Crl. Appeal No. 573-DB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 573-DB of 2000. DECIDED ON : 16.5.2008 1.Gul Mohamad son of Azimulah. 2. Said Fariad son of Said Faroz. Appellants. VERSUS Inspector Custom, Raja Sansi Air Post, Custom Division, Amritsar. Respondent. CORAM : HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE JORA SINGH Present: Mr. D.N.Ganeriwala,Advocate, and Mr.K.D.S.Hooda, Advocate, for the appellants. Mr. V.K.Jindal,Additional Advocate General, Punjab, for the respondent. JORA SINGH,J. Gul Mohamad son of Azimulah and Said Fariad son of Said Faroz filed this appeal through jail. Superintendent to challenge the judgment and order of sentence dated 8.3.2000 in Sessions Case No. 106 of 1998 rendered by Special Judge ,Armitsar. Vide this impugned judgment, appellants-accused were convicted under Sections 22, 23 and 29 of the Narcotic Durgs and Psychotropic Substances Act, 1985 ( hereinafter referred to as “the Act”) and were sentenced as under:- Crl. Appeal No. 573-DB of 2000 -2- Gul Mohamad Under Section 22 of the Act:- “Rigorous imprisonment for 15 years and to pay a fine of rs.1,50,000/-. In default of payment of fine, to undergo further R.I., for one year.” Under Section 23 of the Act:- “Rigorous imprisonment for 15 years and to pay a fine of rs.1,50,000/-. In default of payment of fine, to undergo further R.I., for one year”. Said Farid Under Section 23 of the Act:- “Rigorous imprisonment for 15 years and to pay a fine of rs.1,50,000/-. In default of payment of fine, to undergo further R.I., for one year.” Under Section 29 of the Act:- “Rigorous imprisonment for 15 years and to pay a fine of rs.1,50,000/-. In default of payment of fine, to undergo further R.I., for one year”. All the sentences were ordered to run concurrently. The period of detention already undergone during trial was ordered to be set off against substantive sentences awarded to each of the accused. Prosecution story, in brief, is that Inspector Customs Raja Sansi Airport, Custom Division, Amritsar filed complaint under Section 21, 22, 23 and 29 of the Act relating to seizure of 9.064 Kg., heroin on the allegation that on 23.12.1977 accused Gul Mohamad had alighted from Ariana Crl. Appeal No. 573-DB of 2000 -3- Afgan Air Lines Air Lines at Raja Sansi Air Port from flight No. FG 304D. After completion of immigration formalities, accused Gul Mohamad came for customs Counter. Ashok Kumar Inspector Customs directed Gul Mohamad to declare the goods carried by him whether he was carrying any contraband articles then Gul Mohamad replied in negative. Luggage of Gur Mohamad was examined by Ashok Kumar Inspector Customs. 18 tiffon boxes packed in three card board cartoons were found. The bottom base of the tiffon boxes was heavier and the accused became nervous. Mr. K.K.Gupta, Superintendent Customs disclosed his identity to the accused. Offer was given as to whether the accused wants to be searched before a Magistrate or a Gazetted Officer. Consent memo Ex.PA was prepared, signed by the accused and attested by Mr. K.K.Gupta and Mr. Ashok Kumar. Copy of consent memo was given to the accused. Balwinder Singh and Tarlochan Singh were joined independent witnesses and in their presence, tiffon boxes were broke opened. Polythene bags containing white powder i.e. heroin were recovered from the tiffon boxes. With the help of drug testing kit, the white powder was tested and found to be heroin. Net weight of the heroin was found to be 9.064 Kgs. Serial No. 1 to 18 was given to all the packets. Two lots of packets were prepared with lot No. 1 to 10 and another lot with lot No. 11 to 18. Two representatives samples of five grams each were drawn from each lot and the samples were marked as L-I to L-II. Representatives of Crl. Appeal No. 573-DB of 2000 -4- samples marked as L-I to L-II were put in separate two envelopes and both the envelopes were sealed with seal No. 122 of Customs Division, Amritsar. Signatures of the accused were obtained on the samples. Remaining heroin of 18 bags was put in one cloth bag and sealed with seal No. 122 of Customs Division, Amritsar. Cloth containing remaining heroin was put in a tin box and was sealed with the same seal No. 122 of the Custom Department. Broken tiffon boxes were also sealed in three gunny bags with the seal No. 122 of the Custom Department. Test memo Ex.PB and weighment sheet Ex.PC was also prepared. Seal after use was returned to the competent authority. Panchnama Ex.PD and recovery-cum-seizure memo Ex.PE were prepared which was signed by the independent witnesses and Mr. K.K.Gupta, Customs Officer. All the documents were supplied to the accused. Special Report under Section 57 of the Act was sent to the senior officers. Gul Mohamad made voluntarily statement Ex.PH and PJ on 24.12.1997 and 26.12.1997 admitting his involvement in smuggling of herion. Accused Gul Mohamad was interrogated on 24.12.1997. Accused disclosed that Said Farid was also accompanying him to help in smuggling herion. Said Fariad had also travelled in the same flight with Afgan Passport No. OR-1823392 with fake visa. Said Gul Mohamad was detained by the immigration authority. Mr. K.K.Gupta, Superintendent Customs after disclosing his identity gave offer to Said Fariad whether he wanted to be searched Crl. Appeal No. 573-DB of 2000 -5- before a Gazetted Officer or a Magistrate. Said Fariad opted to be searched before Gazetted Officer. Consent memo was prepared, signed by the accused and attested by Ashok Kumar Seizing Officer and Superintendent Customs Shri K.K.Gupta. Said Fariad made voluntarily statements on 24.12.1997 and 26.12.1997 admitting that Gul Mohamad was to be taken to Delhi alongwith his baggage to hand over the said consignment of heroin to Badshah Khan in Hotel Samir, Bill Imaran, New Delhi against payment of Rs. 15,000/-. Both the accused alongwith the case property were produced before the Chief Judicial Magistrate, Amritsar on 25.12.1997 after withdrawing the case property from incharge, Malkhana and after producing the case property before the Chief Judicial Magistrate, Amritsar, re-deposited the case property with the incharge, Malkhana. On 30.12.1997, the representatives samples were deposited with Central Revenue Control Laboratory, New Delhi through Rashid Ahraf Mani. As per report of Laboratory samples were found to be “Diacetyl morphine” (heroin) with contents 46.9 and 44.8 respectively. Accused Gul Mohamad was charged under Sections 22 and 23 of the Act whereas accused Said Fariad was charged under Sections 23 and 29 of the Act. The accused pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as 4 witnesses. Ashok Kumar, Inspector Customs complainant Crl. Appeal No. 573-DB of 2000 -6- PW1. PW-2 Shri K.K. Gupta, Superintendent Customs Department. PW3 Mr. K.K.Sharma, Inspector Customs are the main witnesses in whose presence recovery was effected. PW4 Rashid Ashraf Wani, Inspector Custom had deposited sample in the laboratory. After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations, levelled against them. Accused denied all the allegations and claimed to be innocent. Defence version of Gul Mohamad accused was that he was falsely implicated in this case. No recovery was effected from him. Defence version of Said Fariad accused was that he came to India for treatment on 23.12.1997. Passport was defective. He was detained by immigration authority. He was handed over to custom authority on 24.12.1997 by the immigration authorities and was falsely implicated. Opportunity was given to lead defence and in defence, accused examined Varinder Kumar-DW1. Learned counsel for the appellants-accused argued that mandatory provisions of the Act were not complied with. Section 50 of the Act is mandatory. Non-compliance of Section 50 of the Act is fatal. Possibility of tampering of the case property can not be ruled out because there was delay in depositing the samples in the office of Central Revenue Control Laboratory, New Delhi. Two independent witnesses were joined but they were not examined. Seal after use was Crl. Appeal No. 573-DB of 2000 -7- not handed over to the independent witnesses. Evidence on the file was not properly appreciated. Mr.V.K.Jindal, Additional Senior Advocate General, Punjab argued that recovery was from the tiffon boxes, Section 50 of the Act is not applicable. Contraband was not recovered from the person of the appellants-accused. Recovery was effected on 23.12.1997 at about 9 P.M. Case property was deposited with the incharge malkhana. On the next day, after withdrawing the case property from the malkhana, case property alongwith the accused was produced before the Chief Judicial Magistrate,Amritsar. Samples were deposited with Central Revenue Control Laboratory, New Delhi on 30.12.1997. Delay in depositing the samples is not fatal. Appellants-accused were not prejudiced. Two independent witnesses were joined but they were not examined as won over by the appellants-accused. Evidence on the file was rightly scrutinized. First contention of the defence counsel for the appellants-accused was that there was non-compliance of Section 50 of the Act but contention of the defence counsel is not correct one. Appellants-accused had alighted from Ariana Afgan Air Lines at RajaSansi Air Port . Flight No. FG 304-D. Gul Mohamad appellant-accused was carrying luggage and was directed to declare the goods carried by him. Whether he was carrying any contraband. Gul Mohamad replied in negative. Luggage was checked and the luggage was found containing 18 tiffon boxes packed in three card board Crl. Appeal No. 573-DB of 2000 -8- cartoons. Accused became nervous when bottom base of the tiffon boxes were found heavier. Mr. K.K.Gupta, Superintendent Customs disclosed his identity and gave offer to the accused as to whether appellants-accused wants to be searched before any Gazetted Officer or Magistrate. Consent memo Ex.PA was prepared. Gul Mohamad appellant-accused had opted to be searched before a Gazetted Officer. After joining two independent witnesses heroin was recovered from the tiffon boxes. Recovery was not effected from the person of the accused. In State of Punjab Vs. Makhan Chand 2004(3) Supreme Court Cases 453, it was held that accused was found carrying tin box. Hon'ble Apex Court held that Section 50 of the Act is not applicable. In Madan Lal and another Vs. State of Himachal Pradesh, 2004(2) Crl.C.C. 36, held that recovery of contraband on search of vehicle, then held that Section 50 is not applicable. Section 50 only applies in case of a personal search of a person. In Roop Singh Vs. State of Punjab, 1996 (1) R.C.R.146 held that accused given option to be searched before Gazetted Officer or Magistrate- No requirement that offer must be reduced in writing. In the present case, on search of luggage , Ashok Kumar, Inspector Customs suspected that there is some incriminating article in the tiffon box. Mr. K.K.Gupta, Superintendent Customs gave offer to the appellants-accused under section 50 of the Act. But Gul Mohamad appellant- Crl. Appeal No. 573-DB of 2000 -9- accused opted to be searched before the Gazetted Officer. Memo Ex.PA was prepared and signed by appellant-accused Gul Mohamad. When Section 50 of the Act was not applicable then on this ground. Judgment of the trial Court is not to be set aside. Two independent witnesses were with the party namely Balwinder Singh and Tarlochan Singh in their presence recovery was effected. But both the witnesses were not examined as won over by the appellants-accused. Seal was not handed over to the independent witnesses. With the non-appearance of independent witnesses or failure to hand over the seal to the independent witnesses, no prejudice was caused to the appellants-accused. Roop Singh's case (Supra) held that independent witness joined but given up has won over. No adverse inference to be withdrawn. Witnesses being human beings are quite exposed and vulnerable to human feelings of yielding, brow-beating threats etc.,. Case based on official witnesses. Nothing to opine that police officers was malicious and interested in falsely framing upon the case. On 23,12,1997 at 9 P.M. Recovery was effected. On the next day, case property was deposited with the Incharge Malkhana, Customs House, Amritsar. On 25.121997 case property was withdrawn from the malkhana by Ashok Kumar, Inspector Customs and was produced before the Chief Judicial Magistrate, Amritsar. After production of case property before the Chief Judicial Magistrate, Amritsar, case Crl. Appeal No. 573-DB of 2000 -10- property was redeposited with the incharge malkhana. On 30.12.1997, sample parcel was handed over to PW4 Rashid Ashraf Wani, Inspector for depositing in the laboratory. In Piara Singh Vs. The State of Punjab, 1982 P.L.R.244, Hon'ble Full Bench of the Punjab and Haryana High Court held that seal used by the police Officer neither a statutory requirement nor a precedential mandate for handing over the seal used to a third person- Even if it has been so handed over then non-production of such a witness cannot by itself effect the merits of the trial. In Roop Singh's case (Supra), case was under the Excise Act but the question was whether story is to be rejected if independent witness is not produced by the prosecution. Secondly, seal was not handed over to the independent witness. In G.Srinivas Goud Vs. State of A.P. (2005) 8 Supreme Court cases 183 held that non association of independent witnesses- Plea in respect of- raised to throw doubt upon the recovery of the contraband drug- held on facts, was not sustainable. Allegation of the appellants-accused that they were falsely implicated and if independent witnesses were not present at the time of recovery then any of one could be produced in defence. Failure to hand over seal to independent witness and with the non-examination of independent witnesses, prosecution story is not to be doubted. Last contention of the defence counsel was that Crl. Appeal No. 573-DB of 2000 -11- Said Farid appellant-accused's passport was defective. He was detained by the immigration authority. Later on, implicated in this false case. DW-1 Varinder Kumar, Immigration Clerk, as per record deposed that Said Fariad came to immigration, Rajasahsi, Airport on 23.12.1997. Visa was found fake. On 24.12.1997 accused was handed over to custom authority. On cross-examination, Varinder Kumsar admitted that he did not open the briefcase carried by the accused. Appellant-accused was handed over to the custom authorities vide request Ex.PA/1. According to the prosecution story, Gul Mohamad appellant-accused made voluntarily statement Ex.PH dated 24.12.1997 and Ex.PJ dated 26.12.1997. During investigation of Gul Mohamad on 24.12.1997, custom authorities came to know that Said Fariad came to India on the same flight No. FG 304-D alongwith Gul Mohmad. Visa was found fake. Said Fariad was detained by immigration authorities. On 24.12.1997 custody of Said Farid was taken over from the immigration authorities. Offer was given to Said Fariad as to whether he wants to be searched before a Gazetted Officer or Magistrate but Said Fariad had opted to be searched before Gazetted Officer. Consent memo was prepared, signed by the accused and attested by Ashok Kumar and Mr. K.K.Gupta. Statement of DW1 Varinder Kumar instead of any help to the appellants-accused rather supports the prosecution story. In Naresh J. Sukhawani Vs. Union of India, 1996(83) Crl. Appeal No. 573-DB of 2000 -12- E.L.T.258 (S.C.) held that statement recorded under Section 108 of the Customs Act, 1962 cannot be equated with Section 161 Cr.P.C. Statement under Section 108 of the Customs Act is material piece of evidence. In Raj Kumar Karwal Vs. Union of India and others, 1990(1) C.R.L. 625 held that confessional statement made under Section 53 of the Act is admissible in evidence and is not hit by Section 25 of the Indian Evidence Act. Ex.PL and Ex.PM are the statements suffered by Said Fariad appellant-accused. Report under Section 57 of the Act was sent. As per defence witness and statement of Said Farid under Section 313 Cr.P.C., prosecution story inspires confidence. Heroin worth crores was recovered. Till today, no complaint to any authority regarding false implication. Officers of the custom department had no enmity with the appellants- accused. So, no question to disbelieve the officers witnesses. Learned Special Judge, Amritsar after appreciating evidence on the file correctly opined that the appellants-accused had committed the offence punishable under different Sections of the Act. No illegality while rendering the impugned judgment. No other contention was put forward. The above discussion shows that there is no infirmity or illegality in the impugned judgment of the trial Crl. Appeal No. 573-DB of 2000 -13- Court and the same is upheld. The appeal being without merit, is dismissed. ( JORA SINGH ) JUDGE ( J.S. KHEHAR ) 16.5.2008 JUDGE Anoop