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2004 DIGILAW 270 (RAJ)

Arjun Ram v. Union of India (NCB)

2004-02-24

H.R.PANWAR

body2004
JUDGMENT 1. - This criminal appeal is directed against the judgment and order dated 10.7.2002 passed by Special Judge, N.D.RS. Cases, Jodhpur in Sessions Case No. 28/2000 whereby learned Special Judge, (for short "the trial court" hereinafter) convicted appellant Arjun Ram for the offences under Sections 8/21, 8/23 and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act" hereinafter) and awarded sentence of 10 years' R.l. on each count with a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo one year's R.l. 2. The prosecution story as set up by the respondent before the trial court is that on 12.3.2000 PW-5 Rajendra Singh, Regional Director, Narcotics Control Bureau, Jodhpur received a secret information Ex.P/19 whereby he was informed that some packets of heroin is (are) likely to be passed through the border. On receipt of information Ex.P/19 he constituted a team and proceeded to the spot mentioned in the information. When they reached border near pillars No. 905 and 907, the BSF personnel of 94 battalion BSF were present there. The team constituted by PW-5 was added (headed) by PW-6 Suresh Trivedi and was supervised by PW-3 Narendra Singh. At the border between pillar No. 905 and 907 they found four plastic bags containing 15 packets each. On checking it was found that those 60 packets contained heroin. The seizure party undertook the proceedings. PW-6 Suresh Trivedi seized the contraband articles. After some time the BSF personnel caught appellant Arjun Ram from his field and brought him to the spot. He was interrogated by PW-6 Suresh Trivedi on the spot. It is alleged that PW-6 Suresh Trivedi issued a notice E*.P 20 to the appellant for his appearance before Intelligence Officer, Narcotics .Control Bureau, Jodhpur (for short "NCB" hereinafter) on 13.3.2000 at 8.00 AM at company head quarter, 94 battalion, BSF, Nayatala, Barmer. PW-6 recorded statement under Section 67 of the NDPS Act Ex.P/21 on 13.3.2000 and on the basis of the said statement Ex.P/21 the accused appellant was arrested vide Ex.P/22 on 13.3.2000 at 1500 hours (3.00 PM). After completion of investigation the respondent filed complaint against the present appellant in the trial court. The charges for offences under Sections 8/21, 8/23 and 8/29 of the NDPS Act were framed. The respondent produced as many as 10 witnesses and the documents Ex.P/1 to Ex.P/38 were exhibited. After completion of investigation the respondent filed complaint against the present appellant in the trial court. The charges for offences under Sections 8/21, 8/23 and 8/29 of the NDPS Act were framed. The respondent produced as many as 10 witnesses and the documents Ex.P/1 to Ex.P/38 were exhibited. Accused made statement under Section 313 Cr.PC. In defence, appellant came up with the case that his thumb impressions were obtained on blank papers and in this regard he had made an application Ex.D/1 before the trial court retracting the statement Ex.P/21. On appreciation of evidence produced by the respondent the trial court found the accused appellant guilty for the offences noticed above and he was accordingly convicted and sentenced as stated above. Hence this appeal. 3. I have heard the learned counsel for the appellant and the counsel appearing for the respondent and perused the judgment and order of the trial court. I have carefully scanned and scrutinised the evidence on record. 4. It is contended by the learned counsel for the appellant that though in the document produced by the NCB the thumb impression of the accused appellant is shown but it was not obtained on the spot but subsequently thumb impressions of the accused were got affixed on the various documents produced before the court in order to falsely implicate him which is evident from the statement of PW-1 Jhanda Khan and PW-2 smile who are motbirs of the seizure. It is further contended that as per the statement of PW-9 Kailash Jat, Dy. Commandant the accused appellant was arrested by the BSF officers and was interrogated soon after the arrest and his statement was recorded but that part of statement has not been produced by the prosecution before the trial court. The prosecution has produced the statement alleged to have been made by the accused by concealing his original statement. He further contended that the accused was arrested at 5.15 PM (17:15 hours) on 12.3.2000 itself which is evident from the statement of PW-9 Kailash Jat, Dy. Commandant. Learned counsel further contended that on first hand information regarding lying of four plastic bags near the fencing of the border was given by one Vinod Babu, the BSF personnel who was guarding the border area at the relevant time who has not been produced by the prosecution before the trial court. Commandant. Learned counsel further contended that on first hand information regarding lying of four plastic bags near the fencing of the border was given by one Vinod Babu, the BSF personnel who was guarding the border area at the relevant time who has not been produced by the prosecution before the trial court. It is further contended that it is evident from the statement of PW-7 Nikhil Kumar that appellant Arjun Ram was caught by one Jai Singh, Post Commandant. The prosecution has also not produced Jai Singh before the trial court. It was contended that in view of the statement of PW-7 Nikhil Kumar the prosecution story as deposed by PW-3 Narendra Singh and PW-6 Suresh Trivedi is falsified. It was further contended that till the contraband was sent for being analysed by the Forensic Science Laboratory the prosecution did not know who (was) the accused person in the case, which is evident from Ex.P/14, the FSL report, wherein in the column name of accused, no name has been mentioned. Ex.P/15 is a document by which the contraband was sent for chemical analysis wherein also the name of accused does not find place. He contended that the accused appellant has subsequently been falsely implicated. The statement under Section 67 as well as other documents relied on by the prosecution are ante time(d) and dated. Learned counsel for the appellant has further pointed out various infirmities in the prosecution case as also the material contradictions between the statement of the prosecution witnesses, it was contended that there are material contradictions in Ex.P/3, the panchnama and Ex.P/21, the statement under Section 67 of the Act alleged to have been made by the accused appellant. PW-9 Kailash Jat stated that the accused was arrested on 12.3.2000 at 5.15 PM whereas in the panchnama Ex.P/3 it has been mentioned that accused Arjun Ram was left on the spot. Likewise, the prosecution witness stated that the accused was taken by the NCB officers alongwith them, whereas PW-6 Suresh Trivedi stated that the accused was left on the spot. Similarly other witness PW-3 Narendra Singh also made the similar statement. Likewise, the prosecution witness stated that the accused was taken by the NCB officers alongwith them, whereas PW-6 Suresh Trivedi stated that the accused was left on the spot. Similarly other witness PW-3 Narendra Singh also made the similar statement. It was further contended that from the statement of PW-7 Nikhil Kumar it is obvious that by evening at 7.00 PM all the packets containing contraband were taken down by the NCB officials and next morning i.e. on 13.3.2000 he saw the contra bands at BSF company Head-quarter and, therefore, learned counsel for the appellant contended that the contrabands were not sealed soon after they were seized at the spot near the border pillars. PW-6 Suresh Trivedi admitted in his statement that they left the border pillars on 12.3.2000 itself after seizure of heroin which shows that contraband heroin was not sealed on the spot and the entire process of sealing and sending contraband's to the FSL was subsequent thereto i.e. on next day 13.3.2000 at BSF headquarter. It was further contended that the notice Ex.P/20 alleged to have been issued to the appellant requiring him to appear on 13.3.2000 at 8.00 AM at company headqurter at 94 BSF battalion, Nayatala, Barmer whereas PW-9 Kailash Jat, Dy. Commandant admitted that the accused made a statement on 12.3.2000 at the spot itself soon after he was brought by the BSF personnel. Had that statement been produced, it would have falsified the entire prosecution case and in order to conceal that material fact another statement alleged to have been recorded by using coercive method and under threat had been produced. He further contended that there is no corroboration to the said statement Ex.P/21 and in absence of any reliable and convincing corroboration the conviction on the basis of such a solitary statement cannot be based. 5. Learned counsel appearing for the respondent contended that the accused appellant made the statement Ex.P/21 under Section 67 voluntarily and, therefore, the trial court was justified in convicting the appellant for the offences noticed above. He further contended that the statement made by PW-6 Suresh Trivedi in his examination-in-chief has to be given weightage and from his statement the case in hand stands proved. He also invited my attention to Ex. He further contended that the statement made by PW-6 Suresh Trivedi in his examination-in-chief has to be given weightage and from his statement the case in hand stands proved. He also invited my attention to Ex. P/30, an interrogation note of Danaram who is neither accused nor a witness in the case and on the basis of Ex.P/30 learned counsel made an unsuccessful effort to connect the accused appellant with the crime. 6. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. 7. Ex.P/19, secret information, which was received by PW-5 Rajendra Singh relates to Dalia resident of Bada and Danaram resident of Gora Gaon near Dhorimanna. In the secret information the appellant's name does not find place. This information was conveyed by PW-9 Kailash Jat to PW-5 Rajendra Singh. The panchnama Ex.P/3 reveals that when NCB officials reached the border pillars No. 905/907 S-l and 906 S-ll near to fencing wire on Indo Pak border four plastic bags containing 15 packets each (in all 60 packets) which were being guarded by BSF guards. The Intelligence Officers of the NCB was informed that Lance Nayak Vinod Babu who was patrolling that area in between pillars No. 906 S-I and 906 S-II on 12.3.2000 at 1430 hours a civilian person was sitting near Indo Pak border. He went to catch hold of that person but hurriedly he crossed the border and went in the territory of Pakistan. Thereafter on search a person was found hidden in bushes. Strangely, such a material witness has not been produced by the respondent before the trial court. In the panchnama Ex.P/3 portion "A1" to "B1" states that when PW-3 Suresh Trivedi went on the spot he was informed by the BSF officers that the appellant informed to BSF officers that his brother Dalia has run away towards Pakistan territory who brought the alleged contraband and Danaram who is brother-in-law of Dalia was to carry this contraband, whereas he had an injury in leg and therefore, he did not run. The first version alleged to have been given by the appellant was made to the BSF officers. The prosecution has failed to produce those BSF officers to whom the statement is alleged to have been made by the appellant. This renders the entire prosecution story more suspicious. 8. The first version alleged to have been given by the appellant was made to the BSF officers. The prosecution has failed to produce those BSF officers to whom the statement is alleged to have been made by the appellant. This renders the entire prosecution story more suspicious. 8. PW-1 Jhanda Khan and PW-2 Ismile are the motbirs of panchnama Ex.P/3. Both these witnesses stated in clear terms that when panchnama was prepared the accused appellant was not present at the spot. PW-2 Ismile further stated that when Ex.P/3 was prepared the accused had not affixed the thumb impression in their presence. If the statement of PW-6 Suresh Trivedi is read with statement of these two witnesses coupled with statement of PW-7 Nikhil Kumar and PW-9 Kailash Jat, Dy. Commandant, the panchnama as such becomes doubtful as to whether panchnama was prepared at the spot and more particularly in the presence of accused appellant. Although panchnama Ex.P/3 bears the thumb impression of the accused appellant but from the statement of prosecution witnesses noticed above it is established that the accused appellant was not present when Ex.P/3 was prepared. PW-6 in his statement stated that thumb impression of the accused appellant was affixed on Ex.P/3, the seizure memo, because he was accused in the case. From the statement of this witness coupled with the statement of PW-7 Nikhil Kumar and PW-9 Kailash Jat it is apparent that the accused appellant was considered to be an accused in the case soon after the seizure on 12.3.2000 itself and thereafter he remained in custody of the respondent NCB officer and, therefore, the notice Ex.P/20 and the statement of Ex.P/21 under Section 67 lose all significance. The statement has been retracted by the appellant at the earliest possible opportunity vide Ex.D/1. In the statement under Section 313 Cr.P.C. the accused in clear terms stated that near to the place of seizure he has his agricultural field and a hut in which he resides with his family members. He further stated that he was threatened and given beating and by use of coercive method the officers of the NCB got his thumb impression on blank papers and he has not made any voluntary statement to the NCB officials. He has proved the Ex.D/1 the retraction statement made by him before the court at the earliest. He further stated that he was threatened and given beating and by use of coercive method the officers of the NCB got his thumb impression on blank papers and he has not made any voluntary statement to the NCB officials. He has proved the Ex.D/1 the retraction statement made by him before the court at the earliest. Thus it cannot be said that the statement Ex.P/21 is a voluntary statement of the appellant. 9. This Court in Narcotic Control Bureau v. Gani Khan, 1994 Cr.L.R. (Raj.) 355 , held that if the person has already been named as an accused then his statement recorded under Section 67 of the Act cannot be read against him in view of the bar created by Article 20(3) of the Constitution of India, as no person accused of an offence, shall be compelled to be a witness against himself. From the statement of PW-6 Suresh Trivedi. intelligence officer of NCB who is seizure officer, it is clear that at the time of making panchnama Ex.P/3 he came to know that accused appellant Arjun Ram is the accused in the case. He admitted in his statement that he got the thumb impression of the accused appellant affixed on Ex.P/3 because he was an accused in the case. Ex.P/3 was prepared between 1500 hours to 2100 hours on 12.3.2000 itself and statement Ex.P/21 was recorded on 13.3.2000 at 8.00 AM. Thus in view of the provision of Article 20(3) of the Constitution of India such a statement cannot be used against its maker. This Court in Kingsley & Anr. v. State of Rajasthan, 1996(1) RCD 491 (Raj.) , held that the persons referred to in Section 42 of the Act are empowered to examine any person acquainted with the facts and circumstances of the case during the course of any enquiry or in connection with the contravention of any provisions of the Act. The confessional statement under Section 67 of the Act can be used against its maker provided it is not hit by clause (3) of Article 20 of the Constitution. 10. The confessional statement under Section 67 of the Act can be used against its maker provided it is not hit by clause (3) of Article 20 of the Constitution. 10. Here in the instant case from the statement of various prosecution witnesses, as discussed above, it is established that the accused appellant was taken in custody on 12.3.2000 at 5.15 PM (1715 hours) and indisputably the statement under Section 67 Ex.P/21 was recorded on the next day i.e. 13.3.2000 and before recording statement even PW-6 Suresh Trivedi himself admitted in his statement that a day prior i.e. on 12.3.2000 itself while making panchnama Ex.P/3 the appellant was named as accused in the case. The statement under Section 67 has been recorded after the appellant has been named as accused. Such a statement cannot be read against him in view of the bar created by Article 20(3) of the Constitution of India. The Apex Court in R.B. Shah v. D.K. Guha, AIR 1973 SC 1196 , while considering the case under the provisions of Foreign Exchange Regulation Act held that the statement recorded under Section 19-F of the Foreign Exchange Regulation Act after the person was made accused was hit by Article 20(3) of the Constitution of India. In R.B. Shah's case (supra) the Apex Court held that a person accused of an offence is entitled to the protection under Article 20(3) of the Constitution and hence he cannot be compelled to be a witness against himself. Article 20(3) provides that no person accused of any offence shall be compelled to be witness against himself. Thus it is clear that in order to claim protection of the guarantee against testimonial compulsion enshrined under clause (3) of Article 20 of the Constitution, the accused must show that when the statement was made he was accused of an offence and his statement was under compulsion. In Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167 , the Apex Court held that the confessional statement can be used against the accused when recorded before any complaint or FIR had been lodged against him. 11. In the instant case the appellant retracted the confessional statement under Section 67 of the Act as also in the statement under Section 313 Cr.RC. he stated that he was assaulted and his thumb impressions were obtained on blank papers. 11. In the instant case the appellant retracted the confessional statement under Section 67 of the Act as also in the statement under Section 313 Cr.RC. he stated that he was assaulted and his thumb impressions were obtained on blank papers. He has not made any voluntary statement to the NCB officers, he was forced to affix thumb impressions and thereafter when he came to know that on those blank papers after having got his thumb impression affixed by coercion and threat his statement was recorded, he retracted the said statement vide Ex.D/1 on 9.6.2000. 12. In K.I. Parunny v. Assistant Collectrate (Headquarter) Central Excise, JT 1997(2) SC 120 , the Apex Court held that the burden is on the accused to prove that the statement was obtained by threat, duress or promise. In Pan Adhithan v. Dy. Director, NCB, 1999 SCC (Cr.) 1051 , the Apex Court held that the confessional statement must be without fear, inducement or coercion. In Sevantilal v. State of Maharashtra, AIR 1979 SC 705 , the Apex Court held that if the confession is made to custom officer or on the same analogy before the officer under the NDPS Act under coercion, conviction cannot be sustained. 13. In the instant case the accused has discharged the burden by saying that the thumb impressions on the alleged confessional statement were obtained by assaulting him i.e. by coercion and threat and that too on the blank papers and even otherwise on this count also the conviction of the appellant cannot be sustained on the strength of such a confessional statement. The complainant NCB has utterly failed to prove that the alleged confessional statement was made by the appellant voluntarily. 14. The argument advanced by the learned counsel for the respondent are without substance inasmuch as the statement of witnesses tested on cross examination has to be preferred as against the statement made in examination in chief. What has been stated by the witness in his examination in chief gets demolished when his statement is tested by cross examination. The law on the point is well settled. What has been stated by the witness in his examination in chief gets demolished when his statement is tested by cross examination. The law on the point is well settled. So also the interrogation note of Danaram Ex.P/30 has absolutely no relevancy to connect the present appellant with the commission of crime for the reason that on perusal of the statement Ex.P/3 it reveals that Danaram who was in Central Jail, Jodhpur and the NCB officer recorded statement while he was in custody and in jail, in NCB v. Gani Khan's case (supra) this Court held that the statement of co-accused recorded under Section 67 of the Act cannot be read against a co-accused when they are not jointly tried for the same offence. In the instant case appellant Arjun Ram and co-accused Danaram were not jointly tried and, therefore, the statement made by Danaram under Section 67 of the Act cannot be read against appellant Arjun Ram. 15. In the instant case the prosecution story solely rests upon the statement of the accused appellant Ex.P/21 recorded under Section 67 of the Act which is wholly uncorroborated statement. This statement does not find corroboration from any other independent witness. On the contrary, it gets demolished by the statements of various prosecution witnesses as discussed above. More so, from the evidence on record it is established that the said confessional statement was not voluntarily made by the appellant and it was under fear, coercion and threat as is evident from Ex.D/1 as also the statement of the appellant made under Section 313 Cr.RC. The prosecution has failed to establish that the statement Ex.P/21 was voluntarily made by the accused. More so, the statement Ex.P/21 was recorded after the appellant was named as an accused in the case and, therefore, it is hit by Article 20(3) of the Constitution of India. There remains no other evidence against the accused appellant to connect him with commission of crime. In the circumstances, therefore, the order of conviction and sentence awarded to the appellant by the trial court cannot be sustained. The prosecution has failed to prove the case against the appellant beyond reasonable doubt. In the circumstances, therefore, the appeal deserves to be allowed and appellant deserves to be acquitted. 16. In view of the aforesaid discussion this appeal is allowed. The prosecution has failed to prove the case against the appellant beyond reasonable doubt. In the circumstances, therefore, the appeal deserves to be allowed and appellant deserves to be acquitted. 16. In view of the aforesaid discussion this appeal is allowed. The conviction and sentence of appellant Arjun Ram son of Haka Ram, by caste Bheel, resident of Bhanda, police station Cankasar, Tehsil Chohtan, District Barmer for the offences under Sections 8/21, 8/23 and 2/29 of the N.D.RS. Act are hereby set aside and he is acquitted of the said offences. He is in jail. He shall be released forthwith, if not required in any other case.Appeal allowed. *******