etc. were not shown. PW-1 Mohinder Singh and PW-2 Vandna Rikhi supported the averments in the complaint about recovery from the appellant. PW-3 J.M. Bhatia, Superintendent Customs also supported the prosecution case besides proving the recording of statement Exhibit PB of the appellant without any threat, promise or inducement. PW-4 Bikram Singh Inspector Customs stated that duly sealed samples were handed over to him at about 8 PM on 2.4.1995 which he took to Delhi. PW-3 J.M. Bhatia, Superintendent Customs also supported the prosecution case besides proving the recording of statement Exhibit PB of the appellant without any threat, promise or inducement. PW-4 Bikram Singh Inspector Customs stated that duly sealed samples were handed over to him at about 8 PM on 2.4.1995 which he took to Delhi. He reached Delhi on 3.4.1995 at 4.45 PM and deposited the samples in the Revenue Control Laboratory on 4.4.1995 with seals intact. He also stated that so long as the samples remained in his custody, no body tampered with the same. 5. The Additional Sessions Judge, Amritsar held that the prosecution had proved its case beyond reasonable doubt and therefore, held the appellant guilty under Sections 21 and 23 of the Act and sentenced her to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac on each count. In default of payment of fine, the appellant was ordered to undergo further rigorous imprisonment for six months. Both the sentences were, however, ordered to run concurrently. It was also held that provisions of section 50 of the Act did not apply as recovery was not from the person but from the purse. Moreover, it was a case of a chance recovery to which section 50 did not apply. It was also held that non-handing over of seal to an independent witness and non-examination of independent witnesses was not fatal to prosecution case. It was also held that statement made by the appellant before J.M. Bhatia, Superintendent was admissible in evidence. 6. Counsel for the appellant submitted that conviction and sentence awarded to the appellant are liable to be set aside as section 50 of the Act was applicable and the same had not been complied with. It was submitted that it was not a case of chance recovery but of recovery on the basis of some information. It was stated that if there was no information, there was no question of employing sniffer dog and taking the appellant for examination in the searching room. It was also submitted that from the stage suspicion arose, procedure laid down under the N.D.P.S. Act was required to be followed as held by the Supreme Court in State of Punjab v. Baldev Singh, 1999(3) RCR 533 : 1999(6) Supreme Court Cases 172, para 24. It was also submitted that from the stage suspicion arose, procedure laid down under the N.D.P.S. Act was required to be followed as held by the Supreme Court in State of Punjab v. Baldev Singh, 1999(3) RCR 533 : 1999(6) Supreme Court Cases 172, para 24. Counsel for the appellant further submitted that though independent witnesses were joined, they were given up as having been won over which should be held to be fatal to the case of the prosecution in view of judgments of this Court in Bhoolan v. State of Punjab, 1995(3) RCR 505 and Satnam Singh v. State of Punjab, 1996(3) RCR 369. 7. Counsel for the respondent submitted that his tenure as Standing Counsel for Central Government has come to an end. However, on the asking of the court, he appeared and assisted the Court. 8. Counsel for the respondent submitted that section 50 of the Act did not apply as it was a case of chance recovery and recovery was not from the person. It was also submitted that recovery is supported by confessional statement of the appellant which is admissible under sections 107 and 108 of 1962 Act as held by the Supreme Court in Harbansingh Sardar Lenasingh v. The State of Maharashtra, AIR 1972 SC 1224. It was also submitted that since a gazetted officer was present, it could not be held that section 50 of the Act was violated. 9. I have considered the submissions made by counsel for the parties and have perused the record of the case. The confessional statement of the appellant, Exhibit PB, recovery memo Exhibit PA and statements of PW-1, PW-2, PW-3 and PW-4 clearly support prosecution case. The main question requires to be considered is, whether section 50 of the Act is attracted to the present case and, whether the same can be held to have been complied with. Further question raised on behalf of the appellant that non-examination of independent witnesses is also required to be decided. 10. It may be mentioned that at one stage, the matter was referred to a Division Bench to consider the contention, whether failure to hand over the seal to an independent witness would be fatal to the prosecution case. Further question raised on behalf of the appellant that non-examination of independent witnesses is also required to be decided. 10. It may be mentioned that at one stage, the matter was referred to a Division Bench to consider the contention, whether failure to hand over the seal to an independent witness would be fatal to the prosecution case. The Division Bench answered the said question in the negative and held that case of the prosecution will not be vitiated by not handing over the seal to the independent witness. 11. No doubt, violation of Section 50 of the Act is fatal to the prosecution case as provisions of section 50 are mandatory. Counsel for the appellant submitted that the present case cannot be said to be a case of chance recovery but of recovery pursuant to prior information. It was further contended that search involved was of person. I am unable to accept the contention that it was search on the basis of any prior information. On a plain reading of section 50 of the Act, it is clear that the provisions of this section will apply only if there is a prior information. It was so held by the Supreme Court in Baldev Singhs case (supra). Mere employment of sniffer dog or taking the appellant to a separate room for search by the Lady Inspector will not mean that search was being conducted on some prior information. The case of the prosecution is that this was a normal procedure of the customs authorities. 12. Since in the present case, recovery is not from the person but from the purse and from the toilet, apart from recovery being a chance recovery, section 50 of the Act does not apply. I am, however, unable to accept the contention raised by counsel for the respondent that mere presence of gazetted officer should be treated as compliance of section 50, though this question does not arise in view of finding that section 50 was not applicable on account of recovery being a chance recovery. In Kalematumba v. State of Maharashtra and another, 1999(4) RCR(Crl.) 575 : 1999(8) Supreme Court Cases 257, it was observed by the Supreme Court that when recovery is effected from baggage of a person, it could not be said to be the same thing as search of a person himself. In Kalematumba v. State of Maharashtra and another, 1999(4) RCR(Crl.) 575 : 1999(8) Supreme Court Cases 257, it was observed by the Supreme Court that when recovery is effected from baggage of a person, it could not be said to be the same thing as search of a person himself. This view has been followed in Gurbax Singh v. State of Haryana, 2000(1) RCR(Crl.) 702 : 2001(3) Supreme Court Cases 28. In Kalematumbas case (supra), it was also held that the confessional statement made by a person under Section 108 of 1962 Act would be admissible in evidence. 13. As regards contention of the appellant that independent witnesses were not examined, I am of the view that the same will not be fatal to the case of the prosecution in view of the evidence of prosecution witnesses as well as the confessional statement of the appellant herself. It has been repeatedly held that absence of any independent witness is not fatal by itself though a duty is cast on the court to scrutnise the evidence carefully. Reference is made to the judgment of the apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 737 : 1994(3) Supreme Court Cases 299 (paras 6 and 7). 14. In view of the above, I find no merit in the appeal. Judgment of conviction and sentence is upheld. 15. Recovery memo Exhibit PA shows that various other articles including one Yuashica camera and emergency lights etc. have been duly shown. The trial court has directed confiscation of all the articles seized from the appellant. There is no justification for confiscation of these articles which are not contraband and about which there is no provision for confiscation. Since there is no discussion on this aspect nor has any argument been raised, it will be open to the appellant to make claim for return of those articles which are not liable to be confiscated under the Act. 16. Subject to the above observations regarding return of articles, the appeal is dismissed. Appeal dismissed.