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2006 DIGILAW 2623 (PNJ)

Noor Aga v. State Of Punjab

2006-07-09

VIRENDER SINGH

body2006
Judgment , J. 1. Appellant Noor Aga i s an Afghan national. Vide impugned judgment of learned Special Judge, Amritsar dated 7.6.2000, he stands convicted under sections 22 23 of the Narcotic Drugs and Pychotropic Substances Act, 185 (for short the act) for allegedlyfound in conscious possession of 1 kg 400 grams heroin (net w t in22 pakets) on 1.8.1997 when intercepted by the Custfedfdfdfdsffdoms officials at raja Sansi Airport, Amritsar. In fact the appellant was one of the crew members of Ariana Afghan Air Lines. He has now been sentenced to undergo RI for ten years and to pay a fine of Rs 1 lac under section 22 of the Act, in default thereof to further undergo RI for three years; for the same period on both the counts under section 23 of the Act also including the sentence for default clause. However, both the sentences are ordered to run concurrently. Aggrieved by the judgment of conviction and sentence, he has preferred the instant appeal. Shorn of unnecessary details, the case of the prosecution is that on 1.8.1997, at about 6 PM, Ariana Afghan Air Lines landed at Raja sansi Airport. The appellant presented himself for custom clearance along with luggage being carried by him which included one carton containing grapes. The said carton had two layers. This created suspicion in the mind of PW1 Inspector Kulwant Singh of Customs house. He asked the appellant as to whether he was carrying any contraband or any other suspicious item to which he replied in negative. 2. However, Kulwant Singh PW asked him as to whether he wanted to get his search conducted in the presence of a Magistrate or a Gazetted officer of the Customs Department. Through his option Ex. PA in writing, he intended his search to be conducted before Gazetted Officer of the Customs Department. Thereafter K. K. Gupta, Superintendent of customs Department (PW2) and two independent witnesses Mohinder singh and Yusaf were called. The consent memo was attested by aforesaid K. K. Gupta and Inspector Kulwant Singh. K. K. Gupta also disclosed his identity to the appellant as of Gazetted Officer of Customs department. The carton was checked in which layers of the walls were separated from other layers.22 packets of polythene containing white powder were recovered. The material was tested with the drug testing kit already with the Customs officials and found it to be heroin. K. K. Gupta also disclosed his identity to the appellant as of Gazetted Officer of Customs department. The carton was checked in which layers of the walls were separated from other layers.22 packets of polythene containing white powder were recovered. The material was tested with the drug testing kit already with the Customs officials and found it to be heroin. The total gross weight of the heroin was 1460 grams whereas the net weight was 1440 grams. Three homogeneous representative samples from each bags in small quantity were taken. They were of 5 grams each. Sample and the remaining bulk were sealed with the seal bearing No.122 of the customs Division. The empty card Board carton in which the heroin was concealed was also sealed with the seal bearing No.122 of the Customs division. The remainder of heroin was taken into possession vide recovery memo Ex. PB. It was signed by the appellant and attested by aforesaid independent witnesses, namely Mohinder Singh and Yusaf. A panchnama Ex. PC was also prepared by Inspector Kulwant Singh and it was signed by the appellant. It was also signed by the aforesaid mohinder Singh and Yusaf. Jamatalashi Ex. PE was also prepared which was signed by him. Sample seal was also prepared at the spot. The sample and the bulk were kept with the Assistant Inspector Customs, Raja Sansi. 3. On 2.8.1997, the appellant made a voluntary statement Ex. PF in his own hand and signed each page. It was also signed by aforesaid K. K. Gupta, Superintendent Customs. On 4.8.1997, the appellant made another voluntary statement Ex. PG in question answer form written by Inspector Kulwant Singh. That too was signed by the appellant. A certificate Ex. PG/1 was also given by the appellant to the effect that on his request and dictation, the aforesaid statement was written by Inspector Kulwant Singh. 4. The appellant along with remaining bulk and sample was produced before the learned Duty Magistrate, Amritsar. The samples were sent to the Central Revenue Control Laboratory, New Delhi and as per their report Ex. PK, it was found to be heroin. Ultimately, the heroin recovered from the appellant was destroyed on 23.2.1999 after obtaining orders from the Court. After completion of the investigation, complaint Ex. PL was filed in the Court. The appellant was consequently charged under sections 22 and 23 of the Act. 5. PK, it was found to be heroin. Ultimately, the heroin recovered from the appellant was destroyed on 23.2.1999 after obtaining orders from the Court. After completion of the investigation, complaint Ex. PL was filed in the Court. The appellant was consequently charged under sections 22 and 23 of the Act. 5. In order to substantiate the charge, the prosecution has examined Inspector Kulwant Singh PW1, who is the Investigating officer of this case. I do not feel the necessity of describing the investigation carried out by him as the same is detailed in the preceding paras. K. K. Gupta, Superintendent, Customs, PW2 was a witness to the recovery. Ashok Kumar Inspector Customs, PW3 stated that on 4.8.1997, he was posted as Inspector Customs, Raja Sansi, Airport amritsar. On that day, he was handed over the sample of the case by rajesh Sodhi, Assistant Commissioner, for depositing the same with central Revenue Control Laboratory, New Delhi. He deposited the sample on 5.8.1997 in the office of aforesaid Laboratory and obtained a receipt Ex. PH. Rajesh Sodhi, PW4, Deputy Commissioner, Central Excise commissioner, Chandigarh, stated that on 1.8.1997 he was posted as assistant Commissioner, Incharge, Raja Sansi Airport and on 1.8.1997 he was informed of the recovery. He then stated that the samples and remaining bulk were handed over by Inspector Kulwant Singh bearing seal No.122 of the Customs Department. Since there was no malkhana at Raja Sansi Airport, he on 4.8.1997, handed over the samples to Ashok kumar for taking the same to Central Revenue Control Laboratory. He then stated that the remaining case property was handed over to Inspector kulwant Singh for depositing the same at Malkhana at Amritsar. KK Sharma, Inspector, PW5 stated that on 4.8.1997, inspector Kulwant Singh deposited with him one tin container containing (said to be heroin) weighing 1 kg 425 grams covered with white cloth and sealed with seal No.122 of Customs, Amritsar. He stated that in august, 1997 he was posted as Incharge, Malkhana Customs at Amritsar. On 6.1.1999, he had given over this property to Inspector Kulwant Singh for producing the same in the Court. On the same day, he had again deposited the case property with him. On 30.1.1999, the said case property was authenticated for its destruction. He stated that in august, 1997 he was posted as Incharge, Malkhana Customs at Amritsar. On 6.1.1999, he had given over this property to Inspector Kulwant Singh for producing the same in the Court. On the same day, he had again deposited the case property with him. On 30.1.1999, the said case property was authenticated for its destruction. Judicial Magistrate Ist class who had come for destroying the case property had taken a sample and deposited the same in Malkhana and the bulk was destroyed on 23.2.1999. In this regard he proved the order of learned Magistrate Ex. PJ. Certain witnesses were given up as unnecessary whereas, as stated above, Mohinder Singh and Yusaf, the independent witnesses were given up as having been won over by the accused. 6. The plea taken up by the appellant as emerges from his statement recorded under section 313 of the Code of Criminal Procedure is that he was falsely implicated in this case. The carton belonged to some other passenger and the same was planted on him. According to him, no recovery was effected form him. So far as statements Ex. PF and pg are concerned, the stand taken by the appellant was that those statements were drafted by an officer of the Customs Department roughly and later on it was got written from him under threat, duress and at gun point. In fact those were not voluntarily made by him. To a specific question put to him as to whether he would lead any defence evidence, the reply was that being a foreign national, no body knew him and therefore, he was unable to lead any defence. 7. After appreciating the entire evidence, the appellant now stands convicted and sentenced as indicated herein above. I have heard Ms. Tanu Bedi, learned counsel for the appellant, Mr. Ashutosh Hoshiarpuri, learned Assistant Advocate general, Punjab representing the State of Punjab and Mr. MS Guglani, standing Counsel for Customs Department. With their assistance, I have gone through the trial court records very minutely. To start with, Ms. Bedi contends that harder is the punishment, more is the onus on the prosecution and according to her, the prosecution has not discharged that onus. MS Guglani, standing Counsel for Customs Department. With their assistance, I have gone through the trial court records very minutely. To start with, Ms. Bedi contends that harder is the punishment, more is the onus on the prosecution and according to her, the prosecution has not discharged that onus. She contends that it is the bounden duty of the prosecution to lead satisfactory evidence to clear all the reasonable doubts from the mind of the Court before asking for the conviction of the accused under the Act where the offences are punishable with stringent sentence which is not to be less than ten years or in a given case can be more than that and sentence of fine which is again not less than Rs one lac. According to her, while dealing with such type of cases, there cannot be any scope for concession to the prosecution, if it is found to be on slippery footing on account of certain vital flaws in it. Dwelling upon her arguments, Ms. Bedi submits that the main witnesses to the recovery are telling lies on each and every aspect and it appears that everything was done in one go and subsequently it is shown to have been done in different parts to cover up the procedural formalities. Ms. Bedi draws attention of the Court to the consent memo Ex. PA which according to her, is the ignition point. She states that if one reads Ex. PA carefully, it reflects that the search of the appellant was conducted before the Superintendent of Customs ( K. K. Gupta) and in the presence of independent witnesses whereas the said document runs contrary to another document Ex. PC (Panchnama)prepared at the spot. In Ex. PA there is reference to the Superintendent of Customs whereas in Ex. PC, which is signed by two independent witnesses, presence of Superintendent of Customs ( K. K. Gupta) is not shown. This shows that aforesaid K. K. Gupta Superintendent was not present at the time of alleged recovery and subsequently he was summoned at the Airport to complete the paper formalities. This makes the alleged recovery doubtful. Ms. Bedi then contends that document Ex. PA is even contrary to the statement of PW2 K. K. Gupta, and it is not balancing at all. Ms. This makes the alleged recovery doubtful. Ms. Bedi then contends that document Ex. PA is even contrary to the statement of PW2 K. K. Gupta, and it is not balancing at all. Ms. Bedi while pointing out certain other discrepancies in the statement of Inspector Kulwant Singh with regard to the factum of the arrest shown in the Panchnama contends that the quality of evidence brought on record is not trust worthy and this can lead the court to draw an inference that the investigation carried out in this case is not fair and honest. 8. In order to further demolish the case of the prosecution, in this regard, the learned counsel submits that document Ex. PB (Recovery cum Seizure memo) runs contrary to the statement of PW3 ashok Kumar and PW4 Rajesh Sodhi. As per their statements in the court, they are not the witnesses to the recovery whereas as per aforesaid ex. PB they are shown as participating officers by Inspector Kulwant singh. According to the learned counsel, the prosecution can not reconcile on this aspect and this flaw indicates that the recovery as shown is not true and is an effect of crude padding. This fact dents the case of the prosecution. 9. Ms. Bedi while developing her case still further in this regard contends that the conviction of the appellant is sought primarily on conscious possession of the contraband for which the prosecution is supposed to prove the element of possession and control over it. In the case in hand, the same is missing and therefore, even the presumption of culpable mental state under sections 35 and 54 of the Act cannot be drawn against him. The learned counsel states that even otherwise the trial court did not put any specific question to the appellant regarding the factum of conscious possession of contraband when he was examined under section 313 of the Code of Criminal Procedure, to explain the circumstances, whereas on the other hand there was a specific denial by him with regard to the possession of carton, stating that it belonged to some other passenger and has been foisted upon him. This material flaw also knocks at the bottom so as to discard the case of the prosecution. This material flaw also knocks at the bottom so as to discard the case of the prosecution. In support of her contentions, the learned counsel relies upon a judgment rendered by a Full Bench of this Court Kashmir Singh vs State of punjab 2006 (2) RCR (Crl.) 478. 10. Ms. Bedi then contends that the two confessions allegedly made by the appellant, upon which the prosecution is relying heavily are again not free from doubt and they cannot be said to be true and made voluntarily. She, however, fairly states that may be the confession recorded by a Custom Officer under section 108 of the Customs Act is not hit by section 25 of the Evidence Act but before maintaining conviction, the Court should see as to whether it is made voluntarily or otherwise under some duress and threat. According to her, the confessional statement allegedly made by the appellant was, in fact, under threat as specifically stated by him in his statement under section 313 of the Code of Criminal Procedure. Learned counsel contends that even otherwise, if one reads the so called confessional statements, the appellant had confessed that he had to supply the heroin to one Abdullah staying in India. He had also given his (Abdullah) contact numbers (telephone) but the confessional statements do not indicate those numbers at all and even therein it is not brought on record about the further investigation carried out in that direction. From this, the learned counsel wants to develop that the Customs authorities on its own had prepared the aforesaid documents and thereafter in order to show sanctity to their search got written the same from the appellant under threat. 11. Therefore, the so-called confessional statements recorded under section 108 of Customs Act lose their evidentiary value and once the said confessional statements are excluded from the zone of consideration, the prosecution has no other clinching evidence to prove the charge against the appellant. In support of her contention, the learned counsel relies upon a judgment of Honble the Apex Court rendered in Chandrakant chimnal Lal Desai V/s. State of Gujarat 1992 SCC (Criminal) 157. Besides attempting to demolish the case of the prosecution on the basis of aforesaid submissions with regard to two material aspects of the case, Ms. Bedi also launches a multi-pronged attack on the prosecution on the following grounds. Besides attempting to demolish the case of the prosecution on the basis of aforesaid submissions with regard to two material aspects of the case, Ms. Bedi also launches a multi-pronged attack on the prosecution on the following grounds. She contends that the case property was not produced in the court and there is no explanation forth coming from the side of the prosecution for its non production. According to her, this is a very vital flaw in the case of the prosecution. Dwelling upon her arguments on this aspect, Ms. Bedi contends that Ex. PJ on which the prosecution is relying heavily cannot be said to be an order passed by the concerned magistrate for destroying the case property. To the contrary, it was an order of authentication. In the absence of any specific order, the customs Department could not destroy the case property and its nonproduction causes prejudice to the accused. To develop her case, still further, Ms. Bedi, contends that even the card board carton which was having special designed cavities and allegedly carrying the contraband was also not produced in the Court. It was also sealed with seal No.122. According to the prosecution story, this carton was presented by the appellant himself for custom checking and therefore, this was the only proof of the possession of the contraband, still it has been with-held by the prosecution. This flaw also dents the case of the prosecution along with non production of the remainder of the heroin in the Court. In support of her contentions, learned counsel relies upon judgments of honble the Apex Court rendered in Madan V/s. State of Rajasthan 2002 (3) RCR (Criminal) 369; Jitendra V/s. M. P.2003 (4) RCR (Criminal) 360 sc and Abdul Gani V/s. State of M. P.2005 (4) RCR (Criminal) 194. 12. The next limb of argument advanced by Ms. Bedi is that there is difference in weight of sample when extracted at the spot and subsequently noticed by the Examiner for analysis. She contends that as per the evidence adduced on record, five grams of heroin was extracted from each of the packets but if one sees the document Ex. PH (test memo) in column No.3 and 6, five grams is over written as six grams and ultimately the weight found in the Laboratory was 8.5 grams. She contends that as per the evidence adduced on record, five grams of heroin was extracted from each of the packets but if one sees the document Ex. PH (test memo) in column No.3 and 6, five grams is over written as six grams and ultimately the weight found in the Laboratory was 8.5 grams. The learned counsel then submits that not only the prosecution is inconsistent on the point of quantity of sample even there is no consistency with regard to colour of the powder. She contends that Panchnama Ex. PC and Test memo report Ex. PH indicates that the powder allegedly recovered was brownish but Chemical Examiner report Ex. PK reflects that the sample was in the shape of white powder. The learned counsel then contends that when PW1 Inspector Kulwant Singh stepped into witness box, he, in order to cover up this weakness stated that the powder recovered was white. From this, the learned counsel wants to contend that the chances of tampering with the sample cannot be ruled out and this flaw, may also be taken seriously against the prosecution. In support of her submissions, the learned counsel has relied upon the judgments, rendered in Balwinder Singh vs State of Haryana, 1996 (3) RCR 317 SC; State of Haryana V/s. Ramesh Kumar, 2002 (3) RCR (Criminal) 738 (Pandh); Suresh Chandra vs. State of Rajasthan, 2002 (2) RCR (Criminal) 6; Ramesh V/s. NCB, 2006 (1) RCR (Criminal) 622; ram Sarup V/s. State of Haryana, 2006 (1) RCR 52. 13. The next argument advanced by Ms. Bedi is that the case property was not kept in safe custody. Developing her arguments, she contends that there is no evidence right from 1.8.1997, the date of alleged recovery upto 4.8.1997, all the samples and the remainder were kept intact in Malkhana. According to Rajesh Sodhi PW4 who was assistant Commissioner and Incharge of Raja Sansi Airport, the samples and the remaining bulk was handed over to him by Inspector Kulwant singh and K. K. Gupta, Superintendent Customs on 1.8.1997. He then states that on 4.8.1997, samples were handed over to Ashok Kumar for taking it to the Laboratory whereas remaining bulk was given to kulwant Singh. Admittedly the sample seal was not handed over to any independent witness. He then states that on 4.8.1997, samples were handed over to Ashok Kumar for taking it to the Laboratory whereas remaining bulk was given to kulwant Singh. Admittedly the sample seal was not handed over to any independent witness. From this, the learned counsel wants to built up a case for asserting that the seal samples and the bulk remained with the officials of the Customs Department only. Even the sample seal was also not sent to Laboratory along with sample for its cross checking. From all these flaws, possibility of tampering with the sample till it reached the hands of the Laboratory for analysis cannot be ruled out. In support of her contention, the learned counsel relies upon, the judgments rendered in Rajesh Awasthi V/s. State, 2005 (1) RCR (Criminal) 406; Baldev singh vs State of Punjab, 2005 (1) RCR (Criminal) 823 and Sukhdev singh vs State of Punjab 2006 (1) RCR (Criminal) 4. Ms. Bedi then submits that there is non compliance of sections 55 of the Act and this infirmity can also be taken into consideration against the prosecution. In this regard, the learned counsel has drawn my attention to the statements of Inspector Kulwant Singh (PW1), K. K. Gupta Superintendent Customs (PW2) and Rajesh sodhi (PW4 ). To strengthen her arguments, the learned counsel relies upon two judgments of Honble the Apex Court rendered in Gurbax singh vs State of Haryana, (2001) 3 SCC 28 and Thandi Ram V/s. State of Haryana, 1999 (2) RCR (Criminal) 85. Ms. Bedi lastly contends that the case of the prosecution is not getting any support from the independent witnesses who remained present throughout at the Airport and had even signed almost all the documents at the spot including the recovery memo. According to the learned counsel they have been given up by the prosecution as having been won over by the accused which explanation on the face of it, appears to be very funny as the appellant being a foreign national did not know those witnesses earlier and even otherwise he being in the Jail right from the first day of his arrest could not possibly approach them. This all creates doubt about the veracity of very recovery as projected and calls for an adverse inference to be drawn against the prosecution. This all creates doubt about the veracity of very recovery as projected and calls for an adverse inference to be drawn against the prosecution. To strengthen her submissions, the learned counsel relies upon two judgments of this Court rendered in State of Punjab V/s. Jeet Singh 1992 (3) RCR (Criminal) 15 (Pandh); Bhoolan vs State of Punjab 1995 (3)RCR (Criminal) 505 (Pandh ). 14. On the basis of the aforesaid submissions, Ms. Bedi contends that the prosecution has not been able to prove its case against the appellant beyond any shadow of reasonable doubt and therefore, his conviction as recorded by the trial court on both the charges deserves to be set aside. While controverting the aforesaid arguments Mr. Guglani appearing for Customs Department (respondent No.2) contends that a huge recovery of heroin has been effected from the appellant, the latest price of which runs into more than Rs.1 crore, the same at least cannot be planted by the Customs Department. He, then, contends that the common practice adopted is that all the crew members of any Airline keep their baggage with themselves when they board the aircraft and for the purpose of clearance of custom, they have to present their luggage before the custom officials. He then submits that generally no identification slips are tagged with their luggage. In the case in hand also, the appellant himself had presented the card board carton containing grapes. Since it was specially designed carton, it gave rise to suspicion about the concealment of some contraband and this led to the conduct of search which ultimately, yielded a huge bulk of heroin. Mr. Guglani then submits that before effecting the recovery, inspector Kulwant Singh followed all the statutory provisions. K. K. Gupta, Superintendent Customs was also called at the spot in whose presence, the recovery was effected. The recovery memo is also attested by two independent witnesses who were sent for at the spot. Simply that they have been given up by the prosecution during the trial as having been won over, that by itself would not dent the case of prosecution if the case of the prosecution is otherwise proved from the statement of two main official witnesses to the recovery from the Customs Department having no personal enmity against the appellant at least who incidently happens to be one of the members of crew party. Mr. Mr. Guglani then contends that the discrepancies pointed out by Ms. Bedi in the statements of aforesaid two officials are not that material so as to dislodge the case of the prosecution in its totality. Dwelling upon his arguments further, Mr. Guglani then submits that the case property was kept in safe custody till it was sent to central Revenue Control Laboratory, Delhi for testing and in order to prove the complete link evidence, the prosecution is relying upon the statement of Ashok Kumar, Inspector customs (PW-3) Rajesh Sodhi, the then Assistant Commissioner and Incharge of Raja Sansi Airport (PW-4)and K. K. Sharma (PW-5) who was Incharge of Malkhana customs at amritsar. According to learned counsel even if the seal of the Customs department bearing impression 122 was not handed over to one of the independent witnesses who happened to be present at the time of recovery, it is not going to cause any damage to the case of the prosecution at all. 15. Mr. Guglani then submits that the confessional statements of the appellant recorded u/s 108 of the Customs Act bind him, being legally admissible as they are not hit by section 25 of Indian Evidence act. He then contends that the appellant never retracted from the same except for the first time when his statement was recorded u/s 313 cr. P. C. , whereas in between he had ample opportunity to do so. The learned counsel further contends that according to the plea of the appellant now emerges in answer to one of the questions put to him while being examined u/s 313 Cr. P. C. , is that his confession was drafted by the custom officials and thereafter, he was threatened at gun point to write it in his own hand. If it had so happened with him, he could at least retract from the same when his police remand was over within 2/3 days and he was produced before the Illaqa Magistrate for sending him to judicial custody and the same being not done, it cannot now be said that the confessions made by him before the custom officials were not made voluntarily. Mr. Guglani has drawn my attention to the statement (exhibit PF) made by the appellant in his own hand. Mr. Guglani has drawn my attention to the statement (exhibit PF) made by the appellant in his own hand. He has also drawn my attention to an another statement (exhibit P-G) which is in question answer form and at the end of the said statement, there is a certificate (exhibit PG/1) in the hand of the appellant. Learned counsel then submits that may be in the initial statement Ex. PF, the telephone numbers of one Abdullah of India are not mentioned, the same would not make any difference or create any doubt about the genuineness of the confessional statement. He, however, fairly states that the custom authorities have not brought on record an outcome of the investigation carried out in that direction but the file maintained by the Department reveals that the telephone numbers supplied by the appellant were fictitious. Strengthening his arguments with regard to the admissibility of the aforesaid statements recorded u/s 108 of Customs Act, Mr. Guglani relies upon a judgment of Honble the Apex Court rendered in m Prabhu Lal vs. Assistant Director, Directorate of Revenue intelligence 2004 (1) RCR (Crl.),160 and Ramesh Chander Mehta V/s. State of West Bengal, A. I. R.1970 (S. C) 940 and other two judgments of this court rendered in Surinder Singh V/s. the Intelligence Officer, directorate of Revenue Intelligence, Amritsar Criminal Appeal No.934-DB of 2003 ( Date of decision 22-12-2005) and Mohinder Singh alias Minda and another V/s. Inspector customs, Customs Division, amritsar 2003 (2) RCR (Crl.)373. To meet the other arguments advanced by Ms. Tanu Bedi with regard to the disposal of case property pursuant to the order dated 30-01-1999 (exhibit P-J) passed by the learned Judicial Magistrate (I)Class, Mr. Guglani contends that may be in so many words, the Judicial magistrate, Amritsar has not said that the case property be destroyed but the application moved by the Customs Department on 28-01-1999 was in fact for that very purpose only. While drawing my attention to the order, learned counsel states that an inventory was also attached along with the application and in the presence of the learned Judge even one sample of 5 gms. was again separated from the bulk; put in a container and resealed with the seal of 122 as well as with the seal of court bearing impression SS (stands for Sarabjit Singh Dhaliwal, Judicial Magistrate ). was again separated from the bulk; put in a container and resealed with the seal of 122 as well as with the seal of court bearing impression SS (stands for Sarabjit Singh Dhaliwal, Judicial Magistrate ). Learned counsel then contends that a categoric statement has also been made by Inspector Kulwant Singh that after obtaining the orders (exhibit p-J), the case property was destroyed. Even Incharge Malkhana Customs (K. K. Sharma) (PW-5) has also stated on oath that the case property was destroyed on 23-02-1999 on the basis of order, exhibit PJ. There is no reason to disbelieve them on the basis of the aforesaid facts on record. Mr. Guglani contends that non production of the case property cannot be said to be fatal to the prosecution and, the appellant cannot derive any benefit on that aspect. 16. Relying upon the aforesaid submissions, Mr. Guglani submits that the prosecution has been able to prove the conscious possession of the contraband ( 1440 grams of heroin) qua the appellant without any shadow of doubt and, therefore, his conviction and sentence, as already recorded, deserves to be affirmed. Mr. Ashutosh Hoshiarpuri, learned Assistant Advocate general adopts the arguments advanced by Mr. Guglani. After hearing rival contentions of learned counsel for either side and going through the records minutely, I am of the view that the prosecution has been able to prove the charges against the appellant beyond shadow of reasonable doubt. My reasoning for arriving at the said conclusion is as under:- Ms. Bedi has made an attempt to show that the recovery of contraband is not effected n the manner it is projected by the prosecution, which material infirmity, according to her, knocks at the bottom. However, I do not agree with said submission. I have once again very carefully perused the documents Exhibits PA, PB and PC. The evidence of the official witnesses has also been re-appreciated by me in the light of the aforesaid documents, Exhibit PA is in the hand of the appellanthimself, which reads as under:- "i, Noor Aga, son of Ab Khanan, resident of kabul Afghanistan working as a dispatcher in Ariana afghan Airlines reached at Amritsar airport in flight No.306 on 1.8.97 at about 1800 hrs. After immigration checks i reported at the Customs baggage control clearance during the course of checking custom officer on duty recovered heroine which was concealed in the specially designed eaxities of car board carton which contained grapes. After recovery the custom officer informed his senior officer and was asked whether I would like to present myself for personal search before a Magistrate or a gazetted officer. I opted for search before a gazetted officer. My personal search was conducted before the Superintendent of Custom in presence of two independent witnesses. " 17 The said document is initialled by the appellant himself in english and attested by Inspector Kulwant Singh, which is countersigned by K. K. Gupta, Superintendent Customs. No doubt, if one reads the statement of Inspector Kulwant Singh, it reflects that it was an option for search only whereas the reading of the complete document exhibit PA shows that the same was prepared after the search was conducted in the presence of the witnesses. Ms. Bedi wanted to make capital out of it, stating that the document Ex. PA does not reconcile with the statements of the witnesses to recovery, but I am of the view that the attempt made by the learned counsel is a futile exercise. K. K. Gupta, superintendent Customs ( PW2) has also stated in his examination-inchief that an option was given to the accused for his search before a gazetted officer, who had disclosed to him that he was a gazetted officer. Had it been a case of applicability of mandatory provisions of Sec.50 of the Act, the situation could be favourable to the appellant for the reason that in that eventuality, the prosecution could not take the advantage of Exhibit PA so as to show the compliance of the provisions of Sec.50 of the Act and the appellant could certainly avail of benefit on that aspect. May be, the custom officials at that point of time had prepared Exhibit PA in order to show the compliance of the provisions of section 50 but in the light of the latest judgment of Full Bench of honble the Apex Court in State of Himachal Pradesh vs. Pawan kumar, 2005 (2) RCR (Criminal) 621, the provisions of the aforesaid section are not attracted in the case in hand. Therefore, in my considered view, even if there is some discrepancy in the statements of the witnesses to recovery vis-a-vis document Exhibit PA, the same cannot be said to be a vital flaw in the case of the prosecution for which the appellant may derive any advantage. 18. I have also perused Exhibit PB at page 29 of the trial Court records. Statements of PW3 and PW4, namely, Ashok Kumar Inspector and Rajesh Sodhi, Deputy Commissioner respectively have also been reappreciated in the light of the aforesaid documents. Ashok Kumar PW3 when stepped into the witness box, only talks about August 4, 1997 on which date he was handed over the sample of the case by Assistant commissioner Mr. Rajesh Sodhi ( PW-4 ). Similarly Rajesh Sodhi, who at the time of alleged recovery was Assistant Commissioner at Raja sansi Airport , also states that the recovery was made by Inspector kulwant Singh and Inspector K. K. Gupta and he was informed about this recovery, whereas in column No.6 of recovery memo/seizure memo ( Ex. PB) the names of Rajesh Sodhi and Ashok Kumar are shown as participating officers at number 1 and 6 respectively. The argument advanced by Ms. Bedi was that if the aforesaid two witnesses were members of the party present at Raja Sansi Airport, their signatures should have been obtained on the recovery memos or at least they should have deposed on oath that the recovery was effected in their presence. At the first blush, the argument appeared to me some what convincing, but after re-examining the recovery/seizure memo ( Ex. PB), where the names of the participating officers are mentioned (in column no.6), the said argument has to fall on the ground. There are as many as 13 names including certain Sepoys and the driver. It appears that in routine, whenever any recovery is effected by the officials of the Custom department, the names of all the officials, posted at a particular place are shown as participating members including the driver. Presumably this is the reason that the names of Rajesh Sodhi and Ashok Kumar pws figure in the complete list of officers. The fact remains that ashok Kumar and Rajesh Sodhi were posted as Inspector Customs and assistant Commissioner Incharge respectively at Raja Sansi Airport only but not participated at the time of alleged recovery. Presumably this is the reason that the names of Rajesh Sodhi and Ashok Kumar pws figure in the complete list of officers. The fact remains that ashok Kumar and Rajesh Sodhi were posted as Inspector Customs and assistant Commissioner Incharge respectively at Raja Sansi Airport only but not participated at the time of alleged recovery. It may be mentioned here that the discrepancy pointed out by ms. Bedi with regard to document Ex. PC is factually incorrect. Her contention was that there is a reference to Superintendent of Customs in ex. PA, whereas in Ex. PC his presence is not shown and this goes to show that he was not present at the time of alleged recovery. I have very carefully seen Ex. PC ( Panchnama) once again. There is a reference to the presence of Superintendent Customs at page 2 of the said document. Ex. PC is even countersigned by K. K. Gupta, Superintendent customs at page 3. This indicates that K. K. Gupta was very much present at the time of alleged recovery and has countersigned Exhibits pa as well as PC. There is, thus, no infirmity in the document Ex. PC as pointed out by Ms. Bedi. The argument of the learned counsel in this regard has no substance in it and is, therefore, repelled. 19. In my view, an attempt made by Ms. Bedi with regard to possession and control over the contraband qua the appellant to demolish the case of the prosecution is again without any positive outcome. The case set up by the prosecution is that the appellant being a member of a crew party, was in possession of his luggage, which included the card board carton, from which the recovery of heroin was allegedly effected. The appellant himself had presented the said carton along with the other luggage for custom clearance. From these facts at least one thing is clear that the carton which was carrying the contraband, was under his immediate control. The argument advanced by Mr. Guglani is that the luggage which was being carried by the crew members, had no specific identification slips as in the case of an ordinary passenger travelling in an aircraft. From these facts at least one thing is clear that the carton which was carrying the contraband, was under his immediate control. The argument advanced by Mr. Guglani is that the luggage which was being carried by the crew members, had no specific identification slips as in the case of an ordinary passenger travelling in an aircraft. So what was being carried in the carton was within the knowledge of the appellant alone and, therefore, the element of possession and control of the contraband qua the appellant is writ large and the presumption of culpable mental state under Sections 35 and 54 of the Act has to be drawn against him. 20. The Full Bench judgment rendered in Kashmir Singhs case ( supra), on which Ms. Bedi wanted to set store in fact would not come to her rescue as in the said case the Honble Bench has observed that the presumption of Sections 35 and 54 would be dependent upon the facts of each case and the accused should be given an opportunity to explain the circumstances rebutting the said presumption on a specific question being put to him on conscious possession at the time of his examination under Sec.313 of the Code of Criminal Procedure. But in the case in hand, the crystal clear facts lead to an irresistible conclusion that the carton carrying the contraband was in exclusive possession of the appellant. Even otherwise, the statement of the appellant recorded under Sec.313 of the Code of Criminal Procedure, reflects that each and every incriminating evidence was put to him, including the fact that he himself had produced the card board carton containing contraband or clearance before the Custom officials. In my view, Ms. Bedi has made an attempt to raise storm in a tea cup. Not only the prosecution has been able to prove the conscious possession of the contraband qua the appellant, the confessional statements ( Exhibits PF and PG) recorded under Sec.108 of the Custom Act can also be made basis for conviction. I have gone through both the statements once again very minutely. Exhibit PF is prepared on August 2, 1987, which is in the hand of the appellant himself and even admitted by the appellant himself while answering to question No.9 in his statement recorded under Sec.313 Cr. P. C. , may be stating that it was got written from him under duress. Exhibit PF is prepared on August 2, 1987, which is in the hand of the appellant himself and even admitted by the appellant himself while answering to question No.9 in his statement recorded under Sec.313 Cr. P. C. , may be stating that it was got written from him under duress. In the aforesaid Ex. PF, the appellant states that he knew one Farid Ahmad for the last about one year, who was running the clothes shop as he used to purchase clothes from him. He had given him a handwritten slip on which two telephone numbers of Abdulla of Delhi had been written, one of his residence and the other was his mobile phone. The said chit was recovered during his personal search. Said Abdulla had to collect the card board carton from him in hotel Ritz, but he was not aware of the whereabouts of said Abdulla. Another fact which is mentioned in the said confessional statement is that the appellant was totally ignorant about the concealment of heroin in the said card board carton and some one had played a fraud upon him by not telling the truth and he had brought that carton on good faith. There is reference to his seven small children also in the said statement. All these facts go to show that the aforesaid confessional statement is not at all under threat or duress and is made voluntarily by the appellant. 21. I have seen another statement Ex. PG recorded on 4.8.1997, which is in question-answer form. This statement appears to have been recorded during the police remand as the trial court record reveals that the appellant was remanded to police custody by the Court on 3.8.1997. In my view, even the said statement cannot be said to be made under any threat or duress. 22. It is a settled legal position that the statement recorded under Sec.108 of the Custom Act is not hit by Sec.25 of the indian Evidence Act and can alone be made basis for conviction, if it is worthy of credence. The conviction can be made even on retracted confession if the Court finds that the accused has retracted from his earlier confession without any basis. In the case in hand, the confession was made by the appellant on two dates i. e.2-8-1997 and 4.8.1997. The conviction can be made even on retracted confession if the Court finds that the accused has retracted from his earlier confession without any basis. In the case in hand, the confession was made by the appellant on two dates i. e.2-8-1997 and 4.8.1997. After his police remand was over, he was produced before the judicial Magistrate for the purposes of remanding him to judicial custody. At that time possibly there could not be any threat or duress loom large on him as the prosecution agency had already washed its hands from the investigation. He could make a statement before the court that he wanted to retract from his earlier confession. The matter does not rest here. He was being produced within the statutory period before the court concerned during the judicial remand till the submission of final report. Even at that stage, he could retract from his earlier confessions, but the same is not done. The evidence in this case was recorded in the year 1999 when for the first time certain suggestions in this regard were put to the witnesses from the defence side or when he was examined under Sec.313 of the Code of Criminal Procedure, he specifically retracted the same alleging that rough confessional statements were drafted by an officer of the Custom Department and later on got written from him under threat, duress and at gun point. In my view this cannot be said to be a case of retracting from the confession so as to take it out of zone of consideration. In one of the judgments of Honble the Apex Court rendered in Pon Adithan Vs. Deputy Director, Control Bureau, Madras, delivered on July 16, 1999 ( down loaded from internet ), under almost same set of circumstances, a confessional statement was attacked from the side of the defence on the ground that the Court below had committed an error in relying upon the said confessional statement when it was retracted by the appellant categorically in his statement under Sec.313 Cr. P. C. stating that it was not made by him while he was in custody Their lordships while dealing with this aspect observed as under:- "moreover, we have, in this case, the confessional statement ( Ext. P-3) made by the appellant which corroborates the evidence of P. W.1. It was, however, submitted by Mr. P. C. stating that it was not made by him while he was in custody Their lordships while dealing with this aspect observed as under:- "moreover, we have, in this case, the confessional statement ( Ext. P-3) made by the appellant which corroborates the evidence of P. W.1. It was, however, submitted by Mr. Lalit that the Courts below had committed a grave error in relying upon the said confessional statement and this Court also should not rely upon the same as the accused had retracted the same and categorically stated that it was not voluntarily made by him. He submitted that the said statement was made while he was in custody and as stated by the appellant in his statement under Sec.313 cr. P. C. , it was given by him under threat and pressure. P. W.1 had taken the appellant to her office and the confessional statement came to be recorded at about 8 P. M. , no doubt, while the appellate was in custody of P. W.1. , but that by itself cannot be regarded as sufficient to hold that the confessional statement was made by the appellant under pressure or compulsion. No complaint was made by the appellant when he was produced before the Magistrate on the next day nor he had made any complaint thereafter till his statement came to be recorded under Sec.313 Cr. P. C. 23 It was only during the trial that a suggestion was made to p. W.1 and subsequently when the appellant gave a statement under Sec.313 Cr. P. C. , he stated that the confessional statement was given by him under threat and pressure. Even while giving his statement under Sec.313 cr. P. C. , the appellant had not stated what was the nature of the threat given to him or in which manner the pressure was brought upon him. It was a vague statement. If in such circumstances the trial Court held that the confessional statement statement was voluntarily made and thought it safe to rely upon the same. It cannot be said that it committed any error in doing so. We are also of the view that the said confessional statement was made by the appellant voluntarily and, therefore, it can be used against him. " 24. In another judgment rendered by Honble the Apex Court in m. Prabhulal Vs. It cannot be said that it committed any error in doing so. We are also of the view that the said confessional statement was made by the appellant voluntarily and, therefore, it can be used against him. " 24. In another judgment rendered by Honble the Apex Court in m. Prabhulal Vs. Assistant Director, Directorate of Revenue intelligence, 2004 (1) RCR (Criminal ) 160, their Lordships while observing that the confessional statements made by the appellants were voluntary, upheld their conviction despite the fact that independent witnesses were not examined. So is the position in the present case also. Therefore, I am of the confirmed view that the aforesaid two confessional statements ( Exhibits PF and PG) are made voluntarily by the appellant and can be used against him. To be fair to Ms. Tanu Bedi, I must say that the judgment relied upon by her in Chanderkant Chimanal Lal Desais case ( supra)is distinguishable on facts. 25. I do not find any substance in the other arguments advanced by Ms. Bedi with regard to non-production of the case property in the court. In this regard, the learned counsel has relied very heavily upon the order (Exhibit PJ) passed by Judicial Magistrate (Ist) Class, Amritsar on 31-01-1999. The admitted position is that the recovery allegedly effected is dated 01-08-1997. The application (exhibit PJ) was instituted in the court on 28-01-1999 as is clear from the first four lines of the said document where the number of application and date of institution are mentioned. The evidence on oath is that pursuant to the order (exhibit pj), the case property was destroyed on 23-02-1999. The document (exhibit PJ) indicates that the custom authorities, in fact, wanted a certificate u/s 110 (1b) of Customs Act 1962 for the purposes of certifying the correctness of the inventory including drawing of another representative sample of the goods in the presence of the Magistrate. The order (Exhibit PJ) also indicates one sample of 5 gms. was separated and the rest of material was again put in the same container and re-sealed with the seal of Customs Department bearing no. "122" and also with the seal of court bearing impression `ss of the Judge himself. The main attack launched by Ms. Bedi was that it was an order of authentication and in the absence of any specific order, the Customs Department could not destroy the case property. "122" and also with the seal of court bearing impression `ss of the Judge himself. The main attack launched by Ms. Bedi was that it was an order of authentication and in the absence of any specific order, the Customs Department could not destroy the case property. To a specific query put to Mr. Guglani by the Court with regard to aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained u/s 110 (1b) of customs Act. He states that in this regard, a sample as per the provisions contained in sub clause (c) to clause (1b) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed. May be, in my view, some irregularities are committed in this case by the Customs Department while obtaining the order (Exhibit pj) from the court for the reason that if the case property was to be destroyed, at least a notice should have been given to the accused on the application moved u/s 110 (1b) of the Customs Act or at least a specific request in this regard should have been made in the application but at the same time, the aforesaid irregularity cannot be said to be a vital flaw in the case of the prosecution for which the appellant can derive any benefit especially under the circumstances when confessional statements made by the appellant are held to be made voluntary as observed by me hereinabove. The judgments cited by learned counsel for the appellant in this regard are certainly distinguishable on facts and, therefore, of no help to the appellant. Similarly non-production of card board carton is also not fatal to the prosecution. Much has been said by Ms. Bedi with regard to difference in weight of the sample. I do not find any substance even in this limb of argument. I have very carefully examined a test memo report (exhibit ph), which is prepared by Inspector Kulwant Singh (PW-1 ). Learned counsel for the appellant has submitted that the figure 5 which stands for grams has been overwritten as 6 grams at two places in column nos.3 and 6. I have very carefully examined a test memo report (exhibit ph), which is prepared by Inspector Kulwant Singh (PW-1 ). Learned counsel for the appellant has submitted that the figure 5 which stands for grams has been overwritten as 6 grams at two places in column nos.3 and 6. The learned counsel then argued that the weight of the sample indicated by the chemical examiner when it reached the laboratory was 8.7 gms. In fact, in my view, there is no overwriting in figure 5 in column nos.3 and 6. I have minutely seen the running hand of the concerned official ( Kulwant Singh) at other places also. Even at figure 3, it appears that there is some overwriting whereas it is not so. This all reflects that the concerned official who has prepared the test memo is in the habit of writing 3, 5 in a way which gives the impression that some overwriting has been done. On the other hand, the weight of sample (8.7 gms) which reached the hands of chemical examiner for analysis was, in fact, the gross weight and not the accurate weight of heroin which was extracted for the purposes of sample. The same remains 5 gms. only. Inspector Kulwant Singh has categorically stated that representative samples from each packet were extracted in small quantity to the extent of 5gms. and then the said samples and the remaining bulk were sealed separately. The samples might have been put in some packing which could possibly weigh about 2-3 gms. This appears to be the reason that gross weight of sample was 8.7 gms. reached the hands of the chemical examiner for analysis. 26. Ms. Bedi at the same time also made an attempt to point out discrepancy with regard to the colour of the powder. No doubt, initially it is shown to be brown but when Inspector Kulwant Singh stepped into the witness box, he stated that it was white powder. In the analysts report also, it is shown as white powder. In my view, this would not make any difference as the sample which reached the hands of chemical examiner for testing has shown the positive sign of heroin. Even otherwise, while repelling the other argument advanced by Ms. Bedi, my firm view is that the samples throughout remained in safe custody of three persons at different stages. In my view, this would not make any difference as the sample which reached the hands of chemical examiner for testing has shown the positive sign of heroin. Even otherwise, while repelling the other argument advanced by Ms. Bedi, my firm view is that the samples throughout remained in safe custody of three persons at different stages. Initially on 01-08-1997, the samples and the remaining bulk were handed over to Rajesh Sodhi (PW-4), the then Assistant commissioner and Incharge of Raja Sansi Airport. He states on oath that there is no Malkhana at Customs Department at Raja Sansi Airport. On 04-08-1997, the samples were handed over to Inspector Ashok Kumar (PW-3) who deposited the same on 05-08-1997 with the concerned official of Central Revenue Control Laboratory, New Delhi. It has also come in the subtantive statement of Rajesh Sodhi (PW-4) that he had handed over the remaining case property to Inspector Kulwant Singh for depositing the same in Malkhana at Amritsar. Statement of Inspector k. K. Sharma (PW-5) is to the effect that on 04-08-1997, Kulwant singh had deposited with him one tin containing heroin covered with the cloth and sealed with no.122 of Customs Division, Amritsar. From the aforesaid facts, it can be safely concluded that till the samples reached the hands of chemical examiner for analysis, they were not tampered with at any stage. So is the position with the remaining bulk till it was destroyed on 23.2.1999 as is clear from the statement of K. K. Sharma (PW-5 ). It also goes to the credit of the prosecution that the sample was sent to the chemical examiner without any delay. 27. On the basis of the aforesaid discussion, the arguments advanced by learned counsel for the appellant carry no weight. The judgments cited by her in this regard in support of her contentions, as referred to above, are of no assistance. 28. The other argument advanced by Ms. Bedi with regard to the non compliance of sections 55 is again of no consequence. It is well settled law and held in umpteen judicial pronouncements that provisions of section 52 are not mandatory in nature and non compliance thereof would not ipso facto be considered against the prosecution unless a prejudice is shown to have been caused. In my view, in the instant case, no such prejudice is caused to the appellant at all. It is well settled law and held in umpteen judicial pronouncements that provisions of section 52 are not mandatory in nature and non compliance thereof would not ipso facto be considered against the prosecution unless a prejudice is shown to have been caused. In my view, in the instant case, no such prejudice is caused to the appellant at all. To be fair to learned counsel, I may observe here, may be at the cost of repetition that it has come in the statement of Rajesh Sodhi (PW-4) who was the Incharge of the Airport that there is no Malkhana at the Airport and therefore, he had kept the case property with him upto 04-08-1997. He being Assistant commissioner, Customs was the Incharge of the team stationed at the airport. For all intents and purposes, he was the person who has to keep the case property in his safe custody. Intention of the Legislature while enacting Sec.55 of the Act was that the case property is to be kept in safe custody of the Incharge of the Police Station for the purposes of producing it before the court (Illaqa Magistrate) alongwith the accused. The same has been done in the present case. As per the case of prosecution, the appellant was apprehended on 01-08-1997, and the customs officials completed all the formalities on the night intervening 1/2-08-1998. The formal arrest of the appellant was shown on 02-08-1997 and he was produced before the Illaqa Magistrate for the first time on 03-08-1997 along with the case property as is clear from the zimni orders of even date. On that day, his police remand was also sought. This virtually, in my view, amounts to compliance of Sec.55 of the act and therefore, the arguments advanced by learned counsel for the appellant in this regard has to be repelled. The judgments of Honble the supreme Court cited by her in Gurbax Singh and Thandi Ram cases (supra) are, thus, not applicable on facts. No other point has been urged before me by either side. 29. As a sequel to the aforesaid discussion, in my considered view the prosecution has been able to prove both the charges against the appellant. In other words, the conscious possession of the contraband (heroin) qua the appellant is established to the hilt. The net result is that the instant appeal is dismissed being devoid of any merit. 29. As a sequel to the aforesaid discussion, in my considered view the prosecution has been able to prove both the charges against the appellant. In other words, the conscious possession of the contraband (heroin) qua the appellant is established to the hilt. The net result is that the instant appeal is dismissed being devoid of any merit. Before parting with the judgment, I must leave a note of appreciation for Ms. Tanu Bedi, learned counsel for the appellant who has rendered complete assistance to this court while arguing on each and every aspect of the case.