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2008 DIGILAW 561 (CAL)

Salim Akthar v. STATE OF WEST BENGAL

2008-05-16

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
Judgment :- (1.) THIS appeal is directed against a judgment dated 21st june, 2005 by which the accused Mr. Salim Akthar and Debashish Dutta were convicted under Section 21/29 of the NDPS Act and an order dated 22nd June, 2005 by which the convicts were sentenced to suffer rigorous imprisonment for 10 years as also to pay a fine of Rs. 1,00,000/- each, in default to suffer further simple imprisonment for a period of 2 years for the offence punishable under Section 21 of the NDPS Act. No separate sentence under Section 29 of NDPS Act was awarded by the learned Trial Court. The convict Salim Akthar has come up in appeal. (2.) THE facts and circumstances briefly stated are that on 19th July, 1999 a batch of officers of the Narcotic Control Bureau including its the then Superintendent (P.W. 7), who, it is claimed, was a gazetted officer, intercepted the accused persons at Central Restaurant at 213a, B. B. Ganguly Street, Calcutta 12, at 16. 00 hrs. Upon search being conducted 570 grams of heroine was recovered from the possession of the accused debashish. No incriminating material was however recovered from the accused Salim. Both of them, it appears from the arrest memos marked exts. 10 and 11 respectively, were arrested on 19th July, 1999 at 23.00 hrs. Ext. 11 however goes to show that 570 grams (gross) of brown coloured powder substance believed to be Heroine was recovered and seized from the appellant Md. Salim Akhtar which admittedly is an untrue statement. The search cum seizure list marked Ext. 7 goes to show that the search started at 16. 00 hrs on 19th July, 1999 and ended at 18.00 hrs. Notices under Section 67 of the NDPS Act, separately issued to the accused persons, have been marked Exts. 8 and 9 respectively. Options under section 50 of the NDPS Act separately given to the accused persons have been marked Exts. 3 and 4. Consent in writing given by the accused persons, have been marked exts. 5 and 6 signifying that they were agreeable to be searched in the presence of a gazetted officer. A confessional statement captioned "voluntary statement" of the appellant, it appears, was recorded on 19th July 1999 by Shri Arup Kr. Pal (P. W. 4). 3 and 4. Consent in writing given by the accused persons, have been marked exts. 5 and 6 signifying that they were agreeable to be searched in the presence of a gazetted officer. A confessional statement captioned "voluntary statement" of the appellant, it appears, was recorded on 19th July 1999 by Shri Arup Kr. Pal (P. W. 4). Similarly a confessional statement captioned "voluntary statement" of the accused Debashish Dutta was recorded on 19th July, 1999 by S. Mitra (P. W. 6). A voluntary statement also appears to have been made by Shri Shankar Mallick (P. W. 9), the owner of the Central Restaurant on 19th July, 1999 which has been marked ext. 19. The P. W. 9 turned hostile and deposed that the statement was written by him as dictated by them meaning thereby the officers of NCB. Upon further cross-examination on behalf of prosecution he deposed that they put questions and he wrote answers. The Ext. 19 is however in a narrative form. A complaint relating to offence under Sections 21 and 29 of the NDPS Act, 1985 was filed in the Court of the learned Spl.-Judge, NDPS act, City Sessions Court, Calcutta on 31st August, 1999, which does not contain any allegation against the appellant Salim, has been marked ext. 1. (3.) THE learned Trial Judge framed the following questions for determination :-"1) Whether the seized brown powder and foreign currency notes were recovered from the possession of the accused Debashish Dutta on 19. 7. 99 in Central Restaurant at 213a, B. B. Ganguly Street, calcutta-12 ? 2) Whether the seized brown powder allegedly recovered from the possession of the accused Debashish Dutta was heroine ? 3) Whether the accused persons entered into conspiracy to deal with the brown powder said to be heroin ? 4) Whether the accused persons are guilty of the offences u/s 21/29 of the N. D. P. S. Act, 1985 ?" (4.) THE first and the second questions obviously do not relate to the appellant Salim Akthar. The questions No. 3 and 4 were answered by the learned Trial Judge in the affirmative on the basis of the following reasoning:- "point No. 3 :-The unshaken evidence of P. Ws. The questions No. 3 and 4 were answered by the learned Trial Judge in the affirmative on the basis of the following reasoning:- "point No. 3 :-The unshaken evidence of P. Ws. 3, 5 and 7 disclosed that both the accused persons were intercepted by them in Central Restaurant at 213a, B. B. Ganguly Street while they were talking with each other in the restaurant and on search, a polythene packet of brown powder in an off-white envelope in another polythene bag and 8 foreign currencies were recovered from the possession of the accused debashish Dutta in the afternoon on 19. 7. 99 and that while the accused persons were taken to the office of N. C. B. , Calcutta after serving notices upon them u/s 67 of the N. D. P. S. Act, they gave voluntary statements admitting their involvement in dealing with the heroine recovered from the possession of the accused Debashish dutta. The voluntary statements of the accused persons proved by p. Ws. 4 and 6 marked Exts. 15 and 17, disclosed that the accused admitted their involvement in dealing with seized heroine as agents of one Gopal Das of Prem Chand Baral Street, Calcutta, who was said to have lured the accused persons in such business for earning money to cope up with their poverty and that the said Gopal Das supplied the seized heroine to them to deliver them to one Kartick at the Central Restaurant at 213a, B. B. Ganguly Street, Calcutta on 19. 7. 99, who was scheduled to come there to receive the heroine. Since the voluntary statements made to the NCB officers are admissible in evidence, the statements of the accused persons to that effect clearly indicated that the accused persons entered into criminal conspiracy and abetted each other to procure, to possess and to sell the heroine seized from the possession of the accused debashish Dutta at Central Restaurant at 213 A, B. B. Ganguly Street, calcutta on 19. 7. 99 which is punishable u/s 29 of the N. D. P. S. Act. Point No. 4 :-In view of the findings regarding point Nos. 7. 99 which is punishable u/s 29 of the N. D. P. S. Act. Point No. 4 :-In view of the findings regarding point Nos. 1, 2 and 3 it must be held that the accused persons entered into a conspiracy to procure, to possess and to sell heroine (Diacetyle Morphine) which is punishable u/s 21 of the N. D. P. S. Act, read with Section 29 of the N. D. P. S. Act. As such, the accused persons are liable to be convicted u/s 21 of the n. D. P. S. Act, read with Section 29 of the N. D. P. S. Act. Accordingly, the accused persons are convicted u/s 21/29 of the N. D. P. S. Act. The accused persons be produced on 22. 6. 2005 for hearing on the point of sentence. " (5.) IT would thus appear that the sole foundation for conviction of the appellant Salim is the voluntary statement i. e. ext. 15. The so-called voluntary statement was recorded by Arup Kr. Pal (P. W. 4). The entire evidence in-chief of the P. W. 4 Arup Kr. Pal is as follows :- "since 25. 4. 96 I am an Intelligence Officer, Narcotics Control bureau, Eastern Zonal Unit, Calcutta. On 19. 7. 99 I was a member of the raiding party and we went bowbazar Street and College Street crossing at Central Restaurant. I first entered into the said restaurant and thereafter was standing in front of the gate of the said restaurant. On that date I also recorded the voluntary statement of Md. Salim Akthar. This is the statement of md. Salim Akthar recorded by me in four sheets. The same was read over and explained to him and I then took his signatures on all the pages. The said statement was recorded by me and I also signed in the statement in presence of N. C. Patra, Superintendent. He also signed on all the pages. This is the said statement (Ext. 15) containing signatures of Md. Salim Akthar (Ext. 15/1 collectively). These are the signatures of N. C. Patra, Superintendent, on all the pages (Ext. 15/2 collectively). Md. Salim Akthar is present in Court (identified)" (6.) EVIDENTLY the P. W. 4 did not depose that the accused Salim confessed, voluntarily or otherwise, his involvement in the business of heroine. His evidence is that he recorded the voluntary statement of the accused Salim. 15/2 collectively). Md. Salim Akthar is present in Court (identified)" (6.) EVIDENTLY the P. W. 4 did not depose that the accused Salim confessed, voluntarily or otherwise, his involvement in the business of heroine. His evidence is that he recorded the voluntary statement of the accused Salim. The P. W. 4 in his cross-examination deposed as follows :-"no time of starting or completing of recording voluntary statement is mentioned in the statement. I do not know if the accused was kept in segregation before recording of the statement. I can not say the exact time when accused came to our NCB office. It is not mentioned in such statement whether such statement was recorded after recording of the statement of the other accused. The statements of both the accused persons were recorded at a time in separate rooms. No independent or impartial NCB officer was present at the time of such recording. I did not take back the notice u/s. 67 from the accused. I can not say if such notice was taken back by any person of our department. (On perusal of 67 notice) there is no mentioned of place of service of notice in it. Time is not mentioned to the notice u/s 67. There is no paper to show that I was deputed to record voluntary statement of the accused person. Not a fact that the alleged voluntary statement is not the statement of the accused but of our statement. Not a fact that the signature of the accused was obtained on such papers by coercion and pressure. " (7.) WE have read and re-read the statement allegedly made by the appellant Salim Akthar. The so-called voluntary statement contains an account of the entire proceedings allegedly held on 19th July, 1999 including an allegation that the statement was made in pursuance of a notice under section 67 of the NDPS Act; an allegation that the officers of the Narcotic department treated them well; they were given refreshment and time to take rest; they did neither assault nor did they intimidate the accused; the accused did not know any language other than Urdu and therefore he requested the officers to record the statement on his behalf and they had obliged him. (8.) WE already have noted the case of the accused put to the P. W. 4 as regards the so-called voluntary statement which is that it is not a statement of the appellant Salim but the statement of the officer of NCB. Law is well settled that the "defence has only to probablise the defence taken". There must be material on record to support the plea and probablise its case (See Nasir Sikander Shaikh v. Maharashtra reported in (2005) 10 scc 585 ). Let us now tabulate the reasons which go to probablise the defence plea. a) The appellant had already been detained by of the officials of ncb, from 16. 00 hours onwards. b) No incriminating material had been recovered or seized from his possession. Still then he was arrested. In order to justify his arrest it was untruly recorded in the arrest memo, Ext. 11, that 570 grams of brown coloured powder believed to be Heroine was recovered and seized from him. c) He had no occasion to make any confessional statement. d) He at the highest was in the position of a witness in whose presence incriminating material was recovered from the co-accused Debashish Dutta. e) The circumstances which led the appellant to make the confessional statement have not been disclosed. f) Even the P. W. 4 who recorded this statement did not depose that the accused made the statement voluntarily. g) The only other person in whose presence the so-called voluntary statement was deposed, by the P. W. 4, to have been recorded is the Superintendent (P.W.7) Mr. N. C. Patra. The said Shri Patra did not in his evidence depose as regards any of the points indicated hereinabove. h) The prosecution has not disclosed that it had any specific information as regards the complicity of the appellant. The P. W. 7 in his examination in chief deposed that on the basis of specific information they had gone to the Central Restaurant. But no gist of any such information, he admitted, in cross-examination had been disclosed in Court. (9.) THE prosecution is obliged to prove that the confessional statement was made voluntarily. There is no evidence whatsoever on the record to prove the aforesaid fact. The learned Trial Judge has relied on the evidence of the P. W. 3. But no gist of any such information, he admitted, in cross-examination had been disclosed in Court. (9.) THE prosecution is obliged to prove that the confessional statement was made voluntarily. There is no evidence whatsoever on the record to prove the aforesaid fact. The learned Trial Judge has relied on the evidence of the P. W. 3. From the evidence of the P. W. 3 it does not appear that the appellant made the confessional statement voluntarily. The learned Trial Judge has relied on the evidence of the P. W. 5. From the evidence of the P. W. 5 it does not appear that the appellant made the confessional statement voluntarily. The learned Trial Judge has also relied on the evidence of the P. W. 7 which we already have dealt with hereinabove and indicated that there is no such thing. P. W. 6 recorded the confessional statement of the co-accused Debashish. He naturally did not depose anything as regards the confessional statement of the appellant Salim. (10.) THE learned Trial Judge as regards the admissibility of the confessional statement opined as follows :- "it may be noted that though it has been suggested on behalf of the defence that the accused persons did not make any voluntary statements regarding the alleged search and seizure of brown powder etc. from the possession of the accused Debashish Dutta in Central restaurant at 213a, B. B. Ganguly Street, Calcutta on 19. 7. 99 and that their signatures were procured on such so-called voluntary statements fabricated by the NCB officers under coercion and duress, there was no complaint by the accused persons to that effect before the Magistrate when they were produced before the Magistrate in the case on the allegation of recovery of brown powder suspected to be heroine from their possession. As such, in view of the principle laid down by the Honble Supreme Court in the decision reported in 99 calcutta Cr LR 452 (Supreme Court), the confessional statements made by the accused persons marked Exts. 15 and 17 are quite admissible in evidence and can be relied upon; and that the allegations that such confessional statements were fabricated and signatures of the accused persons were procured on such fabricated statements under threat and coercion by the NCB officers, at the time of cross-examination of the witnesses and/or at the time of examinations of the accused persons u/s 313, Cr. P. C. is not tenable in law. " (11.) THE judgment relied upon by the learned Trial Court is in the case of Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras also reported in AIR 1999 SC 2355 :1999 C Cr LR (SC) 451. In paragraph 7 of the judgment Their Lordships held as follows :- "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 Section 313, Cr. P. C, it was given by him under threat and pressure. P. W. I had taken the appellant to her office and the confessional statement came to be recorded at about 8 P. M. , no doubt, while the appellant 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 Section 313, cr. P. C. It was only during the trial that a suggestion was made to p. W. 1 and subsequently when the appellant gave a statement under section 313, Cr. P. C. he stated that the confessional statement was given by him under threat and pressure. Even while giving his statement under Section 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 was voluntarily made and thought it safe to rely upon the same it cannot be said that it committed any error in doing so. It was a vague statement. If in such circumstances the trial Court held that the confessional 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. " (12.) THE learned Trial Judge missed the point of substance that before a confessional statement can be taken into account, according to the views expressed in the aforesaid judgment, the Court must be satisfied that the same was made voluntarily and that it is safe to rely upon the same. In the case before Their Lordships such a finding was there. In the case before us there is no evidence to show that the so-called confessional statement was either voluntarily made or that the same is reliable. In the case before the apex Court there was evidence to show that 150 grams of heroine was recovered from the possession of the appellant before the Apex Court whereas before us it is not even the case of the prosecution that any incriminating material was recovered from the appellant. The defence case noticed above was duly suggested to the P. W. 4 so that the prosecution had notice of the case of the defence yet no step to establish the admissibility of the so-called voluntary statement was taken. The learned Trial Judge grossly erred in convicting the appellant on the basis of this confessional statement. Before a confessional statement can be acted upon the Court must be satisfied that the same was made voluntarily and the same was also true. In the case before us there is no evidence on the basis of which one can come to the conclusion that it was voluntarily made or that it was factually true. Reference in this regard may be made to the judgment in the case of Bharat v. State of U. P. reported in (1971)3 SCC 950 . Their Lordships in paragraph 7 opined as follows :-"the law as to confessions is perhaps too widely stated. Confessions can be acted upon if the Court is satisfied that they are voluntary and that they are true. Their Lordships in paragraph 7 opined as follows :-"the law as to confessions is perhaps too widely stated. Confessions can be acted upon if the Court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A Court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the Court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the Court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the Courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Gounden v. The State of Madras." (We have underlined the sentence to highlight the same.) (13.) TAKING a clue from the aforesaid judgment it can at once be pointed out that there is no evidence whatsoever to indicate any reason for making the confession. This was laid down by this Court in an earlier case reported in Subramania Gounden v. The State of Madras." (We have underlined the sentence to highlight the same.) (13.) TAKING a clue from the aforesaid judgment it can at once be pointed out that there is no evidence whatsoever to indicate any reason for making the confession. We as a matter of fact have tabulated above the facts and circumstances which go to probablise the case of the defence suggested to the P. W. 4 that it is not a statement of the accused Salim but that of the officers of NCB which the appellant was coerced by the officers of NCB to sign. The appellant it appears to us to have been coerced to sign the statement by threat proceeding from the officers of NCB, who were persons in authority within the meaning of Section 24 of the Evidence Act, which led the appellant to suppose that by signing the statement prepared by the P. W. 4 he would avoid evil consequences likely to follow by his refusal to sign it regard being had to the fact that the officers of NCB had already fabricated false record, Ext. 11, to show that 570 grams of brown coloured substance believed to be Heroine was recovered from him. This explains the reason why in the so-called voluntary statement there is a prayer for mercy. The officers of NCB will be covered within the meaning of expression "persons in authority", used in Section 24 of the Evidence Act. Reference may in this regard be made to the judgment in the case of k. T. M. S. Mohd. and Am. v. Union of India, AIR 1992 SC 1831 . "this Court in Vallabndas Liladhar v. Asstt. Collector of Customs, air 1965 SC 481 : (1965)3 SCR 854 , while dealing with the question of admissibility of the statements made before the Customs Officers held, "section 24 would however apply, for customs authorities must be taken to be persons in authority and the statements would be inadmissible in a criminal trial if it is proved that they were caused by inducement, threat or promise. " In a subsequent decision P. Rustomji v. State of Maharashtra, AIR 1971 SC 1087 : 1971 SCR (Supp) 35, wherein this Court while answering a question as to whether S. 24 of the Evidence Act is or is not a bar to admissibility in evidence of a statement made by a person to Customs Officers in an enquiry under section 108 of the Customs Act held, "in order to attract the bar, it has to be such an inducement, threat or promise which should lead the accused to suppose that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him. " we think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of Enforcement under the relevant provisions of the respective acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc, to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in, passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. Reference may be made to a decision of the full Bench of the Madras High Court in Roshan Beevi v. Joint secretary to the Govt. of Tamil Nadu, Public Deptt. 1983 Mad LW (Cr) 289 : 1984 (15) ELT 289 : (1984 Cr LJ 134) to which one of us (S. Ratnavel Pandian, J.) was a party. " (14.) REFERENCE may also be made to the judgment in the case of sasi and Anr. v. State of Kerala reported in (2000)10 SCC 360 . In paragraph 6 Their Lordships opined as follows :- "both the said arguments are fallacious. There is no legal requirement that a confession should be made to an authorised officer. Any person can give evidence in a Court regarding a confession made by an accused to him. If such confession was made to a Magistrate the law requires the same to be recorded in the manner prescribed by law. If a confession is made to any other person the Court has to consider whether the evidence of that person can be believed which depends upon the credibility of the witness giving such evidence in Court. " (15.) IN the present case the confessional statement was allegedly made before the P.W. 4. P. W. 4 did not utter a word as regards any confession. He deposed that he recorded the voluntary statement of the accused Salim. " (15.) IN the present case the confessional statement was allegedly made before the P.W. 4. P. W. 4 did not utter a word as regards any confession. He deposed that he recorded the voluntary statement of the accused Salim. The internal evidence furnished by the so-called voluntary statement itself, its wealth of incidental details, which we have indicated hereinabove, doubtlessly designed for that independent corroboration which the law requires, which a person giving an unprompted account of what took place would hardly think it worthwhile to mention indicates that the same was drafted by the P.W. 4 and thereafter produced to the appellant salim for signature which he was coerced to subscribe. We are convinced that no confessional statement was made by the accused Salim. (16.) THE officers of NCB abused their statutory power in order to falsely implicate the appellant. In order to succeed in their wrongful objective they took the following steps :a) The appellant was arrested without any valid reason. b) In order to justify the wrongful arrest the officers of NCB untruly recorded in the arrest memo, Ext. 11, that 570 grams (gross) brown coloured powder substance believed to be heroine was recovered and seized from the appellant Md. Salim Akthar. c) In order to secure conviction of the appellant a false statement was recorded by the P. W. 4 which is Ext.15. d) The appellant was made to sign the statement Ext. 15 by coercion and pressure. (17.) MR. Bhattacharaya, learned Advocated appearing in support of the appeal submitted that a mere acquittal shall not serve the purpose of justice regard being had to the fact that the appellant a completely innocent person has been languishing in jail for more than 9 years. The respondents, he contended, should be directed to give at least a token compensation for respectful rehabilitation of the accused in the society. (18.) MR. M. Singh, learned Advocate appearing for the NCB submitted that a direction for payment of compensation cannot be issued while disposing of the appeal. He however prayed for time to consider the matter. The matter was adjourned, (19.) WHEN the matter was again taken up for hearing on the adjourned day he reiterated his submission and added that the appellant should be relegated to the traditional remedy for the purpose of recovery of compensation. He however prayed for time to consider the matter. The matter was adjourned, (19.) WHEN the matter was again taken up for hearing on the adjourned day he reiterated his submission and added that the appellant should be relegated to the traditional remedy for the purpose of recovery of compensation. He cited a judgment in the case of Hussain v. State of Kerala reported in (2000)8 SCC 139 . He drew our attention to paragraphs 12 and 13 which read as follows :-"it is unfortunate that the aforesaid points have not been put forward before the trial Court or the High Court. We feel that the conviction and sentence imposed on this appellant were without the sanction of law. The appellant is unlawfully deprived of his personal liberty for such a long period of 5 years on account of overlooking the aforesaid facts and the legal position. We, therefore, allow this appeal and quash the judgment of the high Court as well as the Sessions Court. We acquit the appellant and direct him to be set at liberty forthwith. In this case, we are not considering the question of awarding compensation to the appellant but he is free to resort to his remedies under law for that purpose. " (20.) IT may be pointed out that in that case bona fide of the accusation was not brought into question nor was any specific prayer for compensation, token or otherwise as a measure of respectable rehabilitation in the society, was made. Their Lordships therefore did not have any occasion to consider that question. (21.) MR. Singh then relied upon a judgment in the case of Ch. Jawahar singh vs. State of Haryana and Ors. reported in 1994 Supp (1) SCC 152 for the proposition that an officer discharging official duty cannot be directed to pay costs on the ground of delay in discharging his duty "without holding that he was biased against the writ petitioners or that his conduct was mala fide". This judgment, in our view, goes against the respondent for we have held that the officers of NCB abused their statutory power. (22.) LASTLY it was contended by Mr. Singh that Section 386 of the cr. P. C. does not contemplate grant of compensation which, if granted, would be an order without jurisdiction. Mr. This judgment, in our view, goes against the respondent for we have held that the officers of NCB abused their statutory power. (22.) LASTLY it was contended by Mr. Singh that Section 386 of the cr. P. C. does not contemplate grant of compensation which, if granted, would be an order without jurisdiction. Mr. Bhattacharjee contended in reply that in order to secure the ends of justice the prayer should be considered. (23.) WE are unable to accept the submission of Mr. Singh that an order granting compensation shall be an act without jurisdiction. (24.) SECTION 357, Cr. P. C. provides for grant of compensation to the victim in addition to inflicting punishment upon the accused. In the case of sarwan Singh v. State of Punjab reported in (1978)4 SCC 111 Their lordships held as follows :- "the law which enables the Court to direct compensation to be paid the dependants is founded in Section 357 of the Code of Criminal procedure, 1973 (Act 2 of 1974), The corresponding provision in the 1898 Code was Section 545. Section 545 of the Code of Criminal procedure, 1898 (Act 5 of 1898) was amended by Act 18 of 1923 and by Act 26 of 1955. The amendment which is relevant for the purpose of our discussion is 545 (1) (bb) which, for the first time inserted by act 26 of 1955. By this amendment the Court is enabled to direct the accused, who caused the death of another person, to pay compensation to the persons who are, under the Fatal Accidents Act, entitled to recover damages from the persons sentenced, for the loss resulting to them from such death. In introducing the amendment, the Joint Select Committee stated "when death has been caused to a person, it is but proper that his heirs and dependants should be compensated, in suitable cases, for the loss resulting to them from such death, by the person who was responsible for it. In introducing the amendment, the Joint Select Committee stated "when death has been caused to a person, it is but proper that his heirs and dependants should be compensated, in suitable cases, for the loss resulting to them from such death, by the person who was responsible for it. The committee proceeded to state that though Section 545 of the Code as amended in 1923 was intended to cover such cases, the intention was not however very clearly brought out and therefore in order to focus the attention of the Courts on this aspect of the question, the Committee have amended Section 545 and it has been made clear that a fine may form a part of any sentence including a sentence of death and it has also been provided that the persons who are entitled under the fatal Accidents Act, 1855, to recover damages from the person sentenced may be compensated out of the fine imposed. It also expressed its full agreement with the suggestion that at the time of awarding judgment in a case where death has resulted from homicide, the Court should award compensation to the heirs of the deceased. The Committee felt that this will result in settling the claim once for all by doing away with the need for a further claim in a civil Court, and avoid needless worry and expense to both sides. The committee further agreed that in cases where the death is the result of negligence of the offender, appropriate compensation should be awarded to the heirs. By the introduction of clause (bb) to Section 545 (1), the intention of the legislature was made clear that, in suitable cases, the heirs and dependants should be compensated for the loss that resulted to them from the death, from a person who was responsible for it. The view was also expressed that the Court should award compensation to the heir of the deceased so that their claims would he settled finally. The object is sought to be given effect to by Section 357 of the new code (Act 2 of 1974). The view was also expressed that the Court should award compensation to the heir of the deceased so that their claims would he settled finally. The object is sought to be given effect to by Section 357 of the new code (Act 2 of 1974). Section 357 (3) provides that when a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount, as may be specified in the order, to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. The object of the Section therefore, is to provide compensation payable to the persons who are entitled to recover damage from the person sentenced even though fine does not form part of the sentence. Though Section 545 enabled the Court only to pay compensation out of the fine that would be imposed under the law, by Section 357 (3)when a Court imposes a sentence, of which fine does not form a part, the Court may direct the accused to pay compensation. In awarding compensation it is necessary for the Court to decide whether the case is a fit one in which compensation has to be awarded. " (25.) IN the case of Hah Kishan and State of Haryana v. Sukhbir Singh reported in AIR 1988 SS 2127 in paragraph 10 Their Lordships while explaining Section 357 (3), Cr. P.C. held "that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way". (26.) THE aforesaid judgment was applied in Pankajbhai Nagzibhai patel v. State of Gujarat reported in 2001 Cr LJ 950 (SC) : 2001 C Cr Lr (SC) 228. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way". (26.) THE aforesaid judgment was applied in Pankajbhai Nagzibhai patel v. State of Gujarat reported in 2001 Cr LJ 950 (SC) : 2001 C Cr Lr (SC) 228. Therefore the jurisdiction to award compensation to the victim is well settled in our country. The difficulty however arises from the fact that the victim in the present case is the accused himself. Therefore the letter of section 357, Cr. P. C. may not have any application to the present case. Whether the spirit shall apply to the case in hand is a question which we have to answer. (27.) ONE of the conditions for grant of compensation according to section 357 (l) (b) Cr. P. C. is that compensation by such person in the opinion of the Court should be recoverable in a Civil Court. (28.) IN the case of Smt. Nilabati Behera v. State of Orissa and Ors. reported in AIR 1993 SC 1960 Their Lordships treated a letter dated 14th september, 1988 as a writ petition under Article 32 for determining the claim of compensation made therein consequent upon the death of petitioners son Suman Behera, aged about 22 years, in police custody. In awarding compensation Their Lordships relied upon the Article 9 (5) of the international Covenant of Civil and Political Rights 1966 which reads as follows :-"anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. " (29.) THEIR Lordships in that judgment relied on an earlier judgment in the case of Bhagalpur Blinding case wherein it was held that the Court is not helpless to grant relief in a case of violation of the right to life and personal liberty and it should be prepared to forge new tools and device, new remedies, for the purpose of vindicating this precious fundamental rights. Their Lordships also relied on the judgment in the case of Union carbide Corporation v. Union of India reported in (1991)4 SCC 584 wherein mishra CJ held that "we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future. . . . . . . . . . . . . . . . . . . . . . . . . there is no reason why we should hesitate to evolve such principle of liability. . . . . . . . . . . . ". In the aforesaid judgment Courts jurisdiction under Articles 32 and 226 of the Constitution of India to award monetary compensation was reiterated. (30.) IN the case of D. K. Basu v. State of West Bengal reported in (1997)1 scc 416 : 1998 C Cr LR (SC) 45 Their Lordships held that the objective sought to be achieved in awarding compensation is "to apply balm to the wounds". In paragraph 54 of this Judgment Their Lordships held as follows :- "thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the state is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may tn a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit. " (31.) IN the case of Shakila v. V. R. Dhoble and Anr. reported in (2003)7 SCC 749 : 2003 C Cr LR (SC) 973, which was an appeal against an order of acquittal, although Their Lordships dismissed the appeal but the State Government was nonetheless directed to pay compensation of a sum of Rs. 1,00,000/-to the mother and child of the deceased in exercise of jurisdiction under Article 142 of the Constitution of India. That was a case in which the police personnel who had inflicted injuries on the deceased were not detected and the investigation had left much to be desired. Their lordships in the circumstances were not in a position to interfere with the judgment and the order for acquittal but justice was rendered by (a) granting compensation as indicated above and (b) by directing an enquiry to be conducted by the Head of the Police Force of the State under direct control of the Chief Secretary of the State to find out as to who were the persons responsible for the injuries on the body of the deceased and Their Lordships further directed that based on the investigation proceedings should be taken if necessary also against the persons acquitted. (32.) THE fact that the appellant has been a victim of unlawful arrest and detention is self-evident. Therefore his right to claim compensation is beyond any pale of doubt. The obligation of the respondents to pay compensation is, in our view, equally beyond any pale of doubt. (32.) THE fact that the appellant has been a victim of unlawful arrest and detention is self-evident. Therefore his right to claim compensation is beyond any pale of doubt. The obligation of the respondents to pay compensation is, in our view, equally beyond any pale of doubt. The only reason which may weigh with us to relegate the appellant to a civil suit or a public law remedy for recovery of compensation is that it may not be possible for us to conveniently assess the quantum of compensation which may need evidence to be laid on either side. It has been authoritatively laid down in the case of Sarwan Singh (supra) that Section 357 (3), Cr. P. C. the joint Select Committee felt, "will result in setting the claim once for all by doing away with need for a further claim in a Civil Court, and avoid needless worry and expenses to both sides". Our jurisdiction to grant compensation in the present case which on facts does not need any further enquiry except for fixation of the quantum of compensation is unquestionable. The case would have been different had there been any contention or bona fide contention as to whether the appellant had in fact been a victim of unlawful arrest or detention. We are firmly of the view that the appellant has been a victim of unlawful arrest and detention. (33.) THE case before us presents telling circumstance. There was a deliberate attempt both on the part of the Superior Officers of NCB, Eastern zonal Unit, Calcutta, and the Intelligence Officers, NCB, Eastern Zonal Unit, calcutta to frame the accused-appellant knowing well and/or in any event without any reasonable ground to believe that he was involved in this crime. They acted mala fide with an ulterior motive. The appellant, in his examination under Section 313, Cr. P. C. , also stated that he is innocent. (34.) WE have undoubted jurisdiction to pass appropriate orders including grant of token compensation to secure the ends of justice under section 482 of Cr. P. C. There is no prohibition in the code forbidding grant of compensation in a deserving case in exercise of power under Section 428, Cr. P. C. Section 69 of NDPS Act does not stand in the way when the officers acted otherwise than in good faith in discharging their functions and duties under the Act. P. C. There is no prohibition in the code forbidding grant of compensation in a deserving case in exercise of power under Section 428, Cr. P. C. Section 69 of NDPS Act does not stand in the way when the officers acted otherwise than in good faith in discharging their functions and duties under the Act. In the case of State of West Bengal v. Babu chakraborty reported in (2004)12 SCC 201 : 2004 C Cr LR (SC) 1012 Their lordships set aside an order passed by the High Court directing the State government to pay Rs. 1,00,000/-as compensation to the accused. The reason which weighed with Their Lordships was that there was nothing to show that the steps taken by the police were otherwise than in good faith which was also protected under Section 69 of the NDPS Act 1985. (35.) WE are of the view that ends of justice cannot be secured by simply acquitting the appellant. The social stigma attached to him is not likely to be washed out soon, not only the appellant but also his whole family is likely to be the sufferer of this wrong done to former. Respect and esteem of the fellow members of the society is possibly ones greatest possession, which if lost, cannot be restored by money. But an acquittal even with a token amount of compensation is likely to provide a balm to the wounded feelings and tarnished image of the appellant which is one of the objects of granting compensation as laid down in the case of D. K. Basu (supra). (36.) SECTION 358, Cr. P. C. specifically provides for a direction for payment of compensation, to a person groundlessly arrested, by any person causing a police officer to arrest another. This Section does not however contemplate a situation which has arisen before us. The appellant in this case was arrested groundlessly by the officers of NCB ; the officers in further abuse of their power coerced the appellant to subscribe his signature to a confessional statement drafted by the P. W. 4 on that basis they secured conviction of the accused and he has been languishing in jail for 9 years or more. The unusual situation in the present case can only be remedied by having recourse to Section 482, C. r. P. C. for the purpose of securing the ends of justice. The unusual situation in the present case can only be remedied by having recourse to Section 482, C. r. P. C. for the purpose of securing the ends of justice. We are firmly of the view that we are perfectly within our jurisdiction in exercising our inherent power to grant compensation. If any authority is needed reference may be made to the judgment in the case of mary Angel v. State of Tamil Nadu reported in (1999)5 SCC 209 : 1999 c Cr LR (SC) 305 in which Their Lordships upheld an order granting exemplary costs to the first informant by the High Court in exercise of power of revision. Their Lordships after reviewing the various authorities on the subject held as follows :- "in the result, we hold that while exercising inherent jurisdiction under Section 482, the Court has power to pass "such orders" (not inconsistent with any provision of the Code) including the order for costs in appropriate cases (i) to give effect to any order passed under the Code or (ii) to prevent abuse of the process of any Court, or (iii) otherwise to secure the ends of justice. " (37.) JUSTICE means as also implies rendering a person what is due to him. This can only be done by directing the respondents to pay a sum of Rs. 1,00,000/- (One lakh) to the appellant by way of token compensation. The appellant shall be entitled to sue the respondents for further compensation. If and when such a step is taken the amount granted herein shall be taken into consideration. (38.) THE appeal is thus allowed and the conviction is set aside. The respondents are directed to pay a sum of Rs. 1,00,000/-(One lakh) to the appellant within 12 (twelve) weeks from date. (39.) LOWER Court Records with a copy of this judgment to go down forthwith to the learned Trial Court for information and necessary action. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned Advocates for the parties on compliance of all formalities.