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2003 DIGILAW 462 (ALL)

IBRAHIM ADENDA v. UNION OF INDIA

2003-03-02

ONKARESHWAR BHATT

body2003
ONKARESHWAR BHATT, J. This appeal has been directed against judgment and order dated 21-12-1995 passed by the then Special Judge/ (Sessions Judge), Maharajganj in Special Sessions Trial No. 25 of 1992. The appellant has been convicted under Sections 21/23 of the Narcotic Drugs & Psychotropic Substances Act, herein-after referred to as the Act, and sentenced to ten years rigorous imprisonment and a fine of Rupees one lakh. In default of payment of fine two years rigorous imprisonment has been awarded. 2. Sri Ajay Bhanot learned Counsel for the appellant, and the learned A. G. A. appearing for the Union of India, have been heard. 3. According to the prosecution case, P. W. 1 Rajesh Kumar Singh and P. W. 2 P. D. Gupta alongwith others were posted in customs office at Sonauli, Mahrajgaj. On 5-2-1992 at about 8 a. m. P. W. 1 Rajesh Kumar Singh received secret information that the appellant is coming from Nepal bringing heroin hidden in his shoes. The information was taken down in writing and was taken to the Superintendent of Customs at Nautanwa by P. D. Gupta P. W. 2. According to the prosecution case, the Superintendent of Customs came to Sonauli office at 8. 45 a. m. Two witnesses from public, namely, Sri Narain Tripathi P. W. 3 and one Wazid Ali were called. At 9 a. m. the appellant came infront of the customs office and he was required to give search. In the office search was carried and from the shoes of the appellant in between the soles one packet each of polythene containing heroin was recovered. The weight of the packets was 1000 Grams each. After weighment our of 200 Grams three samples were prepared. One sample was kept in envelop and was sealed. The other two samples were also sealed in the above manner. The remaining contraband was sealed separately alongwith shoes. 4. According to the prosecution case, the appellant gave written statement and signed the same. A recovery memo was prepared and thereafter the Superintendent of Customs recorded the statement of the appellant. The recovered contraband was sent for analysis to Ghazipur opium factory and it was found to be cocaine hydrochloride. Thereafter complaint was filed by P. W. 1 Rajesh Kumar Singh. 5. A recovery memo was prepared and thereafter the Superintendent of Customs recorded the statement of the appellant. The recovered contraband was sent for analysis to Ghazipur opium factory and it was found to be cocaine hydrochloride. Thereafter complaint was filed by P. W. 1 Rajesh Kumar Singh. 5. Defence of the appellant is that Inspectors of customs planted the contraband and he was forced to sign certain papers and that he has been falsely implicated in this case. 6. P. W. 1 Rajesh Kumar Singh and P. W. 2 P. D. Gupta are the Inspectors in customs office at Sonauli. They have been examined as witnesses of fact and they have stated about the search and seizure of the contraband from possession of the appellant. P. W. 3 Sri Narain Tripathi, a public witness, has not supported the prosecution case and has been declared hostile. According to the prosecution case, search of the appellant and seizure of the contraband was made on the basis of secret information. Section 42 of the Act provides that search, seizure and arrest can be made when the officer had reason to believe on information given by any person and taken down in writing that an offence punishable under Chapter IV in respect of psychotropic substance has been committed. The information which is given by any person should be taken down in writing as is provided in Section 42 (1) of the Act. In has not come in evidence that the information which was given to P. W. 1 Rajesh Kumar Singh was taken down in writing by him. All that has come in evidence is the fact that written information was sent to the Superintendent of Customs at Nautanwa in pursuance of which the Superintendent is alleged to have come to Sonauli office. Even that written report is not on record of the case. There is no paper on the record to show that written information was sent to the Superintendent. The fact remains that the information which was given to P. W. 1 Rajesh Kumar Singh, which under law he was required to down in writing, is not on record of the case. Sending written information to the Superintendent is one thing and the requirement of law that information should be taken down in writing is another thing which has not been complied with in this case. Sending written information to the Superintendent is one thing and the requirement of law that information should be taken down in writing is another thing which has not been complied with in this case. It has been held in the case of State of Punjab v. Balbir Singh, reported in 1995 (1) JIC 382 (SC) 1994 SCC (Criminal) 634, that it is obligatory that officers mentioned in Section 42 (1) of the Act on receiving the information should reduce the same to writing. It has further been held that to that extent the provision is mandatory and failure to comply with its requirements affects the prosecution case and vitiates the trial. 7. Admittedly, two Inspectors had prior information that the offence under Chapter IV of the Act in respect of psychotropic substance has been committed. It was obligatory for the Inspectors to inform the appellant about his right to get his search made before a Magistrate or a Gazetted Officer. Failure to inform the person to be searched would amount to non-compliance of Section 50 of the Act as has been held in the case of State of Punjab v. Balbir Singh (supra ). In the case of State of Punjab v. Baldev Singh, reported in 1999 (2) JIC 421 (SC) : AIR 1999 SC 2378 , it has been held that it is imperative for the empowered officer to inform the concerned person of his right under sub-section (1) of Section 50 of the Act of being taken to a nearest Gazetted Officer or a nearest Magistrate for making the search. It is further held that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50 of the Act, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. 8. In the present case, recovery memo does not show that any offer was made to the appellant before his search that his search could be made before a gazetted officer or Magistrate. P. W. 1 Rajesh Kumar Singh, has stated that he told the appellant that on the basis of secret information search of his luggage and his person would be made before two independent persons. Similar is the statement of P. W. 2 P. D. Gupta. P. W. 1 Rajesh Kumar Singh, has stated that he told the appellant that on the basis of secret information search of his luggage and his person would be made before two independent persons. Similar is the statement of P. W. 2 P. D. Gupta. P. W. 3 Sri Narain Tripathi does not State that any search of the appellant was made in his presence and that the contraband was recovered from his shoes. The statements of both the customs officers do not show that compliance of Section 50 of the Act was made prior to search of the person of the appellant. 9. According to the prosecution case, Superintendent of Customs was present at that time and on his direction search and seizure of the alleged contraband was made. The name of the Superintendent of Customs is Ramesh Chandra Srivastava. He has not been examined in this case by the prosecution. P. W. 3 Sri Narain Tripathi says that Ramesh Chandra Srivastava was not present in the customs office and only Inspectors were present. It has come in evidence that on the packet of the seized contraband Superintendent has not put his signature. P. W. 1 Rajesh Kumar Singh could not name the messenger through whom he had sent the informantion to the Superintendent. He has further stated that the Superintendent had not given any written order for search of the appellant. There is no paper on record to show that search of the appellant was carried in pursuance of the oral order of the Superintendent. Rajesh Kumar Singh has admitted that he is telling in the Court for the first time that written information was sent to the Superintendent and on his direction and in his presence the search was carried out. Curiously enough, P. W. 2 P. D. Gupta has stated that the information which was received from the informant was reduced to writing and he went to Nawtanwa and gave the same to the Superintendent. He has further stated that he returned to Sonauli alongwith the Superintendent. If P. D. Gupta P. W. 2 had gone to Nawtanwa alongwith the written information, Rajesh Kumar Singh P. W. 1 would also have stated so. Rajesh Kumar Singh and P. D. Gupta were posted in Sonauli customs office alongwith two other Inspectors and three constables. He has further stated that he returned to Sonauli alongwith the Superintendent. If P. D. Gupta P. W. 2 had gone to Nawtanwa alongwith the written information, Rajesh Kumar Singh P. W. 1 would also have stated so. Rajesh Kumar Singh and P. D. Gupta were posted in Sonauli customs office alongwith two other Inspectors and three constables. Both of them were party to the search and seizure of the contraband from possession of the appellant. As stated above. Rajesh Kumar Singh P. W. 1 could not name the person who went to Nawtanwa for informing the Superintendent. If P. D. Gupta had taken the written information to the Superintendent at Nawtanwa P. W. 1 Rajesh Kumar Singh must have stated so before the Court. There should not have been discrepant statement in this regard in the statements of these two witnesses. Apart from the above discrepancy, it has been mentioned above that on record of the case there is nothing which proves that information which was received by Rajesh Kumar Singh P. W. 1 was taken down in writing in compliance of Section 42 (1) of the Act. According to the prosecution case, voluntary statement in pursuance of the provisions of Section 108 of the Customs Act was recorded by the Superintendent of Customs. The signature of the Superintendent has been proved by Rajesh Kumar Singh P. W. 1. This statement is alleged to have been made by the appellant at Nawtanwa office and not in Sonauli office. The questions in the voluntary statement are written by Rajesh Kumar Singh P. W. 1. This fact is not mentioned in the statement itself. It has been mentioned above that the Superintendent of Customs has not been examined to prove the voluntary statement of the appellant. In view of the aforesaid discussion, it is doubtful if the Superintendent of Customs was present at the time of search and seizure or that the appellant gave alleged voluntary statement before him. 10. P. W. 1 Rajesh Kumar Singh has stated that he had sealed the contraband. He has also stated that no sample seal was prepared by him. He has also stated that the packet was kept in the customs office Godown at Sonauli. The witness admits that there is no document on record to show that the contraband was kept in the Malkhana of the customs office. He has also stated that no sample seal was prepared by him. He has also stated that the packet was kept in the customs office Godown at Sonauli. The witness admits that there is no document on record to show that the contraband was kept in the Malkhana of the customs office. He admits that there is no receipt on the record evidencing the fact that recovered contraband was deposited by him. P. W. 2 P. D. Gupta has stated that in Sonauli office there is a box wherein contrabands are kept and the box is kept in the hall of the office. He has further stated that in that very hall Inspectors sit and importers and exporters as well as other persons come and go. He has further stated that no date is fixed for opening the box and its custodian opens and closes the box as and when required. He admits that there is no register wherein any entry is made regarding the fact of taking out and putting therein any article. He has also stated that the officer in whose custody the recovered contraband was given was also a member of the party which seized the contraband from the appellant P. W. 2 P. D. Gupta did not identify the contraband in the Court while he was in the witness box. For the reasons best known to the prosecution, the seized contraband was not identified by the witnesses before the Court. The above facts show that the contraband which is alleged to have been seized from the possession of the appellant was not properly kept and was not even produced in the Court when P. W. 2 P. D. Gupta was examined. This feature of the case also creates doubt about the veracity of the prosecution case. 11. According to the prosecution case, heroin was recovered from possession of the appellant. Chemical Examiner has not given any data on which the report is based. The opinion of the expert must be supported by reasons and it is the reasons and not the ipse dixit which is of importance in assessing the merit of the opinion, as has been held in the case of panaliswamy Vaiyapuri v. State reported in AIR 1968 Bombay page 127. The opinion of the expert must be supported by reasons and it is the reasons and not the ipse dixit which is of importance in assessing the merit of the opinion, as has been held in the case of panaliswamy Vaiyapuri v. State reported in AIR 1968 Bombay page 127. In madan Gopal Kakkad v. Naval Dubey and another reported in 1992 JIC 593 (SC) (1992) 3 Supreme Court Cases page 204, it has been held that the expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although not an expert may form its own judgment on those materials after giving due regard to he experts opinion because once the experts opinion is accepted it is not the opinion of the medical officer but of the Court. In the present case the materials inclusive of the data have not been mentioned in the report. In Section 2 (v) of the Act coca derivative has been defined. In Clause (d) all preparations containing more than O. I. per cent of cocaine has been mentioned. The contraband alleged to have been recovered from possession of the appellant was in form of powder. Section 2 (xvi) defines opium derivative. In Clause (d) heroin has been mentioned. According to the prosecution case the contraband was heroin. Clause (e) of Section 2 (xvi) of the Act says all preparations containing more than 0. 2 per cent of morphine or containing any diacetylmorphine. If the contraband is taken to be coca derivative, then the expert should have mentioned that it contained more than 0. 1 per cent of cocaine. The expert has not mentioned the percentage of cocaine in the contraband. If the contraband is taken to be opium derivative then also the percentage of more than 0. 2 of morphine or diacetylmorphine should have been mentioned. Since the expert has not mentioned any percentage of either of the two, it is difficult to hold that the contraband was either coca derivative or opium derivative. In view of the above it cannot be said that narcotic drug has been recovered from possession of the appellant. 12. 2 of morphine or diacetylmorphine should have been mentioned. Since the expert has not mentioned any percentage of either of the two, it is difficult to hold that the contraband was either coca derivative or opium derivative. In view of the above it cannot be said that narcotic drug has been recovered from possession of the appellant. 12. In view of the above discussion, the conviction and sentence of the appellant cannot be sustained and the appeal is liable to succeed. 13. The appeal is allowed. the order of conviction and sentence of the appellant is set aside. he is in Jail. He shall be set at liberty forthwith, if not required in any other criminal case. Appeal allowed. .