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2002 DIGILAW 773 (PNJ)

Mohd. Iqbal v. State Of Punjab

2002-08-08

HEMANT GUPTA, R.L.ANAND

body2002
Judgment Hemant Gupta, J. 1. The present appeal is by Mohd. Iqbal, a Pakistan National, against the judgment dated 10.12.1996 passed by Additional Sessions Judge, Gurdaspur, convicting the him under Sections 21 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as `the Act). 2. Brief facts out of which the present appeal has arisen is that on 5.12.1995 Directorate of Revenue Intelligence had received a secret information about the smuggling of contraband across the border. In pursuance of such information a nakabandi was organised on 16.121995 at T Junction of Mamoon Cantt on Jammu-Pathankot Highway. At about 8 a.m., the Officers observed a person coming from the bushes towards Indo-Pak border and on being challenged to stop the person tried to make good his escape but he was overpowered by naka party. The suspected person was carrying two bags and disclosed his identity as Mohd. Iqbal son of Bashir Ahmed, resident of village Jarpal, Tehsil Shakargah, District Narowal (Pakistan). He disclosed that he had come from Pakistan alongwith one Indian named Harpal and that he was carrying narcotic substance in the bag and that he was waiting for Indian accomplice, who had gone to Pathankot to arrange for a vehicle. The place of interception was not considered safe and secure to examine the accused therefore, the appellant was escorted to the office of Joint Assistant Director (G) of Border Security Force at Gurdaspur along with the said bags. At Gurdaspur two independent witnesses were called and in their presence the appellant was asked in writing whether he opted to be searched alongwith two bags before a Magistrate or a Gazetted Officer i.e. Assistant Director, DRI, Amritsar. The appellant conveyed his no objection to the conduct of search by Assistant Director, DRI, Amritsar and in pursuance thereof 2 bags containing 10 packets of 1 kilogram each of brown powder were recovered from the bags. On testing with U.N. Drug Testing Kit, the packets showed positive result of heroin (opium base). The appellant could not produce any evidence documentary or otherwise in support of legal importation/possession regarding the recovered 10 kilograms of heroin. Consequently, such 10 packets which valued at Rs. 50,000/- each were taken into possession and seized under Section 43 of the Act and 110 of the Customs Act, 1962. The appellant could not produce any evidence documentary or otherwise in support of legal importation/possession regarding the recovered 10 kilograms of heroin. Consequently, such 10 packets which valued at Rs. 50,000/- each were taken into possession and seized under Section 43 of the Act and 110 of the Customs Act, 1962. Sealed samples were sent for chemical analysis and were delivered at New Delhi on 8.12.1995. The case property was deposited in Custom House Malkhana, Amritsar on 7.12.1995, whereas duplicate samples were deposited in the Malkhana, Amritsar on 19.12.1995. The remnant samples as received from Chemical Examiner, New Delhi in a sealed cover were also deposited in the Custom House, Malkhana on 19.1.1996. The Chemical Examiner have reported in his report that samples answer test of Dialety Morphine which is the chemical name of heroin. Since the accused had committed offence under Sections 21 and 23 of the Act for acquiring possession of heroin; hence the complaint was filed. 3. In support of the complaint the prosecution examined PW-2 Shri V.K. Sharma, Intelligence Officer and PW-3 Gurvinder Singh, Senior Intelligence Officer and Harpal Singh, Intelligence Officer of DRI, apart from leading other evidence including the report of Chemical analysis. 4. The trial Court after considering evidence on record returned a finding that the accused is guilty of offences under Sections 21 and 23 of the Act and convicted the appellant and sentenced him to undergo R.I. for a period of 14 years and to pay a fine of Rs. 1,00,000/-, separately under each Section. However, the substantive sentences were ordered to run concurrently. 5. We have heard Shri Hemant Bassi, Advocate, for the appellant and Shri S.S. Randhawa, Deputy Advocate General for the State for Punjab and with their assistance have gone through the record of the case. 6. The counsel for the appellant has argued that there is violation of mandatory provisions of Section 50 of the Act inasmuch as the accused was not made aware of his right to be searched by a Magistrate or a Gazetted Officer in a language known to him i.e. Urdu. It was further argued that the search was not conducted at the spot where accused was apprehended but at Gurdaspur, therefore, the provisions of Section 50 of the Act have not been complied with. It was further argued that the search was not conducted at the spot where accused was apprehended but at Gurdaspur, therefore, the provisions of Section 50 of the Act have not been complied with. The other argument of the counsel for the appellant was that no independent witnesses were joined at the time of apprehension of accused at Mamoon and the independent witness associated at Gurdaspur had not been examined and therefore, the entire prosecution story is not reliable. The last argument on behalf of the appellant was that the report of chemical analysis cannot be read into evidence as firstly it has not been ensured that the sample was in safe custody under Section 55 of the Act nor chemical analyst has given report of seals intact. 7. We have examined the arguments raised on behalf of the appellant and are unable to agree with the same. The first argument of the appellant that the offer of search in the presence of a Gazetted Officer or a Magistrate was not made in the language known to the accused i.e. in Urdu and therefore, there is violation of the provisions of Section 50 of the Act. In fact Section 50 of the Act contemplates the search in the presence of a Gazetted Officer or a Magistrate if "any person" under the provisions of Sections 42 and 43 requires so. A reading of the provisions of Section 50 of the Act would show that it is not necessary that the offer of search by a Magistrate or Gazetted Officer should be made in writing or that writing should be in the language known to him. In the present case, the offer of search by a Gazetted Officer was made vide document Ex.PA which is in English. However, there is note appended in Punjabi which when translated in English reads as under : "The contents of this letter have been explained to me in Punjabi. I certify that I have no objection for carrying out my search including search of my stores in the presence of S. Harcharan Singh, Assistant Director, DRI, Amritsar. Dated 6.12.95 LTI Mohd. Iqbal & Sd/- Mohd. Iqbal in Urdu". 8. I certify that I have no objection for carrying out my search including search of my stores in the presence of S. Harcharan Singh, Assistant Director, DRI, Amritsar. Dated 6.12.95 LTI Mohd. Iqbal & Sd/- Mohd. Iqbal in Urdu". 8. A perusal of the above note would show that the option of being searched under Section 50 of the Act was explained to him in Punjabi and he has signed above such endorsement in Urdu as well as thumb marked the same. A Division Bench of this Court in Roop Singh v. State of Punjab, 1996(1) RCR 146 has held that the offer of search under Section 50 is not required to be made in writing. In fact, the Honble Supreme Court in Sajjan Abraham v. State of Kerala, 2001(6) Supreme Court Cases 692 has held that oral information under Section 50 of the Act is enough and it is not necessary that notice under Section 50 of the Act should be in writing. In Sajjan Abrahams case reliance was placed on State of Punjab v. Baldev Singh, AIR 1999 Supreme Court 2378. Keeping in view said principles of law, we are of the opinion that no illegality can be found in giving a notice in writing in English explained to the accused in Punjabi of his right to get searched by a Gazetted Officer or a Magistrate when option under Section 50 can be given orally as well. 9. It was contended by the appellant that Harcharan Singh, Senior Assistant Director who made offer Ex.PA has not been examined in Court and therefore, the option of search conveyed through Ex.PA is not admissible in evidence. PW-2 V.K. Sharma, Intelligence Officer Directorate of Revenue Intelligence has proved option Ex.PA. He was the person who was present alongwith Harcharan Singh, Assistant Senior Director at that time. Shri V.K. Sharma is the person who has actually conducted the search. Gurinder Singh PW-3 and Harpal Singh PW-4 Intelligence Officers, were associated at the time of search as well as nakabandi. Document Ex.PA stands fully proved from the statements of Vinod Kumar Sharma PW-2, Gurvinder Singh PW-3 and Harpal Singh PW-4, who were the persons present at the time of search and recording of his endorsement of the accused. All these witnesses were carrying their official duties. Therefore, it cannot be disputed that option was given to the appellant. 10. Document Ex.PA stands fully proved from the statements of Vinod Kumar Sharma PW-2, Gurvinder Singh PW-3 and Harpal Singh PW-4, who were the persons present at the time of search and recording of his endorsement of the accused. All these witnesses were carrying their official duties. Therefore, it cannot be disputed that option was given to the appellant. 10. Even though the provisions of Section 50 of the Act have been complied with in its letter and spirit but as a matter of fact, the prosecution was not obliged to seek option of the accused of search in the presence of the Gazetted Officer or a Magistrate in view of the fact that the contraband was recovered from the bags which the accused was carrying and not for his person. 11. Recovery of contraband from a bag which the accused was carrying is different from the recovery of contraband from search of a person. It has been held by Supreme Court in Kalema Tumba v. State of Maharashtra and another, 1999(4) RCR(Crl.) 575 (SC) : AIR 2000 Supreme Court 402 and Sarjudas and another v. State of Gujarat, 1999(4) RCR(Crl.) 614 (SC) : AIR 2000 Supreme Court 403 to the effect that search of a baggage of person is not the same thing as search of person himself. Therefore, search of bag carried by the appellant was not required to be taken in the presence of a Gazetted Officer or a Magistrate. 12. The other argument of the learned counsel for the appellant was that the search was not made at the spot of apprehension of accused but at Border Security Force Office at Gurdaspur and thus, the search and seizure operations are illegal. This argument cannot be accepted. It is clear from the statements of the prosecution witnesses that the appellant admitted when apprehended that the bags contained heroin powder in them. The accused was brought to Gurdaspur as no witness was available at the place of apprehension. There is no provision in the Act which enjoins a duty upon the prosecution to carry out seizure operation at the place of apprehension of the accused itself. The seizure operation could be carried out at any place which is convenient for the purpose. Therefore, the recovery effected at the office of Border Security Force at a distance of about 12-15 kilometres is not illegal or unjustified. 13. The seizure operation could be carried out at any place which is convenient for the purpose. Therefore, the recovery effected at the office of Border Security Force at a distance of about 12-15 kilometres is not illegal or unjustified. 13. The argument of the appellant that independent witnesses i.e. Raj Kumar and Jagdish Raj have not been examined is wholly devoid of merit. The prosecution has produced 3 officers of the Revenue Intelligence who have carried out nakabandi and consequent search and seizure operations regarding the recovery of contraband. None of the officers has any animus or motive to falsely implicate the appellant. Such Officers are carrying their official duties and such activities carry presumption of truthfulness. Merely because the witnesses are officials, they do not lose their credibility. The evidence of witnesses is trustworthy and creates confidence in the mind of the Court. Therefore, the principle of corroboration from independent witnesses is not necessary in the present case. It is in the testimony of the witnesses that independent witnesses were not available at the site of apprehension of accused. Therefore, the accused was brought to Gurdaspur where two independent persons namely Raj Kumar and Jagdish Raj were joined. However, such witnesses were given up having won over which is not uncommon in actual practice. Honble Supreme Court in Ambika Prasad and another v. State (Delhi Admn., Delhi), 2000(1) RCR(Crl.) 643 (SC) : AIR 2000 Supreme Court 718 has held that if independent persons are not willing to carry with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of eye witnesses. The relevant portion of the observations made by Honble Supreme Court is reproduced as follows : "It is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case, if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured eye-witnesses." 14. Earlier the Honble Supreme Court in Appabhai and another v. State of Gujarat, AIR 1998 Supreme Court 696 has noted the handicap of the prosecution in discharging is duties of producing independent witnesses. It was held by Honble Supreme Court as follows : "It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally, insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probably if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a distardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner." 15. Thus, considering the entire evidence, the evidence of the prosecution witnesses is trustworthy, credible and the accused cannot be granted any benefit for not producing independent witnesses associated at the time of recovery of contraband. 16. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner." 15. Thus, considering the entire evidence, the evidence of the prosecution witnesses is trustworthy, credible and the accused cannot be granted any benefit for not producing independent witnesses associated at the time of recovery of contraband. 16. The last argument of the appellant was that the contraband has not been retained in safe custody nor the samples sent for chemical analysis have been reported to carrying seals intact certificate. The said argument of the counsel for the appellant cannot be accepted. Shri V.K. Sharma, Intelligence Officer has sent the samples for testing vide document Ex.PG. The document is in two Sections. Section 1 is signed by V.K. Sharma, Intelligence Officer, whereas Section 2 is meant for use in Laboratory. The sample was drawn on 6.12.1995 and was received in the laboratory on 8.12.1195. To the same effect is the statement of Hactor John PW-1. He has stated that he delivered the samples in intact condition to Laboratory. V.K. Sharma PW-2 stated that it was produced by him before Chief Judicial Magistrate on 7.12.1995 as is clear from Ex.PF in a sealed cover. On 7.12.1995 the seal intact were handed over by Shri V.K. Sharma to PW-1 Hector John. 17. Section 1 of Document Ex.PG has facsimile of seal. Section 2 i.e. the report has been signed by Dr. Y.K.S. Rathore, who has affixed his facsimile of seal of Chemical Examiner. The argument on behalf of the appellant was that there is no report of Chemical Examiner that the seals on each of the samples was intact. It is not open to the appellant to raise such an argument at this stage when the appellant has not sought to dispute such report of the Chemical Examiner before the trial Court. Even otherwise, it is apparent from the evidence led that the samples was despatched soon after its recovery and was in the Laboratory on 8.12.1995. The facsimile of the seal was attached. The Chemical Examiner, if he had found any tampering, would have reported the same. There is nothing on record to doubt the veracity of the samples and he seals thereon. 18. Next part of the arguments was that the contraband has not been kept in safe custody as provided under Section 55 of the Act. The Chemical Examiner, if he had found any tampering, would have reported the same. There is nothing on record to doubt the veracity of the samples and he seals thereon. 18. Next part of the arguments was that the contraband has not been kept in safe custody as provided under Section 55 of the Act. PW-2 V.K. Sharma has stated that the case property was deposited in Custom House Malkhana on 7.12.1995. Therefore, the argument of the appellant is not sustainable. 19. The appellant has relied upon Dalbir Singh v. State of Punjab, 1998(1) RCR(Criminal) 79; Jagan Nath v. State of Punjab, 1996(3) RCR 46; Joginder Singh v. State of Haryana, 1996(3) RCR 174; State of Haryana v. Mahabir, 1998(2) RCR(Criminal) 314; Jaswant Singh v. State of Punjab, 1998(2) RCR(Criminal) 760; Jaswant Singh v. State of Punjab, 1996(2) RCR 293; and Gurmez Singh v. State of Punjab, 1996(2) RCR 307. However, such judgments are rendered on its own peculiar facts particularly judgment pertaining to applicability of Section 50 of the Act which has undergone sea change after the pronouncement of judgment in State of Punjab v. Baldev Singh, AIR Supreme Court 2378. 20. Apart from the above, it may be noticed that the accused has made his statement Ex.PB. Such statement was recorded in pursuance of the notice given to the accused under Section 67 of the Act. In such statement the accused has admitted the factum of his being Pakistan National and that he has brought two bags with him containing 10 packets of heroin. 21. Keeping in view the facts and circumstances of the case, we do not find any illegality or impropriety by the trial Court in convicting the appellant. The sentence imposed upon the appellant is also justified keeping in view the large quantity of heroin smuggled to India for nefarious purposes. Consequently, the appeal is dismissed.