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2013 DIGILAW 322 (PAT)

Jumman Ansari v. Union of India

2013-03-08

ASHWANI KUMAR SINGH

body2013
JUDGMENT Ashwani Kumar Singh, J. The present appeal is directed against the judgment of conviction dated 25.6.2011 and the order of sentence dated 30.6.2011 passed by the learned 7th Additional Sessions Judge-cum-Special Judge N.D.P.S. Act, Muzaffarpur in Customs Case No. 125 of 2005 whereby the appellants have been convicted under Section 20(b)(C) of the Narcotic Drugs and Psychotropic Substances Act. 1985 (for short "the NDPS Act") and sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,00,000/- (one lakh) each. 2. The prosecution case is based on a written complaint filed by PW 2 Basant Kumar Singh on 19.1.2005 in the Court of learned Chief Judicial Magistrate, Muzaffarpur in respect of an occurrence which is alleged to have taken place on 18.1.2005. It is alleged that on 18.1.2005 during preventive checking Bus bearing registration No. BR06P/8186 coming from Bettiah and going to Patna was checked at Lasgaripur near Bhardwaj Dhaba on NH-28. Two passengers in the bus were suspected of carrying some contrabands concealed in their body. As such two persons sitting at the nearby Dhaba were requested to be witness to the search of both suspected passengers to which they both agreed. In presence of the witnesses, the suspected passengers were requested to get down from the bus. The customs officials disclosed their identity and informed them that they are being suspected of carrying some contraband goods concealed in their body and are to be searched and they have a constitutional right to exercise their option whether they wanted to be searched before a Magistrate or a Gazetted Officer of customs. Both the passengers opted to be searched before a Gazetted Officer of customs. The preventive team along with both the witnesses and both the suspected persons came to the Customs Divisional Office, Muzaffarpur and contacted Sri B.K. Singh, Superintendent Customs Division Muzaffarpur. The search was conducted in his presence and during search of appellant No.1. Jumman Ansari three packets of blackish substance kept in polythene and further kept in clothen bag concealed below the clothes worn by him were recovered. On query the appellant No.1 Jumman Ansari disclosed that the substance was charas. The three packets recovered from him were got weighed in his presence and in presence of both the witnesses and were found to be 3 kgs. On query the appellant No.1 Jumman Ansari disclosed that the substance was charas. The three packets recovered from him were got weighed in his presence and in presence of both the witnesses and were found to be 3 kgs. During search of appellant No. 2 Karimullah Ansari four packets of blackish substance kept in polythene and further kept in clothen bag concealed below the clothes worn by him were recovered. On query he also disclosed that the substance recovered from his possession was charas. The packets were got weighed in his presence and in presence of the witnesses and were found to be 2 kgs and 500 grams. 3. It has further been alleged that the statements of the appellants were recorded under Section 67 of the NDPS Act before the witnesses. They confessed their guilt and stated that at Bettiah Bus Stand one unknown person had met them and offered rupees one thousand each over and above the up and down fare if they could carry his charas up to Patna. In their respective statements they contended that for lust of money they agreed to carry the charas up to Patna. The same person had to take back the charas from them at Patna bus stand. They stated that on direction of that person they had concealed the charas below the clothes worn by them and boarded the bus for Patna. 4. It is further alleged in the complaint that the entire quantity of charas weighing 5 kgs. and 500 grams valued at Rs.1,65,000/- was seized under the NDPS Act and three representative samples of 5 grams each were drawn from all the packets of seized charas in presence of both the accused and the witnesses for the purposes of chemical test. The samples drawn were sent for chemical examination. The complainant alleged that on demand the accused persons could not produce any valid document for acquisition possession or carriage of commercial quantity of charas. Subsequently a formal complaint dated 7.3.2005 was filed in the Court of learned District & Sessions Judge Muzaffarpur. 5. On receipt of the aforesaid complaint the learned Sessions Judge Muzaffarpur vide order dated 22.3.2005 took cognizance of the offence and posted the case for evidence before charge. The samples drawn from the seized charas were sent for chemical examination. Subsequently a formal complaint dated 7.3.2005 was filed in the Court of learned District & Sessions Judge Muzaffarpur. 5. On receipt of the aforesaid complaint the learned Sessions Judge Muzaffarpur vide order dated 22.3.2005 took cognizance of the offence and posted the case for evidence before charge. The samples drawn from the seized charas were sent for chemical examination. The chemical examination report of the samples of the seized materials were sent to the Inspector Customs Division. Muzaffarpur by registered post and the same were submitted in the Court of learned Sessions Judge. Muzaffarpur on 2.5.2005 On 18.1.2006 the trial Court framed charge under Section 20(b)(ii)(C) of the NDPS Act against the appellants to which they pleaded not guilty and claimed to be tried. 6. In course of trial on behalf of the prosecution altogether seven witnesses were examined in order to prove the charge. They are PW 1. J.N. Lal Verma Superintendent Customs; PW 2, Basant Kumar Singh, Inspector Customs; PW 3, H.N. Jha, Inspector Customs; PW 4, Awadhes Kumar Pandey. Havildar Customs; PW 5, Sukhdeo Sah; PW 6, Jagdish Prasad and PW 7, Manoj Kumar Chaudhary, the three Sepoys of Customs. The prosecution has also proved certain documents which are as follows: (i) seizure list (Ext. 1 ) (ii) statement of accused, Jumman Ansari (Ext.2) (iii) statement of accused, Karimullah Ansari (Ext. 2 /l) (iv) Punchnama (Ext.3) (v) Signature of the complainant on complaint petition (Ext.4) (vi) Forensic Science Laboratory Report (Ext.5) 7. It is relevant to note that Exts.1, 2 and 4 have been proved by the complainant. Basant Kumar Singh (PW 2) and the Forensic Science Laboratory Report has been proved by the prosecution in terms of Section 294 of the Code of Criminal Procedure. 8. PW 1, J.N. Lal Verma in his examination-in-chief has corroborated the prosecution case as narrated in the complaint. In cross-examination he stated that he had not prepared the seizure list. He has further stated that he did not take any follow up action in the matter as he was simply a member of the raiding party. He admitted that he did not put his signature on any paper. He further admitted that the quantity of seized contraband from each of the accused has not been entered in the seizure list separately. He admitted that he did not put his signature on any paper. He further admitted that the quantity of seized contraband from each of the accused has not been entered in the seizure list separately. He stated that since he himself was present with the raiding party there was no necessity for observing any formality prescribed under Section 50 of the NDPS Act. He denied the defence suggestion that he was not a member of the raiding party and nothing incriminating was recovered from possession of the appellants in his presence. 9. PW 2, Basant Kumar Singh, also corroborates the allegations made in the complaint. He stated that the seizure was made in presence of independent witnesses, namely, Sanjay Kumar and Rakesh Kumar. They had signed on the seizure list. He has also stated that the statements of the appellants were recorded by one Shailendra Chaudhary who had put his signature after recording the statements. The accused persons had also put their thumb impression on their respective confessional statements. In cross-examination conducted before charge, he admitted that in the seizure list he had not mentioned the place of seizure as Lasgaripur. He also admitted that in the seizure list the quantity of contraband recovered from each of the accused has not been separately mentioned. It is relevant to note here that PW 2 was examined before charge on 27.9.2005. On 4.2.2006, PW 2 appeared for cross-examination after charge. From the records, I find that both the accused were produced before the Court on that date but no lawyer appeared for them to cross-examine PW 2. The trial Judge discharged PW 2 on 4.2.2006 itself even without any cross-examination. 10. From the records, it further appears that both the accused had repeatedly requested the trial Court to provide some counsel to defend them as due to poor financial condition they were unable to hire lawyer. Being moved, the trial Court, ultimately, by order dated 30.11.2006 appointed one Mr. Bachcha Pathak, an Advocate from defence panel to defend the accused persons. Unfortunately, the newly appointed defence counsel also made no effort to recall the complainant (PW 2) for cross-examination in course of trial. 11. PW 3. H.N. Jha was examined on 22nd January, 2007. He also corroborated the prosecution case as narrated in the complaint. Bachcha Pathak, an Advocate from defence panel to defend the accused persons. Unfortunately, the newly appointed defence counsel also made no effort to recall the complainant (PW 2) for cross-examination in course of trial. 11. PW 3. H.N. Jha was examined on 22nd January, 2007. He also corroborated the prosecution case as narrated in the complaint. In cross-examination he admitted that he had no role in conducting search of the person of the accused persons. He also admitted that he had neither apprehended the accused persons nor put his signature either on the seizure list or on the samples or on the envelopes in which the samples so drawn were sealed. He denied the defence suggestion that he was not present at any point of time in the alleged search and seizure and had deposed falsely. 12. PW 4. Awadhesh Kumar Pandey stated in his examination-in-chief that on 18.1.2005 when the bus was intercepted by the preventive team of Customs Division a search was conducted by Mr. B.K. Singh (complainant). In the alleged search charas was found from possession of the two appellants. He stated that from possession of Jumman Ansari 3 Kgs. charas was recovered whereas from possession of Karimullah Ansari 2.5 Kgs charas was recovered. He stated that the two appellants along with two independent witnesses and the seized charas were brought to Customs Office, Mujaffarupr. According to him the seizure list was prepared in the Customs Office. In cross-examination he stated that his role was confined to the extent of intercepting the bus in question. However he stated that when the bus stopped only officers went inside and at the time of search he was not inside the bus. When officers caught the appellants and brought them down from the bus they were told that charas was recovered from them. In further cross-examination he admitted that the entire occurrence took place between 12 noon to 2 p.m. on 18.1.2005. 13. PW 5 Sukhdeo Sah stated in examination-in-chief that when the raiding party reached at Lasgaripur near Bhardwaj Dhaba on N.H.-28 at about 11 p.m. the bus in question came. The officers conducted search inside the bus. On suspicion two passengers were requested to get down from the bus. During search, recoveries were found from their possession. The seizure list was prepared in the office. The officers conducted search inside the bus. On suspicion two passengers were requested to get down from the bus. During search, recoveries were found from their possession. The seizure list was prepared in the office. In cross-examination he admitted that he had not put his signature on any paper in the whole proceeding of the alleged search and seizure. He further admitted that the seized packets of charas were not weighed at the place of seizure. 14. PW 6. Jagdish Prasad another Constable also stated that the search was made inside the bus. Both the appellants were apprehended and from their possession charas were recovered. He stated that officers prepared the seizure memo after they came to office. According to him the seizure was conducted at about 2 p.m. on 18.1.2005. 15. PW 7. Manoj Kumar Chaudhary stated that he was a member of the raiding team. The raid was conducted at Lasgaripur near Bhardwaj Dhaba on NH 28 and the charas were seized from the possession of the appellants inside the bus. According to him 3 Kgs. charas was recovered from possession of Karimullah Ansari and 2.5 Kgs. charas was recovered from the possession of Jumman Ansari. He stated that both the accused were brought to the Customs Office where the alleged seizure memo was prepared. In cross-examination he admitted that he did not sign any paper relating to alleged search and seizure of the contraband in question. 16. From the evidence on record. I find that no independent witness has been examined by the prosecution in course of trial. The two seizure list witnesses namely. Rakesh Kumar and Sanjay Kumar were also not examined on behalf of the prosecution. There is no explanation as to why the prosecution failed to examine them. I further find that the prosecution has also failed to examine Mr. B.K. Singh Superintendent Customs Division. Muzaffarpur in whose presence it is alleged that the appellants were searched. There is no explanation as to why he was not examined in course of trial. 17. I further find that seizure list which has been proved and marked as Ext. 1 is composite one. It does not show or specify the quantity of contraband charas seized from each of the accused. In my view such a defective seizure cannot form the basis for conviction. 18. 17. I further find that seizure list which has been proved and marked as Ext. 1 is composite one. It does not show or specify the quantity of contraband charas seized from each of the accused. In my view such a defective seizure cannot form the basis for conviction. 18. On perusal of evidence I further find that the witnesses examined on behalf of the prosecution are not consistent. PWs 4 to 7 have clearly stated in the Court that the appellants were searched inside the bus. They have also stated that the appellants were brought to the Customs Office after the alleged recovery of contraband charas from their possession. Thus admittedly search and seizure were not conducted in accordance with law. It is true that PW 1. Mr. J.N. Lal Verma was a Gazetted Officer. He was a member of the raiding team. However in cross-examination he admitted that the search and seizure was not made by him and he had not participated in any follow up action. Thus admittedly the alleged seizure was not made in presence of Mr. J.N. Lal Verma. If search and seizure were made at the place of occurrence itself there was no justification for preparing the seizure memo at the Customs Office. 19. I further find from the records that as per the forwarding report dated 19.1.2005 the bus in which the appellants were travelling was intercepted at 3.30 p.m. on 18.1.2005 at Lasgaripur near Bhardwaj Dhaba on NH 28 but the seizure list was prepared after seven hours at 11 p.m. on 18.1.2005 at the Customs Office Muzaffarpur Division. 20. I find that there was complete failure on the part of the prosecution to inform the appellants regarding the existence of their right to be searched before a Gazetted Officer or a Magistrate. The alleged search and seizure were conducted in utter violation of the safeguards provided under Section 50 of the N.D.P.S. Act. 21. The scope of the provisions of Section 50 of the N.D.P.S. Act is no more res integra. The alleged search and seizure were conducted in utter violation of the safeguards provided under Section 50 of the N.D.P.S. Act. 21. The scope of the provisions of Section 50 of the N.D.P.S. Act is no more res integra. In Vijaysinh Chndubha Jadeja v. State of Gujarat, since reported in (2007) 1 SCC 433 a three Judge Bench of the Apex Court had taken the view that the accused must be informed of his right to be searched in presence of a Magistrate and/or a Gazetted Officer, but in the light of some other judgments of the Apex Court the matter was referred to a larger Bench and. accordingly, a Constitution Bench was constituted in order to give an authoritative pronouncement on the interpretation of the provision of Section 50 of the N.D.P.S. Act. 22. The Constitution Bench of the Apex Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, since reported in 2011 (1) East Cr C 30 (SC) : (2011) 1 SCC 609 formulated the question to be answered in para 1 of the judgment which reads as under : "The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said section?" 23. The Constitution Bench of the Apex Court after discussing the provision of Section 50 of the NDPS Act in detail answered the question in paras 29, 31 and 32 of the judgment which reads as under: "29. In view of the foregoing discussions, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. In view of the foregoing discussions, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate we have no hesitation in holding that insofar as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the, illicit article from the person of the accused during such search. Thereafter the suspect mayor may not choose to exercise the right provided to him under the said provision." 31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. 32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity transparency and creditworthiness to the entire proceedings in the first instance an endeavour should be to produce the suspect before the nearest Magistrate who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings it may verily strengthen the prosecution as well." 24. It would not only add legitimacy to the search proceedings it may verily strengthen the prosecution as well." 24. In the complaint it has been stated that the customs officials informed them that they have a constitutional right to exercise their option whether they wanted to be searched before a Magistrate or a Gazetted Officer of customs and both the appellants opted to be searched before a Gazetted Officer of customs. Section 50 of the NDPS Act does not say that accused has to be searched before a Gazetted Officer of customs. Firstly the complainant was not correct in confining the option of the appellants of being searched before an officer of the department to which he himself belonged. Secondly from the evidence of PWs 4, 5, 6 and 7 it is explicit that the appellants were searched at the place of occurrence itself in absence of any Magistrate or Gazetted Officer. Thirdly the preparation of seizure list in the Customs Divisional Office at Muzaffarpur was also contrary to the mandate of law. 25. In view of the law laid down by the Constitution Bench of the Apex Court in Vijaysinh Chandudbha Jadeja (supra). I do not think that the obligation under Section 50 of the NDPS Act has been discharged statutorily by the prosecution in this case. 26. The next point which is to be considered in the present case is as to whether the confessional statements made by the appellants before the complainant on 18.1.2005 would be admissible in evidence or not. It is to be noted that the alleged confessional statements were scribed by one Shailendra Chaudhary. There is no mention of time as to when the confessional statements were recorded. The scribe namely, Shailendra Chaudhary, has also not been examined in course of trial. There is no explanation on behalf of the prosecution for his non-examination. In such view of the matter no reliance can be placed on such confessional statements which have not been duly proved in Court. 27. I further find that in the forwarding report, the time of occurrence is stated as 3.30 p.m. on 18.11.2005. In the seizure memo the time of seizure of charas is mentioned as 11 p.m. on 18.11.2005. In such view of the matter no reliance can be placed on such confessional statements which have not been duly proved in Court. 27. I further find that in the forwarding report, the time of occurrence is stated as 3.30 p.m. on 18.11.2005. In the seizure memo the time of seizure of charas is mentioned as 11 p.m. on 18.11.2005. PW 5 stated that on 18.1.2005 at about 11 p.m. the bus, in question, came and according to him the search of the appellants was conducted at the same time PW 4 stated that the occurrence took place between 12 p.m. to 2 p.m. whereas PW 6 stated that the occurrence took place at 2 p.m. All the witnesses examined on behalf of the prosecution are official witnesses. They are totally inconsistent to each other in respect of time of interception of the bus and search of the appellants. 28. In view of what has been held above. I find that the conviction of the appellants can not be sustained. Accordingly I allow the appeal and set aside the impugned judgment of conviction and order of sentence passed against the appellants. The appellants who are in Jail are directed to be released forthwith if they are not required in any other case. Appeal allowed.