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2008 DIGILAW 740 (PNJ)

Ishrat Begum v. Inspector Of Customs

2008-03-24

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction 6.12.2001, and the order of sentence of the even date, rendered by the Court of Additional Sessions Judge-cum-special Judge, Amritsar, vide which it convicted the accused (now appellant), for the offences, punishable under Sections 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the Act only) and sentenced her to undergo RI for a period of 10 years and to pay a fine of Rs. 1,00,000 in default of payment of fine to undergo further rigorous imprisonment, for a period of three years and further sentenced her to undergo RI for a period of 10 years and to pay a fine of Rs. 1,00,000 in default of payment of fine, to undergo further rigorous imprisonment, for a period of three years, under Section 23 of the Act. Both the substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that can 25.7.2000, Gulzar Singh Sandhu, Inspector Customs, was posted at Land Customs Station Attari Rail. On that day, the accused alighted from Samjhauta Express train which came from Lahore at Attari Railway Station. She reported at Counter No.2 where Gulzar Singh Sandhu Inspector Customs and Sh. J.K. Nanda were posted, for her immigration clearance. Shri Gulzar Singh, Inspector Customs, asked the accused to declare as to whether she had any contraband or narcotic with her. She replied in the negative and became nervous. A suspicion arose in the mind of Gulzar Singh, Inspector Customs. He called two independent witnesses namely Kulwant Singh and Jasbir Singh. Mr. J.K. Handa, who disclosed his identity to the accused that he was a Gazetted officer of the customs Department asked her as to whether she wanted to be searched before a nearest Magistrate or a Gazetted Officer. The accused reposed confidence in J.K. Handa. Her consent memo Ex. PF was reduced into writing, which was explained to her, in her own language and she thumb marked the same in token of its correctness. On search of the baggage, being carried by the accused, 18 motor vehicle parts were recovered. The motor vehicle parts were got dismantled. Each was found containing small polythene bags. The small polythene bags, aforesaid, were found containing brownish whitish powder substance. On search of the baggage, being carried by the accused, 18 motor vehicle parts were recovered. The motor vehicle parts were got dismantled. Each was found containing small polythene bags. The small polythene bags, aforesaid, were found containing brownish whitish powder substance. The said powder was tested with the drug testing kit and the result was positive for heroin. The heroin was weighed, which came to be 5.540 Kgs., valued at Rs.5.54 crores, in the international market. The detail of weighment of each bag was given in a separate memo. The heroin so recovered, was in 18 small polythene bags. From each packet, two samples of five grams were taken out. The samples were sealed with the seal bearing impression 152 of Customs Division Amritsar. 18 samples were put into one envelope and the remaining 18 samples were put in another envelope. The same were sealed with the seals. The dismantled motor parts were also put in a gunny bag and were sealed with seal No.152. Test memo Ex. PH was also prepared, which showed the facsimiles of the seals used for sealing the samples and packets. Seal after use was handed over to in-charge Malkhana Attari. Passport of the accused Ex. PJ and Visa form Ex. PK were also taken into possession. Pahchnama Ex.PL, which was thumb marked by the accused and attested by both the panches besides J.K. Handa Superintendent was prepared. Grounds of arrest and seizure Ex. PM were supplied to the accused. Personal search of the accused was also conducted and memo Ex. PN in this regard was prepared, which was signed by her. Special report, Ex. PO was sent to the senior officers. The accused made a voluntary statement Ex. PP on 26.7.2000, which was read over and explained to her in her own language and informing her that it could be used against her. She thumb marked the same. Vide application Ex. PQ, she was produced before the Duty Magistrate on 26.7.2000, along with the case property. The Judicial Magistrate, concerned, passed the order Ex. PR. On return to Customs Office, Amritsar, the entire case property including the samples was deposited with Suresh Kumar In-charge Malkhana. On 27.7.2000, 18 representative samples were sent to the Central Control Revenue Laboratory through D.P. Singh, Inspector, vide authority letter Ex. PS. After the receipt of report, Ex. PT, complaint Ex. The Judicial Magistrate, concerned, passed the order Ex. PR. On return to Customs Office, Amritsar, the entire case property including the samples was deposited with Suresh Kumar In-charge Malkhana. On 27.7.2000, 18 representative samples were sent to the Central Control Revenue Laboratory through D.P. Singh, Inspector, vide authority letter Ex. PS. After the receipt of report, Ex. PT, complaint Ex. PU was presented in the Court against the accused. 3. On her appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 22 and 23 of the Act, was framed against the accused, by the Additional Sessions Judge/Special Judge, Amritsar, to which she pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Suresh Kumar, Inspector Customs, PW1, Gulzar Singh Sandhu, Inspector Customs, PW2, D.P. Singh, Inspector Customs, PW3 and J.K. Handa, Superintendent Customs, PW4. Mr. P. L. Bindra, Counsel for the complainant gave up PWs. Mrs. Manjit Kaur, Inspector Customs and Narinder Kumar, Chemical Examiner as un-necessary. He also gave up Kulwant Singh and Jasbir Singh PWs. as having been won over by the accused. Thereafter, he closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. She was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication. It was stated by her that no recovery of heroin was affected from her. She further stated that she had brought only Manaka Mirza Chappals, Lohis and other gifts to give to her relatives. She further stated that the customs officials had taken her thumb impressions on blank papers with the assurance that she was only a witness against Mohd. Rafiq and Zahir and later on those papers were converted into documents, so as to fabricate this false case against her. She further stated that the customs officials had also snatched her gift items, six lady suits, six pairs of lady chappels and five Lohis. She, however, did not lead any evidence in defence. 6. The Additional Sessions Judge/Special Judge, Amritsar, convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, against the judgment of the Additional Sessions Judge/Special Judge, Amritsar, the instant appeal was filed by Smt. Ishrat Begum, accused/appellant. 8. I have heard Sh. V.K. Chaudhari, Counsel for the appellant, Sh. She, however, did not lead any evidence in defence. 6. The Additional Sessions Judge/Special Judge, Amritsar, convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, against the judgment of the Additional Sessions Judge/Special Judge, Amritsar, the instant appeal was filed by Smt. Ishrat Begum, accused/appellant. 8. I have heard Sh. V.K. Chaudhari, Counsel for the appellant, Sh. O.P. Dabla, AAG, Punjab, for the respondent, and have gone through the evidence, and record of the case, carefully. 9. The learned counsel for the appellant, at the very outset, vehemently, contended that the prosecution miserably failed to prove that the accused was found in conscious possession of heroin, referred to above. He further submitted that in the absence of proof of such a fact, no offences punishable under Sections 22 and 23 of the Act were constituted. The submission of the counsel for the appellant, in this regard, does not appear to be correct. From the cogent, convincing and trustworthy evidence of Suresh Kumar, Inspector Customs, PW1, Gulzar Singh Sandhu, Inspector Customs, PW2, D.P. Singh, Inspector Customs, PW3 and J.K. Handa, Superintendent Customs, PW4, it was duly proved beyond doubt that as soon as the accused alighted at Attari Railway Station from Samjhauta Express Train, she was found in possession of 18 motor vehicle parts. When the motor vehicle parts were got dismantled by summoning a mechanic, the same were found containing 18 small polythene bags. These 18 small polythene bags were found containing 5.540 Kgs heroin. Nothing could be brought out, during the cross-examination of these witnesses which may go to iscredit their evidence. They had no ill-will, grudge or enmity against the accused to falsely implicate her in the present case. Even Irshat Begum, accused, made a statement on 26.7.2000 under Section 108 of the Customs Act, before Mr. J.K. Handa, Superintendent Customs, that when the 18 motor vehicle parts being carried by her in her baggage, were searched by Mr. J.K. Handa and other Customs Officers, the same were found containing plastic packets, the contents where of were found to be 5.540 Kgs heroin. She further stated that she was a resident of Lunda Bazar and a person namely Arshad @ Bhola working as a Cloth Merchant, handed over to her the motor vehicle parts, containing 18 packets of heroin. She further stated that Mohammed Raffiq was also accompanying her to India. She further stated that she was a resident of Lunda Bazar and a person namely Arshad @ Bhola working as a Cloth Merchant, handed over to her the motor vehicle parts, containing 18 packets of heroin. She further stated that Mohammed Raffiq was also accompanying her to India. She further stated that she did not know as to what was contained in the motor vehicle parts. She further stated that her financial condition was not sound and she was paid a sum of Rs.9,000 for carrying these motor vehicle parts and she brought the same, which ultimately, found containing heroin, referred to above. The statement Ex. PP, made by the accused, is legally admissible into evidence. The statement was made by her voluntarily and without any pressure. At the time of accepting hefty amount of Rs.9,000, for carrying these motor vehicle parts, the accused must be knowing that the same, contained some contraband. Otherwise she would not have been paid a sum of Rs.500 per motor vehicle part, for carrying the same to India. In these circumstances, the physical possession of the accused in respect of motor vehicle parts containing heroin was proved beyond a reasonable doubt. Once the possession of heroin was proved, then presumption under Sections 54 and 35 of the Act operated against her. It was for her to rebut the statutory presumption operating against her that she was not in conscious possession of heroin, the International value of whereof was 5.54 crores. 10. Section 54 of the Act ibid, is extracted as under: "Presumption from possession of illicit articlesIn trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of: (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium, poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controller substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily." 11. Section 35, which relates to the presumption of culpable mental state, is extracted as under: "Presumption of culpable mental state (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. ExplanationIn this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." 12. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he/she is presumed to have committed the offence, under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise. In Madan Lal and another v. State of H.P. Madan Lal and Another v. State of H.P., 2003 SCC(Cri.) 1664, it was held as under: "The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." 13. The word conscious; means awareness about a particular fact. It is the state of mind which is deliberate or intended. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." 13. The word conscious; means awareness about a particular fact. It is the state of mind which is deliberate or intended. It was further held that possession in a given case need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. In her statement recorded under Section 313 of the Code of Criminal Procedure, the accused, however, stated that no recovery of alleged goods was effected from her. She further stated that she had only brought Manaka Mirza Chappals, Lohis and other gifts to give to her relatives. The Customs Officers had taken her thumb impression on blank papers with the assurance that she was only a witness against Mohd. Rafiq and Zahir and later on those documents were converted into one of recovery and the case was planted against her. The accused, thus, failed to explain satisfactorily as to how she was found in conscious possession of a big hall of heroin worth Rs.5.540 crores (international value). The submission of the learned Counsel for the appellant to the effect that the accused was not found in conscious possession of 5.540 Kgs of heroin, being without merit, must fail, and the same strands rejected. 14. It was next contended by the learned counsel for the appellant that the motor mechanic, who was summoned to dismantle the motor vehicle parts, was not examined by the prosecution, as a result whereof, the case of the prosecution became doubtful. It is no doubt true that the motor mechanic was not examined by the prosecution complainant. There was no necessity of examining the motor mechanic in this case. He was only summoned to dismantle the motor vehicle parts. From the cogent, convincing and trust-worthy evidence of the customs officers, referred to above, it wasproved that when the motor vehicle parts, being carried by the accused, in her baggage, were dismantled, the same were found containing heroin in small packets, weighing 5.540 Kgs. He was only summoned to dismantle the motor vehicle parts. From the cogent, convincing and trust-worthy evidence of the customs officers, referred to above, it wasproved that when the motor vehicle parts, being carried by the accused, in her baggage, were dismantled, the same were found containing heroin in small packets, weighing 5.540 Kgs. When the other evidence, referred to above, was sufficient to prove the factum of conscious possession of heroin, recovered from the accused, non-examination of the mechanic, who dismantled the motor vehicle parts, did not cause any dent in the prosecution story. It was for the Additional Public Prosecutor for the State to decide, as to how many witnesses, he wanted to examine to prove the case of the prosecution. It was not necessary for him to examine each and every witness, cited in the list of witnesses on the same point. In this view of the matter, non-examination of the motor mechanic, who dismantled the motor vehicle parts, did not at all cause any dent in the prosecution story. The submission of the counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. It was next contended by the counsel for the appellant that two independent witnesses Kulwant Singh and Jasbir Singh, though joined, at the time of the alleged recovery, yet they were not examined by the prosecution for the reasons best known to it. It is no doubt true that Kulwant Singh and Jasbir Singh, independent witnesses were joined at the time of effecting the recovery from the accused. Since, both independent witnesses, joined hands with the accused, during the trial of the case, the counsel for the complainant gave them up as won over, vide statement dated 17.7.2001. Since, Kulwant Singh and Jasbir Singh were going to damage the case of the prosecution, the counsel for the complainant, thought it better, not to examine theirs. It was, in these circumstances, that they were given up as won over. In Roop Singh v. State of Punjab, 1996 (1)RCR(CCrl.) 146 (P&H). a Division Bench of this Court, held that no adverse inference, can be drawn, when independent witness was given up, by the prosecution, as won over by the accused. It was, in these circumstances, that they were given up as won over. In Roop Singh v. State of Punjab, 1996 (1)RCR(CCrl.) 146 (P&H). a Division Bench of this Court, held that no adverse inference, can be drawn, when independent witness was given up, by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh v. State of Punjab 1983 Criminal Law Journal 1218 (DB)., it was held that where the independent witness, was given up as won over, by the accused, and only the official witnesses were examined, by the prosecution, who were considered to be not interested, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another v. State of Gujarat AIR 1988 SC 696. it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals and does not involve themselves in it. In State of NCT of Delhi v. Sunil (2000) 1 SCC 748. it was held as under: "It is an archaic notion that actions of the Police Officers should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the Legislature." 16. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. As a proposition of law, the presumption should be the other way round. The official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the Legislature." 16. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In this view of the matter, non-examination of the aforesaid witnesses, did not cause any dent in the prosecution story .The submission of the learned counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. It was next submitted by learned counsel for the appellant that no sample seal was prepared at the spot. He further submitted that in the absence of preparation of sample seal, the link evidence was incomplete. The submission of the counsel for the appellant, in this regard, also does not appear to be correct. Mr. J.K. Handa, Inspector Customs; who appeared in the witness box as PW4, during the course of examina-tion-in-chief stated that test memo Ex. PH of the seal bearing impression No.152 Customs Division Amritsar was prepared and the seal after use was handed over to the competent authority. From the statement of J.K. Handa, a responsible Officer of the Customs Department, it was duly proceed that the facsimiles of the seal were duly affixed on Ex. PH, the test memo, on the back side, whereof, there is report of the Chemical Examiner. Even in the report Ex. PJ of the Chemical Examiner, the following endorsement was made: "Sealed" samples returned herewith. Facsimile of seal of "Chemical Examiner NDPS Control Lab." affixed on samples. Under these circumstances, the submission of the counsel for the appellant, to this effect that no sample-seal was prepared stands rejected. 18. It was next contended by the counsel for the appellant that the statement of the accused, recorded under Section 108 of the Customs Act, was not in the language, known to her and as such could not be used against her. No doubt, the statement was recorded in Punjabi. However, it was proved from the evidence of all the witnesses that the contents of all the documents, including the statement, were read over and explained to the accused, in her own language and only after admitting the same to be correct, she thumb marked the same. No doubt, the statement was recorded in Punjabi. However, it was proved from the evidence of all the witnesses that the contents of all the documents, including the statement, were read over and explained to the accused, in her own language and only after admitting the same to be correct, she thumb marked the same. In this view of the matter, the submission of the learned counsel for the appellant, being without merit, must fail, and the same stands rejected. 19. It was next contended by the counsel for the appellant that, according to Suresh Kumar, PW1 on 26.7.2000 the case property of this case, vide entry No.21 was deposited by Shri G.S. Sandhu, Inspector Customs and the same weighed 5.360 Kgs whereas, PW2 Gulzar Singh, Inspector Customs stated that the heroin recovered, weighed 5.540 Kgs. The counsel for the appellant contended that since both the witnesses, in their deposition, were not atone, with regard to the quantity of heroin allegedly recovered, a doubt was cast on the prosecution story as to whether any recovery was effected from the accused or not. It appears that due to slip of tongue or lapse of sufficient time, such discrepancy occurred in the statements of the witnesses. However, there are so many other documents on the record, i.e. Inventory Report Ex. PE, seizure memo Ex. PO, and Ex. PS, the letter addressed to the Chief Chemist, Central Revenue Laboratory, Indian Agricultural Research Institute, Pussa Road, New Delhi, wherein the quantity of heroin recovered was written as 5.540 Kgs. Such discrepancy having occurred in the statements of the witnesses on account of slip of tongue or lapse of time did not cause any dent in the prosecution story. In this view of the matter, the submission of the counsel for the appellant, being without merit, must fail, and the same stands rejected. 20. It was further contended by the counsel for the appellant that the mandatory provisions of Section 50 of the Act were not complied with. It may be stated here that the provisions of Section 50 of the Act were not applicable to the facts of the present case. In the instant case, the recovery of heroin was not affected from the person of the accused, but from the motor vehicle parts, which she was carrying in her baggage. In State of Punjab v. Baldev Singh 1996(6) SCC 172. In the instant case, the recovery of heroin was not affected from the person of the accused, but from the motor vehicle parts, which she was carrying in her baggage. In State of Punjab v. Baldev Singh 1996(6) SCC 172. a Constitution Bench of the Apex Court settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen v. State of Rajasthan.JT 2004(1) SC 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principle of law laid down the aforesaid authorities, the provisions of Section 50 were not applicable to the search in the instant case, the question of compliance of the same did not at all arise. In this view of the matter, the submission of the counsel for the appellant, being without merit, must fail, and the same stands rejected. No other point was urged, by the counsel for the parties. 21. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld. 22. For the reasons recorded, hereinbefore, this appeal is dismissed. The judgment of conviction and the order to sentence dated 6.12.2001 are upheld. 23. If the accused on bail, her bail bonds shall stand cancelled. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law to comply with the judgment with due promptitude.