Crl. Appeal No. 1386-SB of 2001 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 1386-SB of 2001 Date of decision. 23.12.2008 Mrs. Ayo Francisca Aisabokhai, Nigerian National Passport No. A- 107039, 6 Orole Street Ejigbo Osolo Lagos State, Nigeria. ....... Appellant Versus Inspector of Customs, Ministry of Finance, Department of Revenue, Govt. of India, Land Customs Station, Attari road, Customs Commissionerate, Amritsar. ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Varun Tara, Advocate for Mr. Vikram K. Chaudhari, Advocate for the appellant. Mr. D.D.Sharma, Advocate for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 01.10.2001, rendered by the Court of Additional Sessions Judge- cum- Special Judge, Amritsar, vide which it convicted the accused (now appellant), for the offence, punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Crl. Appeal No. 1386-SB of 2001 --2-- (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 lac, in default of payment of fine to undergo further rigorous imprisonment, for a period of three years. She was further sentenced her to undergo RI for a period of 10 years, and to pay a fine of Rs. 1 lac, in default of payment of fine, to undergo further rigorous imprisonment, for a period of three years, under Section 23 of the Act. However, both the substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that on 02.06.2001 Satish Kumar Sharma, Inspector Customs, was posted at Land Customs Station, Attari road. On that day, the accused came from Pakistan, at Land Customs Station Attari Road. After health and immigration formalities, the accused reported at Counter No.1 of the said Customs Station, for clearance, where he ( Satish Kumar Sharma ) was on duty. D.S. Kalsi, was supervising the counter. Satish Kumar Sharma, asked the accused, as to whether, she wanted her search to be conducted, in the presence of a Gazetted Officer, or a Magistrate, but she reposed confidence, in D.S.Kalsi, Superintendent Customs. Her option memo Ex.PA, was reduced into writing, signed by her, and attested by D.S. Kalsi, Satish Kumar, Sharma, Seizing Officer as also Crl. Appeal No. 1386-SB of 2001 --3-- thumb marked by Surinder Kaur and Raj Kaur, independent witnesses. The accused knew English. The consent memo was read over and explained to her. Parminder Kaur, lady Customs Inspector, was called, who conducted the search of the accused. The accused was wearing slacks and a salwar. Under the slacks, she had tied two black clothes, around her thigh. The cloth tied around the right thigh was containing a packet, weighing 280 grams white powder and the cloth tied around the left thigh, was containing a packet of 245 grams white powder and a small packet containing 35 grams brown powder. All the three packets were tested with drug testing kit and the same gave positive result of heroin. All the three packets were weighed and weighment sheet Ex.PB was prepared. Three samples of 5 grams from each of the three packets, were taken out. The samples numbering 9, were sealed with seal No. 83 of the Customs Division Amritsar. The packets, containing the remaining contraband, were also sealed with the same seal. Test memo Ex.PC was prepared. Facsimile of the seal was also prepared. Seal after use was returned to the competent authority. Panchnama Ex.PD, which was signed by Satish Kumar, Inspector, D.S. Kalsi, Parminder Kaur Lady Inspector and thumb marked by Surinder Kaur and Taj Kaur, was prepared. The accused also signed the same. A copy of the Panchnama was supplied to the accused. Seizure memo Ex.PE, was prepared, which Crl. Appeal No. 1386-SB of 2001 --4-- bore the signatures of the accused and attested by the aforesaid witnesses. Grounds of arrest Ex.PF, were supplied to the accused. Special report Ex.PG was sent to the Senior Officers. Another special report Ex.PG/1 was also sent to the Senior Officers and it bore the signatures of M.L. Bhagat, A.C. Land Customs Station, Attari Road. Ex.PH, voluntary confessional statement of the accused, was recorded on 02.06.2001 and before her statement, she was made aware that the same, could be used against her. She was neither threatened, nor coerced nor beaten before recording her statement, under Section 67 of the Act, and she signed the same, in token of its correctness. Copy of the statement was supplied to the accused. On 03.06.2001, she again made a voluntary confessional statement Ex.PJ, without any threat, coercion or beatings. It was read over to her and she signed it, in token of its correctness. Copy of the same was supplied to the accused. On the same day, she was also produced before the Court of Judicial Magistrate Ist Class, Amritsar, alongwith the case property and samples. On 04.06.2001, Satish Kumar Sharma, Inspector, deposited the case property alongwith packing material, in the Malkhana Customs Division. Inventory No.19 dated 4.6.2001 Ex.PM, and inventory No. 20 dated 4.6.2001, Ex.PN, were prepared regarding the deposit of three representative samples, duly sealed with Suresh Kumar and another inventory No. N24/2001, Crl. Appeal No. 1386-SB of 2001 --5-- Ex.P0, relating to the deposit of three representative samples sealed with seal No. 83 Customs Division Amritsar, who also prepared. On 04.06.2001, three representative samples, were sent through Jatinder Yadav, Inspector, alongwith test memo, and authority letter Ex.PP, to the Central Revenue Control Laboratory, New Delhi, with seals intact. He deposited the same on 6.2.2001 and brought a receipt Ex.PQ to Satish Kumar Sharma, Inspector. Information, regarding the arrest of the accused, was sent to the Nigerian High Commission, New Delhi, on 4.6.2001. Memo of personal search Ex.PT, was prepared. Memo of arrest Ex.PU, was also prepared. After the receipt of report of the Central Revenue Control Laboratory Ex.PR, complaint Ex.PV was submitted 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 complainant. Charge under Sections 22 and 23 of the Act, was framed against the accused, to which she pleaded not guilty and claimed judicial trial. 4. The complainant, in support of his case, examined Satish Kumar Sharma, Inspector Customs, Seizing Officer, ( PW1 ), D.S. Kalsi, Superintendent Customs, ( PW2 ), Jatinder Yadav, Inspector Customs, ( PW3), Parminder Kaur, Inspector Customs, ( PW-4 ) and Suresh Kumar, Inspector Customs ( PW-5 ). Surinder Kaur and Raj Kaur, independent witnesses, Crl. Appeal No. 1386-SB of 2001 --6-- were given up by the Counsel for the complainant, as having been won over by the accused. Thereafter, the Counsel for the complainant, closed the evidence, vide separate statement on 04.09.2001. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and she was put all the incriminating circumstances, appearing against her, in the complainant evidence. It was stated by her, that she was beaten up by the Lady Inspector. 500 dollars, mobile phone, four bags containing valuable electronic goods etc. were forcibly snatched from her by Parminder Kaur, Lady Inspector, and other Customs Staff. She also stated that her signatures were obtained, on blank papers, by the Customs Officers. She, however, did not lead any evidence in her defence. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. 8. Vide letter No. 8705 dated 15.12.2008, the Superintendent, Women Jail, Ludhiana, where the accused Crl. Appeal No. 1386-SB of 2001 --7-- ( appellant ) was lodged, sent copy of the inquest report and other documents, relating to the death of the appellant. It was evident from these documents that she died on 09.01.2004 at 7.30 PM, in the hospital. 9. Since the appellant had also filed the appeal against the sentence of imposition of fine, it could not abate, as a whole, as per the provisions of Section 394(2) of the Code of Criminal Procedure. In this view of the matter, the Counsel for the appellant, submitted that he be heard on merits, of the appeal. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, at the very outset, submitted that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is proved from the statement of Satish Kumar Sharma, Inspector Customs, ( PW-1 ), that D.S. Kalsi, Superintendent Customs, ( PW-2 ), after disclosing his identity to the accused, gave her option, as to whether, she wanted her Crl. Appeal No. 1386-SB of 2001 --8-- search to be conducted, in the presence of a Gazetted Officer, or a Magistrate. She, however, reposed confidence in D.S. Kalsi, Superintendent Customs, a Gazetted Officer. Option memo Ex.PA was reduced into writing. It is further proved, from the statement of Satish Kumar Sharma, Inspector Customs,PW-1 and D.S. Kalsi, Superintendent Customs, PW-2, that, thereafter, Parminder Kaur, Lady Inspector Customs, PW- 4, was called and she was directed to conduct the search of the accused. It was she, who conducted the personal search of the accused, as a result whereof from black cloth, tied around her right thigh, a packet, containing 280 grams, white powder, from the cloth tied around her left thigh, a packet of 245 grams, white powder, and a small packet containing 35 grams brown powder, were recovered. Under these circumstances, it was proved, from the evidence of both these witnesses, that the personal search of the accused, was conducted, by Parminder Kaur, Inspector Customs, PW-4, and not by D.S. Kalsi, Superintendent Customs. There is, therefore, no discrepancy, as to who conducted the personal search of the accused. Hence, there was strict compliance with the provisions of Section 50 of the Act. There was no violation of the provisions of Section 50 of the Act. In this view of the matter, the question of vitiation Crl. Appeal No. 1386-SB of 2001 --9-- of conviction and sentence, did not at all arise. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that though two independent witnesses, in the name of Surinder Kaur and Raj Kaur, were joined by the Investigating Officer, at the time of the alleged search and seizure, yet they were not examined, as a result whereof, it could be said that the complainant withheld the best evidence, in its possession. He further submitted that an adverse inference, could be drawn, that had they been examined, they would not have supported the case of the complainant. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Surinder Kaur and Raj Kaur, independent witnesses, were joined, by the Investigating Officer, yet they were given up, as won over, by the accused, by the Counsel for the complainant,vide separate statement on 04.09.2001. It means that the Counsel for the complainant exercised the discretion, vested in him, in giving up Surinder Kaur and Raj Kaur, independent witnesses, as won over by the accused, in a bona-fide manner. It could not be said that the discretion exercised by the Counsel for the complainant, in Crl. Appeal No. 1386-SB of 2001 --10-- giving up Surinder Kaur and Raj Kaur, independent witnesses, as won over by the accused, was, in any way, arbitrary or capricious. The evidence, produced by the complainant, is creditworthy, and inspires confidence, in the mind of the Court. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only 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 Vs. State of Punjab 1983 Criminal Law Journal, 1218, a Division Bench of this Court, Crl. Appeal No. 1386-SB of 2001 --11-- held that where the independent witness, was won over by the accused, and only the officials witnesses, were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that no cogent and convincing evidence was produced by the complainant, to prove that the sample parcels were not tampered with until the same reached the office of the Laboratory. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that the sample parcels and the sample seals were not deposited by Satish Kumar Sharma, Inspector Customs, Seizing Officer, in the Malkhana till one part of the same ( sample ) was despatched to the Laboratory, in itself, did not go to prove that the link evidence, in this case, was incomplete. Even the factum that Jitender Yadav, Inspector Customs, PW-3, who had taken the samples and the sample seal to the office of the Laboratory, kept the same with him Crl. Appeal No. 1386-SB of 2001 --12-- from 04.06.2001 to 06.06.2001, also did not, in any way, prove that there was any tampering with the sample parcels, until the same reached the office of the Laboratory. The evidence of Satish Kumar Sharma, Inspector Customs, PW1, D.S. Kalsi, Superintendent Customs, PW2, and Jitender Yadav, Inspector Customs, PW-3, as also the report of the Laboratory, clearly proved that none tampered with the samples until the same reached the office of the Laboratory. There was no reason, on their part, to falsely implicate the accused, in the instant case. The Court cannot act, merely on the basis of conjectures and surmises, that the possibility of tampering with the sample parcels, could not be ruled out. The Court is required to act, on the basis of the evidence produced, on behalf of the complainant. Once from the evidence , produced by the complainant, it was proved that none tampered with the sample parcels, until the same were deposited in the office of the Laboratory, no possibility to the contrary, could be entertained. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Crl. Appeal No. 1386-SB of 2001 --13-- 14. It was next submitted by the Counsel for the appellant, that the confessional statements of the appellant under Section 67 of the Act were not voluntary, but were the result of coercion and undue influence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The confessional statements under Section 67 of the Act, recorded by a Customs Officer, are admissible, as he is not a Police Officer, within the meaning of Section 25 of the Indian Evidence Act. The voluntary statements of the appellant, were recorded on 02.06.2001 and 03.06.2001. The appellant stated, therein, that the same were voluntary, without any fear, duress, and coercion. She also admitted that the same were read over and explained to her, in English , which she understood. Thereafter, she signed the same. The complaint, in this case was filed on 31.08.2001. She had many occasions, to complain that her statements were the result of coercion and undue influences, before the complaint was filed, but she did not do so. For the first time, in her statement, recorded under Section 313 Cr.P.C., it was stated by her, that the confessional statements under Section 67 of the Act, were not voluntary. The mere fact that she took up the plea that her statements Crl. Appeal No. 1386-SB of 2001 --14-- were not voluntary, but were the result of coercion, duress and undue influence, at a belated stage, in itself, clearly showed that the same are genuine. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. 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, except the modification, as under. The appeal qua the substantive sentence and the sentence awarded, in default of payment of fine, shall abate as the appellant has since demised. 17. For the reasons recorded, hereinbefore, the appeal is partly accepted. The judgment of conviction and the order of imposition of sentence of fine, are upheld. The appeal qua the substantive sentence and the sentence awarded in default of payment of fine, shall abate. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, for the recovery of amount of fine, from the Crl. Appeal No. 1386-SB of 2001 --15-- estate of the deceased, if any, inherited by her legal representatives, within two months, from the date of receipt of a certified copy of the same. 18. The District & Sessions Judge, Amritsar, is also directed to ensure that the directions, referred to above, are complied with, within the time-frame, and the compliance reports are sent immediately, thereafter, to this Court. (SHAM SUNDER) JUDGE December 23, 2008 dinesh