Against the judgment of conviction and order of sentenced dated 19.12.2007 and 24.12.2007 passed by Additional Sessions Judge-cum-Special Judge, N.D.P.S.Act, Kishanganj in Special Case No.20 of 2005 CRIMINAL APPEAL No.136 of 2008 JONY SHEIKH--------------------------------------------Appellant Versus THE STATE OF BIHAR---------------------------------Respondent With CR. APP (DB) No.148 of 2008 BARJAHAN SHEIKH-------------------------------------------Appellant Versus THE STATE OF BIHAR-----------------------------------------Respondent With CR. APP (DB) No.151 of 2008 NASIR HUSSAIN------------------------------------------------Appellant Versus STATE OF BIHAR-----------------------------------------------Respondent ------- For the appellants:- Sri Bhola Prasad, Advocate Sri Swapni Kumar Singh,Advocate Sri Tarun Prasad Mandal, Advocate For the Union of India:- Sri Sajid Salim Khan, Advocate P R E S E N T THE HON’BLE SMT. JUSTICE MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Mridula Mishra & Dharnidhar Jha,JJ. The three appeals arise out of judgment dated 19.12.2007 passed by the learned Additional Sessions Judge- cum-Special Judge, N.D.P.S.Act, Kishanganj in Special Case No.20 of 2005/Tr.No.2 of 2005 by which the three appellants were found guilty of committing offences under Section 20(b)(ii)of the NDPS Act 20(b)(c)of the NDPS Act. Each of the 2 three appellants were directed to undergo rigorous imprisonment for 15 years. Appellant Barjahan Sheikh was also directed to pay a fine of Rs.2,00,000/- or to suffer rigorous imprisonment for one year in case, he defaulted in making payment of the fine. The two appellants Jony Sheikh and Nasir Hussain were directed to pay a fine of Rs.1,00,000/- each else to suffer rigorous imprisonment of six months each. The three appeals have been preferred by the three appellants for challenging the orders of conviction and the sentence dated 19.12.2007 and 24.12.2007 respectively. 2. The complaint petition filed by P.W.4 Salimullah who at the relevant time was Inspector, Customs(Preventive),Kishanganj in which he stated that while checking for the prevention of the smuggling of goods on 26.11.2005, the checking party which was posted at Khagra Gumti at Kishanganj, found truck bearing registration no.AS OIL-3192 coming from Siliguri side. The truck was stopped and it was found that three persons were sitting therein who divulged their identifications by giving their names and full addresses. On enquiry by the complainant and his companions, the occupants of the truck pointed out that the vehicle was loaded with plastic scraps and was being taken from Assam to Murshidabad in West Bengal. 3 3. The complainant alleged that he and others got suspicious as easily available cheaper quality of plastic could never be transported from such a distant place like Assam to Murshidabad. The members of the preventive team expressed their desire to carry out a checking of the truck and they gave an option to the occupants to get the vehicle checked in presence of a Magistrate or any gazetted officer, but the same was declined by them and offered them to check the vehicle. On account of the stoppage of the vehicle many persons assembled there and on account of the request made by the occupants as also for safety reasons, the vehicle was brought to the Customs Office, Kishanganj which was located at a very short distance from Khagra Railway crossing. However, while the truck was being brought to the Customs Office, it developed some snag which was removed by calling a mechanic. When the truck was likely to reach the Customs Office, Kishanganj, the driver of the truck attempted to run away from it, but was chased and captured by the members of the preventive team and, thus, the truck was brought to the premises of the Customs Office, Kishanganj. 4. Two independent witnesses were called by the complainant and others from the nearby place for cooperating by remaining present as witnesses so that the truck could be 4 searched. The consignment was unloaded and, lastly, it was found that amidst the bags containing plastic scraps nine other bags containing ganja had been kept at the bottom of the truck. The nine bags were recovered and their contents were weighed and it was found that ganja contained in them weighed 511 K.G. which could be valued at Rs.10,22,000/-. The bags of the plastic scrap as also the bags containing ganja were seized preparing seizure memo Ext-2. The Panchnama was also prepared in presence of the independent witnesses and the occupants of the truck which was also signed by the witnesses and the three appellants. 5. The appellants, thereafter gave their voluntary statements in presence of independent witnesses accepting their guilt after being interrogated by Superintendent, Customs(P), Kishanganj, i.e., P.W.5 Binay Kumar Jha in presence witnesses and other officers. Those confessional statements were also signed by independent persons as witnesses as also the three appellants. Samples were taken out of the seized ganja and the same was sent for chemical examination and, ultimately, it was found on chemical analysis of the sample that the seized article was ganja within the meaning of NDPS Act, 1985. 6. The three appellants were arrested on the very day. The facts were reported to the proper authorities and after 5 duly obtaining orders of the concerned officials, the complaint petition was filed. 7. The learned Special Judge appears taking cognizance of the offence and thereafter by framing charges under Section 20(b)(i)of the NDPS Act proceeded with the trial. 8. During the course of the trial the appellants set up a plea of innocence by suggesting to different witnesses that the ganja was not seized from their possession as may appear from the evidence of P.W.1 in paragraph-7. The appellants further challenged the prosecution claim that they had made their confessional statements accepting the commission of the offence which suggestion was also given to P.W.1 in paragraph- 6 of his evidence. 9. The prosecution examined a total number of eight witnesses in support of the charges. P.W.1 Ashim Kumar Mandal was another Inspector with the complainant P.W.4 Salimullah who was also one of the members of the party which had stopped the vehicle and conducted the search of the same in which the nine bags of ganja were recovered. P.W.2 Narendra Prasad Singh was a Hawaldar in the Customs Department and he has supported the evidence of P.Ws.1 and 4 on all material particulars as regards the prosecution story. He has stated in his evidence that the contents of the bags, i.e., the recovered 6 ganja, was weighted and it was found 511 K.G. in total weight. P.W.3 Ram Babu Rai was yet another Hawaldar of the same department and he also supported the prosecution case as regards the materials facts and the proof of the charges. He has also stated that the appellants had made confessional statements voluntarily before the Inspector, i.e., P.W.4 and that was reduced into writing by him at the direction of P.W.4 as narrated by each of the appellants and after having recorded the confessional statement of the three appellants, he read the contents thereof over to each of the appellants who finding the same correctly recorded signed their respective statements. This witness was cross-examined at length but as regards the search of the vehicle and recovery of ganja weighing 511 K.G., the witness appears standing the test of cross-examination. P.W.4 Salimullah is the complainant of the case and he has supported his statements contained in the complaint petition of Special Case No.20 of 2005. He has given evidence in detail as to how the truck was brought to his office and how the driver in that course attempted to run away from there, but was captured on chase and how the search was made of the vehicle in presence of the witnesses to recover the nine bags of ganja weighing 511 K.G. in total. P.W.5 Binay Kumar Jha was the Superintendent of Customs on the relevant date, i.e., 26.11.2005 and he has 7 also supported the stoppage of the vehicle and finding three persons sitting therein. P.W.5 Binay Kumar Jha has stated that the vehicle was found carrying a consignment of plastic scraps and it was found by appellant Barjahan Sheikh who told him that the same was being carried from Assam to Murshidasbad. On ordering search by P.W.5, his accompanying officers checked the vehicle after bringing it to their office and lastly it was found that beneath the bags of plastic scraps, nine bags of ganja had been concealed. The same were seized in presence of the witnesses and the contents thereof were sampled. P.W.6 Bhutto Sao was a constable of the Customs Department and he also appears supporting the facts of the prosecution case as regards its material part. P.W.7 Raghubans Kumar Singh is yet another constable of the department and he also appears supporting the material facts of the prosecution case. P.W.8 Shankar Rai is an independent person who was called along with Shiv Prasad Sah(not examined)to witness the whole process of the search and seizure as also of preparing Panchnama, besides the statements which were made allegedly by the three appellants. 10. It was mainly contended by Sri Bhola Prasad, learned counsel appearing for the three appellants that there was conflict in the evidence of P.Ws.1 and 4 as regards the 8 taking out the sample of the contraband article from bags which were allegedly seized on account of containing contraband article. It was pointed out to us that P.W.1 Ashim Kumar Mandal has stated that the samples were taken from each of the nine bags and those were mixed up together so as to finally sealing the sampled article for being sent to the chemical analyst. But P.W.4 Salimullah, who had investigated the case and who was supposed to have taken out the sample has stated that the sample was taken out only from four bags. It was next contended in the above connection that the quantity of sample which was taken out by P.W.4 as per his own evidence was about 20-25 grams which was taken out from each of the four bags but P.W.1 Ashim Kumar Mandal has stated that it could be some where around 15 grams which were taken out from each of the nine bags. The contention was that Ext-6 the report of the chemical analyst received from the GOVERNMENT OPIUM AND ALKALOID WORKS, GHAZIPUR(U.P.) indicates as if the packet which was received by the Laboratory was containing 36.580 grams of ganja and after using the part of the sample in chemically analyzing it, 20 grams of it remained which was returned to the Customs Department. It was contended that this court under similar circumstances in the case of Yogendra Singh Vrs. Union of India reported in 2007(Suppl)PLJR 950 9 has given benefit of doubt to the appellant in that case. The learned counsel further cited before us, in the above connection, yet another decision of this court in Lala Tiwary Vrs. Union of India 2007 PLJR 379 on the same point of variance in weight as narrated by the witnesses as regards the article sampled and the weight of the sampled article which was pointed out by the Laboratory which received the packet containing the sample. It was contended that if the evidence of P.Ws.1 and 4 could be considered, it could be found that the weight could be running in many 100 grams of ganja, but the Laboratory received only 36.580 grams of the substance and that creates a doubt as to how the weight was varying from that which could be deduced from the oral evidence of the witnesses. It was next contended that the confessional statement has been utilized by the learned trial Judge in support of the charges as also for reinforcing the presumption of guilt which could be arising out of the evidence of witnesses, but while examining the three appellants under Section 313 Cr.P.C. that particular evidence was not put to any of the three appellants and as such the judgment gets vitiated. Similar argument was placed before us as regards the evidence of Panchanama. 11. On perusal of the evidence of the eight witnesses which is available to us, we are of the view that there is no 10 doubt in it that a truck which was bearing registration no. AS OIL-3192 was intercepted by the preventive team led by P.W.5 Binay Kumar Jha, the Superintendent Customs(Preventive), Kishanganj and further that the team consisted of the witnesses who have been examined in the trial court. We also have no doubt in our mind that the truck was found carrying a consignment of plastic scraps and it was destined to Murshidabad after having originated somewhere in Assam. The three appellants might have suggested to the witnesses that they were innocent or that no ganja was recovered from any of them, but no where in the whole corpus of the evidence, we could be shown any fact which could be said to be a resistance to the prosecution claim that they were sitting in the very vehicle and were arrested out of it by P.W.4 and others as claimed by them. It is true that their confessional statements have been used by the learned trial Judge as also the evidence of Panchanama has also been used, but because those evidences were not put to any of the three appellants during their questioning under Section 313 Cr.P.C., for eliciting their explanations to them, we have thought it proper to exclude those evidences for considering the merit of the conviction. If the trial court was desirous of placing any reliance on that part of the evidence for sustaining the proof of the charges, then it was 11 desirable that it ought to have given an opportunity to the three appellants to explain the above evidence which might have appeared against them. It was not an ordinary confession which we generally find in criminal matters being brought before court which is shown recorded by the police officers. It was a confession which was recorded by Customs Officials who did not have the powers to investigate which are vested in police officers under Section 154 of the Cr.P.C. and as such any confession which is shown to be made to them becomes admissible in evidence as the same is not covered by the provisions of Sections 24, 25, etc of the Evidence Act. A confession, if it is used in evidence could go against the accused without allowing him to challenge it through the normal mode of trial, i.e., by cross-examining a witness. A witness who recorded the evidence might have been cross-examined but the contents of confession could never be challenge by an accused which is recorded by the mode and in the manner as has been presently done. This is the reason that we eliminate that part of the evidence from our consideration. 12. The evidence further points out that there was an attempt by the driver not only to run away, but also not to allow the truck to be taken to the office of the Customs Department. P.W.1 has said that the truck was made defective 12 and when the mechanic was brought he mended it and pointed out that it was an intentional defect created by the appellant- driver. This statement has come from P.W.1 in paragraph-2 of his evidence. Further the witness has also stated that the truck went defective on way to the Customs Office and during that course, probably, appellant Jony Sheikh who was the driver of the truck attempted to run away from it. Almost all the witnesses have stated that he was chased and captured and thereafter he drove the truck into the premises of the Customs Office. As regards the search and seizure of the consignment of the truck all witnesses including P.W.8 Shankar Rai have stated that the consignment was unloaded and, lastly, it was found out that nine bags were lying at the bottom of the truck which were ultimately found containing ganja. These facts, to our satisfaction, appear established by the evidence of the prosecution witnesses. Even after we have eliminated the evidence of Panchanama and confession of three appellants evidence, we find sufficient materials to hold that the material facts of the prosecution case, as we have just pointed out, were satisfactorily established by evidence which to us appear quite acceptable. 13. The witnesses were the Custom personnel which included one of the head of the departments, namely the 13 Customs Superintendent. They did not have any axe to grind against any of the three appellants who are the residents of distant places. They had never had any reason to complain that the witnesses could be having grudge against them and as such were coming forward to depose against them or at best the Superintendent of Customs will not be stooping so low as to falsely implicating the three innocent appellants. These circumstances have convinced us and persuaded us to act upon the evidence by accepting them. 14. As regards the major contention of the learned counsel appearing for the appellants, after having gone through the evidence of P.W.1 and 4 what we find is that the evidence on the weight of the sampled article could not be as clinching as the learned counsel was making it out before us. In the cases cited before us, i.e., 2007 PLJR 379 and 2007(Suppl)PLJR 950 there was multiple number of accused and from each of the accused, there were recoveries of charas. Samples were taken out of the substance recovered from each of the accused and thereafter those were mixed up to create final sample. It was a good ground, in our opinion also, to argue that each of the four accused persons could not be said to be carrying the real substance in that fact situation. This court was justified in acquitting the appellants of the two cases by giving benefit of 14 doubt. Not only that the evidence in those two cases on the weight of the sample appears coming correctly. Here before us, the weight of sampled articles appear in approximation. P.W.1 has stated that it was supposedly 50 grams from each of the bags that ganja was taken out for being mixed up together so as to preparing the final sample. There is some aberration in the evidence of P.W.4 as regards the number of bags from which ganja was taken out. But we do not value much that aberration. P.W.4 has stated that it was from four bags only that about 20- 25 grams of ganja was taken out for making three sampled packets out of which one was sent to the chemical analyst. The evidence of P.W.1 in paragraph-5 of last line is also that one sample was sent to the chemical example. P.W.4 has also stated that only one sample out of the three was sent for chemical analysis. During the cross-examination of witnesses like P.Ws.1 and 4 or any other witnesses, no specific weight of the officially sampled substance was taken so that we could have before us sufficient material to examine the contention of the learned counsel that there was variance in weight of the article which was finally sampled and the packet which was received by the Chemical Analyst. We have to, as such, focus back on the report of the chemical analyst which indicates that one sealed envelop of sample was received from the Superintendent of Customs(P), 15 Circle, Kishanganj through his letter no.C.No.VIII(10)39/NDPS/KNE/05-06/688/27.11.05 which packet was weighing 36.580 grams in the form of dried flowering & fruiting tops along with dried greenish leaves & stem pieces. It was the real weight. The sample was taken from each of the nine bags as appears from the evidence of P.W.1 and were mixed up together. We do not find as to what was the weight of the sampled article at the time of sampling which was received by the chemical analysis and which could be after mixing up the samples taken out of each of the nine bags. We do not see in absence of any definite evidence on weight on record as regards the sample made by the Customs Department, that it could be a ground for rejecting the prosecution story. The sample on chemical analysis as may appear from Annexure-6 was found to be ganja within the meaning of NDPS Act, 1985. 15. While we were perusing the record of the present case we came across from the records of Section 313 statements the fact that appellant Jony Sheikh was a driver, appellant Nasir Hussain was the cleaner of the vehicle and that appellant Barjahan Sheikh was the owner of the scrap, were duly put to each of them and their explanation was elicited on their status as per the prosecution case. They did not say that they were not 16 the driver, cleaner or the owner of the plastic scrap. The bags of plastic scrap was loaded on truck also does not appear disputed by any of the three appellants. During the whole trial they only denied the recovery of the ganja from the truck. We have already pointed out that it has been established by the prosecution evidence. The manner of concealment could be found out from the evidence of witnesses. It could be traced out only when all bags containing plastic scraps were unloaded from the truck. The nine bags were lying on the bottom of the vehicle. The concealment by placing the bags at the bottom could have never been possible without the conscious knowledge of the three appellants. As such, we could draw an inference that it was within the knowledge of the three appellants that the nine bags containing contraband ganja were placed at the bottom of the consignment so as to transporting it from one place to another. The evidence presently discussed also raises an inference that the bags were constructively within the possession of the three appellants. The quantity of the contraband article as per the evidence of the witnesses as also as per the seizure memo Ext-2 was 511 K.G. This was hugely a commercial quantity. The conviction of the three appellants appears properly recorded. There is some defect in order of conviction dated 19.12.2007 as may appear from paragraph-16 of the judgment but that defect 17 appears erased on account of the sentencing order which is contained in paragraph-18 of the judgment which is dated 24.12.2007. The propensity of the offence which was committed by the three appellants was such as it was properly inviting the sentence which was passed against the three appellants. 16. In the result, we find no merit in the three appeals. They are dismissed. Patna High Court, Dated the 16th of September, 2010, Brajesh Kumar/AFR ( Mridula Mishra,J. ) ( Dharnidhar Jha, J.)