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2007 DIGILAW 692 (PAT)

Naimuddin @ Tharu v. State Of Bihar

2007-04-05

C.M.PRASAD

body2007
Judgment C.M.Prasad, J. 1. This appeal is against the Judgment dated 25.11.2002 of the 4th Additional Sessions Judge. Motihari. passed in Excise Case No. 38/98/04/02 whereby the appellant has been convicted under Sec.23 of the NDPS Act and sentenced to R.I. for ten years and a fine of Rs.1,00,000.00 and in default of payment of fine to undergo R.I. for one year. 2. The prosecution commenced with the complaint (Ext.6) filed by Prakash Sahay, Inspector. Customs Department, posted at Land Custom Station, Raxaul. It was alleged in the complaint that a secret information was received by the officials of the department about movement of Charas from Nepal to India and acting on this information he (complainant) along with personnels of the department was on strict survelience at Bus Stand, Koiria Tola, Raxaul. In course of that a person was found moving in suspicious manner in Koiria Tola, Bus Stand. The person was enquired about his identity whereupon he became nervous and started giving evasive reply. The person was asked to accompany them to the Customs office and that while proceeding on the way to the office that person confessed that he was carrying Charas with him. That person (who is the appellant) was produced before Superintendent. Land Customs Station. Raxaul and two independent witnesses were also called and a search of the person (appellant) was carried on and as result of search 4 kgs. of Charas concealed in anklet of his two legs was recovered. After recovery, seizure list (Ext.3) was prepared by the complainant Prakash Sahay (P.W.4) and the seizure list was signed by the two independent witnesses Bablu Shrivastava and Vijay Shrivastava. Thereafter, the voluntary confessional statement (Ext.2) of the appellant was recorded in presence of two independent witnesses and the confessional statement was written by one Manoj Kumar because the appellant was illiterate and he was unable to write his confession. In his confessional statement the appellant disclosed his identity as Naimuddin @ Tharu son of Sahebjan Mian of village Buddhuanha P.S. Chauradano, District East Champaran and he also stated that at that time he was residing in the house of one Jagdish Prasad in Koiria Tola, Raxaul. The appellant was also interrogated by the Superintendent, Customs. Jagdish Prasad, (P.W.3) which was written by the said Manoj Kumar. The appellant was also interrogated by the Superintendent, Customs. Jagdish Prasad, (P.W.3) which was written by the said Manoj Kumar. The interrogatory statement has been marked as Ext.2 and it bears the signatures of P.W.4 on its pages and the signatures have been marked as Ext. 1. 1/1. 1/2 and 1/3. A Panchanama Ext.4 was also prepared by the complainant (P.W.4) with regard to recovery of Charas and it was signed by the witnesses Vijay Kumar Shrivastava and Bablu Srivastava. A sample of recovered Charas was taken, sealed and it was sent for chemical examination. Ext.5 is a chemical examination report of Assistant Chemical Examiner. Government Opium and Alkaloid Works, Gazipur (U.P) that the sample was received in duly sealed condition and on examination it was found to be Charas within the meaning of NDPS Act. 1985. The recovered Charas was also sealed and kept with the Customs Department in its godown. The cognizance of offence was taken on the complaint filed by the complainant and the appellant was put on trial and after conclusion of trial he has been convicted and sentenced as above. 3. As many as nine witnesses were examined by prosecution. P.W. 1 Krishna Kumar Sharma is a constable in Customs Department and he was a member of the raiding party, which apprehended the appellant with the Charas . P.W. 2 Binod Kumar is Inspector, Customs and he was also a member of the raiding party. P.W.3 Jagdish Prasad is the Superintendent of Customs in whose presence the search and seizure is said to have been made. P.W.4 Prakash Sahay is the complainant himself. RW. 5 Bhola Nath Singh. 7 Amar Singh and 8 Birendra Prasad, are Sepoys in the Customs Department who had comprised the raiding party. RW, 6 Rana Singh who is the driver of the jeep on which the raiding party had moved. P.W.9 Ramlakhan Rai is the Inspector, Customs who has brought on record the destruction report about the destruction of the seized Charas. 4. Firstly, I take UP the evidence of the complainant (P.W.4) who deposed that on 11.10.1998 while he was posted as Inspector in Land Customs Office, Raxaul, he received a secret information that Charas was being carried near Koiria Tola. On receiving this information he constituted a raiding party and proceeded towards Koiria Tola. 4. Firstly, I take UP the evidence of the complainant (P.W.4) who deposed that on 11.10.1998 while he was posted as Inspector in Land Customs Office, Raxaul, he received a secret information that Charas was being carried near Koiria Tola. On receiving this information he constituted a raiding party and proceeded towards Koiria Tola. Bus Stand where he saw that one person was feeling some difficulties in his movement. Noticing this he interrogated that person whereupon he became nervous and on touching his body it was felt that he was carrying something and on enquiry he stated he was carrying Charas. Learning this he took that person (appellant) to the Customs office and in presence of Superintendent of Customs in the office and also in presence of the two independent witnesses, 4 kgs. of Charas was recovered from the possession of the person (appellant). He deposed that he prepared a seizure list with regard to the recovery and the seizure list was signed by the two witnesses. The seizure list has been marked as Ext.3. The complainant further deposed that a Panchanama of the recovered Charas was also prepared and the panchanama was also signed by the two independent witnesses, namely, Vijay Kumar Shrivastava and Bablu Shrivastava. The Panchanama has been marked Ext.4. The complainant further deposed that the apprehended person disclosed his name as Naimuddin @ Tharu (Appellant) and he also confessed and the confessional statement was written in the pen of Manoj Kumar because the appellant was illiterate. The confessional statement has been marked as Ext.2/1. The complainant also deposed that he took sample from the seized Charas and it was sent for chemical examination to Government Opium Alkaloid Works. Gazipur (UP.) and the examination report was also received and the chemical report has been marked Ext. 5. The complainant continued to depose that he got his complaint prepared and then he gave it to Shri Lok Bahadur Sahay, the lawyer for Customs Department for filing a report in Court. He also deposed that the Charas recovered from the appellant was deposited in the godown of the Customs Department. At para-12 of his cross-examination he accepted that the complaint petition filed by him does not bear his signature. Here the learned counsel for the appellant argued that the complaint petition does not bear the signature of the complainant. He also deposed that the Charas recovered from the appellant was deposited in the godown of the Customs Department. At para-12 of his cross-examination he accepted that the complaint petition filed by him does not bear his signature. Here the learned counsel for the appellant argued that the complaint petition does not bear the signature of the complainant. The learned A.P.R replied that the complaint petition bears the signature of the lawyer through whom it was filed but mistakable due to hurry in work the signature of the complainant could not be put on it, but the complaint petition was prepared by the complainant and the complainant has also deposed in support of the averment in the complaint. At para-16 of his cross-examination, the complainant admitted that the seizure list does not bear the signature of the Superintendent of Customs. Here it was argued by the learned A.P.R that the seizure list has been signed by the complainant and the witnesses and the Superintendent of Customs (P.W.3) has fully supported in his evidence the prosecution case about the search and seizure having been made in his presence. The complainant further stated at para-16 that a format was existing in the department regarding recovery of seizure and that the seizure list was prepared in that format. He also deposed that in para-17 for the purpose of seizure and also for security reasons the appellant had been brought to Customs office for conducting a search of the appellant. He also deposed at para-18 that the seized Charas was weighted in the office and it was found to be 4 kgs. by weight. He further deposed that samples were taken from all the 8 packets and on the (Sic) ? it was sent for chemical examination. He also deposed that the remaining Charas was kept in Raxaul godown of the department. At para-32 of his evidence he deposed that under the orders of Superintendent of Customs he has kept the seized Charas in Raxaul Malkhana of the department. Thus, the complainant fully supports the prosecution case about the appellant having been seen in suspicious condition and when on interrogation he gave evasive reply he was taken to Customs office where search was conducted in presence of Superintendent of Customs and 4 kgs. Thus, the complainant fully supports the prosecution case about the appellant having been seen in suspicious condition and when on interrogation he gave evasive reply he was taken to Customs office where search was conducted in presence of Superintendent of Customs and 4 kgs. of Charas from the Anklets on the legs of the appellant was recovered and the sample of the Charas was sent for chemical examination. Vide chemical examination report (Ext.5) it was found to be Charas. 5. P.W.3 Jagdish Prasad is the Superintendent of Customs. Raxual, Land Customs Station. He deposed that on 10.11.98 (it appears to be mistake for 11.10.98) Prakash Sahay (P.W.4), the Inspector. Customs, Binod Kumar (P.W.2) and seven constables along with driver Rana Singh (P.W.6) had gone out on a tour and that they had caught one man named Naimuddin (appellant) and brought him to the Customs Station. He further deposed that in his presence the appellant was searched and as a result of search 8 packets half kg each containing Charas was recovered from the Anklet on both less of the appellant. He also deposed that in his presence the appellant was interrogated and his interrogation statement was recorded in the writing of Manoj Kumar because the appellant was not a literate man. He also identified his signature on each of the four pages of the interrogation statement and the signature has been marked Ext.1. 1/1.1/2 and 1/3. The whole interrogation statement has been marked as Ext.2. At para-14 of his cross- examination he deposed that he was Superintendent of Customs since 1972 and the post of Customs Superintendent is a Gazetted post and thus P.W.3 is Gazetted officer. At para-12 of his cross-examination he gave specific date 11.10.98 saving that on that date he had seen the appellant in his office. At para- 14 of his evidence he again deposed that the search had been made in his presence though he admitted that he had not put any signature on the seizure list. He also deposed at para- 16 that on 11.10.98 the material exhibits had been sealed in his presence. At para-18 of his evidence he rejected the defence suggestion that interrogation statement of the appellant was taken under duress and there is no other material on record to show that the statement was taken under duress. He also deposed at para- 16 that on 11.10.98 the material exhibits had been sealed in his presence. At para-18 of his evidence he rejected the defence suggestion that interrogation statement of the appellant was taken under duress and there is no other material on record to show that the statement was taken under duress. Thus the P.W.3 supports the prosecution case through his evidence that the search and seizure of Charas from the appellant was made in his presence and that the material exhibit was also sealed in his presence. 6. The P.W.1. a constable in the Customs Department who was also a member of the raiding party, deposed that while the party reached near Koiria Tola, a 407 bus was found coming from opposite side and that inspector Binod Kumar stopped the bus and on suspicion he brought a man down from the bus and on search a Charas contained in 8 Pkts. was found tied on the legs of that man. He also deposed that the seizure had been made in his (Sic- the 7) presence of independent witnesses and that person had been brought to Customs office. On the basis of the evidence of P.W.1 the learned counsel for the appellant argued that according to this witness, the appellant had been brought down from the bus and was searched by the Inspector Binod Kumar Singh (P.W.2). But it appears that this witness has given his evidence in a casual manner stating in the way how the appellant was brought and searched but this witness (RW.1) also deposed that the appellant had been taken to the Customs office. This witness says about the search of the appellant being made by the inspector, Binod Kumar (P.W.2). But the P.W.2 himself has not deposed on that line and he has adduced his evidence in consonance with the case of prosecution. 7. The P.W. 2 Binod Kumar deposed that on 11.10.98 while he was posted as Customs Inspector at Raxaul Customs Station, he received a secret information that narcotics material was to be brought at Koiria Tola from Nepal. On this information, the team was constituted and the team started keeping eve over the movements at chowk of Koiria Tola and in course of that one person was noticed feeling difficulties in his movement. On this information, the team was constituted and the team started keeping eve over the movements at chowk of Koiria Tola and in course of that one person was noticed feeling difficulties in his movement. Seeing this, that person was interrogated whereupon he stated that he was going to catch a bus and that on putting hands over his legs it was felt that something was tied there. On further interrogation that person (appellant) became nervous and he confessed that he was carrying Charas. This witness identified the appellant in dock during trial. He further deposed that the appellant was brought to Customs office and there in the presence of two independent witnesses and the inspector 8 packets of Charas were recovered from the two anklets on the legs of the appellant. The recovered Charas was weighed and it was found 4 kgs. He also deposed that inspector Prakash Kumar Sahay (complainant) prepared the seizure list. At para-17 of his evidence he deposed that after apprehension the appellant was not taken to any Magistrate. At para-21, he further deposed that since he was not competent to make body search he produced the appellant before the Superintendent of Customs. Thus, this witness says about production of the appellant before the Superintendent of Customs for the purpose of search.The Superintendent of Customs (P.W.3) has deposed that the appellant was produced before him and that a search was conducted in his presence and seizure of 4 kgs. of Charas was made from appellants possession. 8. P.W.5 Bhola Nath. a sepoy in the Customs Department who was a member of the raiding party deposed that in course of checking one person was apprehended and that on search Charas was recovered from his legs. This witness identified the appellant in dock during trial. At para-2 of his cross-examination he deposed that the appellant was not told that the search would be conducted before S.D.O. or any Magistrate but he (appellant) was taken to Customs Office where search and seizure was made in presence of two independent witnesses. 9. P.W.6 Rana Singh, a driver in the Department of Customs deposed that on 11.10.98 he had driven the vehicle of the checking party and that on that day the appellant was apprehended at Koiria Tola and he had been brought to Customs office. 10. 9. P.W.6 Rana Singh, a driver in the Department of Customs deposed that on 11.10.98 he had driven the vehicle of the checking party and that on that day the appellant was apprehended at Koiria Tola and he had been brought to Customs office. 10. P.W.7 Amar Singh, a sepoy in the Customs Department, has simply deposed that under the supervision of Jagdish Prasad. Superintendent, he alongwith others had gone out for checking at Koiria Tola. 11. P.W.8 Birendra Prasad, who is also a sepoy in the Customs Department deposed that on 11.10.98 while he was at Koiria Tola. Bus Stand, inspector Saheb had caught one person and he has been brought to Customs office. This witness has identified the appellant as the person who had been caught that day. 12. P.W.9 Ram Lakhan Rai, a Customs Inspector, has produced the attested photo copies of destruction report with regard to the destruction of the seized Charas in the case. The destruction report at item no.11 at page-27 in column II of the destruction list shows destruction of 4 kgs. of Charas as seized in case no. 80/RXL98/11.10.98 on 10.3.99. The attested photo copies of the destruction list bear the signature of Assistant Commissioner, Customs. Superintendent of Excise, Inspector of Godown. I/C LCS & Executive Magistrate, Motihari and other officials. It was pointed out by the learned A.P.P. that the seized Charas was destroyed under the order of Magistrate and he also signed on the destruction report. 13. During hearing the learned counsel for the appellant submitted that in this case, the mandatory provisions under Sec. 50 of the NDPS Act (1985) (hereinafter referred as the Act) has not been complied inasmuch as, the appellant was not informed about his legal right that he can require his search to be made before the nearest Magistrate or a Gazetted officer of the department mentioned in Section 42. In this context, the learned A.P.P. referred the evidence of the complainant (P. W. 4 ) and the Superintendent of Customs (P.W.3) and also the evidence of P.Ws. 2.5 and 8 that after apprehension, the appellant was brought before the Superintendent of Customs and in his presence a search was conducted.The P.W.3. the Superintendent of Customs has also deposed in his evidence at para~14 that the post of Superintendent of Customs is post of Gazetted Officer. 2.5 and 8 that after apprehension, the appellant was brought before the Superintendent of Customs and in his presence a search was conducted.The P.W.3. the Superintendent of Customs has also deposed in his evidence at para~14 that the post of Superintendent of Customs is post of Gazetted Officer. Thus, the P.W.4 is a Gazetted Officer before whom the search and seizures was taken. No doubt there is no categorical evidence that the appellant was informed about his right to be searched before a Magistrate or a Gazetted Officer but the complainant and other members of the raiding party themselves took the appellant before the Superintendent of Customs, a Gazetted Officer and search and recovery was made in his presence. And thus, there has been substantial compliance of the mandatory provision of Sec. 50 of the Act and no adverse inference is required to be taken against the prosecution on such count in this case. 14. The learned counsel further argued that the search and seizure is said to have been made in presence of two independent witnesses also and they have not been examined by the prosecution. No doubt the two independent witnesses in whose presence the search and seizure is said to have been made, have not been examined by the prosecution but the Superintendent of Custom who was present at the time of search has come to depose as P.W.3 and he has fully supported factum of search and seizure in his presence. Sec. 50 of the Act does not itself conceive the search to be made in presence of the two independent witnesses only but it requires that the person arrested shall be informed about his legal right to be searched in presence of the nearest Magistrate or Gazetted Officer of the Department mentioned in Sec. 42. However, under clause (5) of Sec. 50 it has been provided that when it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of person to be searched parting with possession of any narcotic drugs or phychotropic substances, the person can be searched under the provision of Sec.100 of the Code of Criminal Procedure, 1973 i.e. search and seizure to be made before the two independent witnesses. Thus, under Sec. 50 of the Act the requirement of search being made before two independent witnesses arises only in the case when the search before a Magistrate or Gazetted Officer is not possible within the time. In the instant case the search and seizure has already been made in presence of Gazetted Officer i.e. Superintendent of Customs (P.W.3) and thus the witnessing of the search by two independent witnesses was a surpluses adopted by the raiding party, hence, in given facts and circumstances of the case, the non-examination of the two independent witnesses does not go to adversely affect the case of prosecution in anv manner. 15. It was also argued that Manoj Kumar writer of the confessional statement of the appellant has not been examined. No doubt Manoj Kumar was not examined but the RWs. 2. 3 and 4 have said in their evidence that the appellant had confessed before them that he was carrying Charas in his possession. The P.W.3 has also prepared the interrogation report (Ext.2) whereunder specific intensive questions and answers go to show that the appellant confessed about possession of the recovered Charas. The P.W.3 who had signed each of the four pages of the interrogation report has deposed that the appellant had confessed before him. Thus, in view of the confessional statement (Ext.2) the non-examination of the writer of the confessional statement or the interrogation report does not adversely affect the case of prosecution. 16. Lastly the learned counsel for the appellant argued that the mandatory provision of Sec. 55 of the Act has not been complied with inasmuch as the recovered article was not produced before officer-in-charge of the concerned police station for its safe custody. It was submitted that the seizing officials i.e. Inspector of Customs seized Charas and kept it in the Malkhana of the Customs Department and thus mandatory provisions of Sec. 50 of the Act has not been complied with. In support of his submission the learned counsel cited a Judgment of Single Bench of this Court in the case of Dayanand Bharti vs. The Union of India, reported in 2002(1) PLJR.75 wherein it was held that when the seized ganja was kept in the godown of the Custom Department and not under custody of the local police under whose jurisdiction the seizure was made, there was a violation of mandatory provision of sec. 55. 55. But while deciding so, the learned Single Judge relied on the decision in the case of State of Puniab vs. Balbir Singh, reported in (1994)3 SCC Supreme Court cases, page-299. 17. In this case the Supreme Court has held that provision of Sections 52 and 57 are by themselves not mandatory. These provisions contained certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore, it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. If there is non-compliance or if there are lapses like delay etc. then same has to be examined to see whether any prejudice has been caused to the accused. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution. 18. Thus the Hon ble Supreme Court is of the view that the provisions under Sec. 52 and 57 are directory and not the mandatory and that non compliance of it will not invalidate the prosecution unless it is shown that the noncompliance has caused prejudice to the defence. The learned A.P.R has argued that the Customs Department has its well established godown with lockers for keeping such articles in its safe custody. The learned A.RR cited the notification no. SO 822 (E) dated 14.11.85 (Annexure-i) of the department whereunder officers, above the rank of Sub-Inspector in the Excise and Custom Department have been vested with powers as specified in Sec. 42 of the Act. The learned A.RR also referred to notification no. The learned A.RR cited the notification no. SO 822 (E) dated 14.11.85 (Annexure-i) of the department whereunder officers, above the rank of Sub-Inspector in the Excise and Custom Department have been vested with powers as specified in Sec. 42 of the Act. The learned A.RR also referred to notification no. SO 823(E) dated 14.11.85 (Annexure-ii) of the department wherein officers of or above the rank of Inspector Customs Department have been vested with powers of officer-in-charge of a police station as envisaged under Sec. 53 of the Act. On the basis of these two notifications, the learned A.RR argued that the complainant who was a Custom Inspector had all powers of an officer-in-charge of a police station. In view of the authorisation under the notification vide Annexure (iii) and that since he had all powers of an officer-in-charge of the police station, the complainant was quite competent to take charge of the seized articles which according to his evidence he had sealed after seizure and kept in the Malkhana of the Custom Department. Learned A.P.P. further referred to standing order no.2/88 of the Narcotics Control Bureau. New Delhi and points out that under this standing order the Central Government and State Government were asked and authorised to provide for storing the narcotics substance under safe custody provided with double locking system. The learned A.P.P. submitted that the Customs Department being agency of the Central Government has its own godown with every facility of lockers for keeping safe the narcotics substance. It was also submitted that the seized Charas was kept in the godown of Custom Department and it was also lawfully disposed of by destroying the same under the presence and signature of the Magistrate and the senior officials of the Customs Department, Narcotic Control Bureau, C.B.I, vide attested photocopies of the destruction report. Thus, in the circumstances. I do not find anv scope for any adverse inference and the non compliance of the provision of Sec. 57 of the Act has been well explained. And thus, non-compliance of the provision does not cause any prejudice to the defence. Therefore, no adverse inference against the case of prosecution is required on such counts. 19. Thus, I find that prosecution has been able to prove the charge beyond the shadows of reasonable doubt. So far the quantum of sentence is concerned, in view of the quantity of the Charas recovered. Therefore, no adverse inference against the case of prosecution is required on such counts. 19. Thus, I find that prosecution has been able to prove the charge beyond the shadows of reasonable doubt. So far the quantum of sentence is concerned, in view of the quantity of the Charas recovered. I find that the sentence is also proper and justified. 20. In such view of the matters. I find no reason to interfere with the order of conviction and sentence as passed by the trial Court. Therefore, the judgment is upheld. In the result the appeal is dismissed.