Crl.Misc.No.M-18135 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No. M-18135 of 2009 Date of decision: 6.10.2009 Raminder Singh ... Petitioner versus State of Punjab and another ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Kanwaljit Singh, Sr.Advocate, with Mr.Harvinder Singh, Advocate, for the petitioner. Mr.P.S.Sidhu, Addl.AG, Punjab, for respondent No.1. Mr.D.D.Sharma, Advocate, for respondent No.2. ... JORA SINGH, J. Raminder Singh filed this petition under Section 439 Cr.P.C. for grant of regular bail in case DRI F.No.855(5) ASR/2008 and complaint under Sections 21/23/25/27-A/28/29 of the NDPS Act, 1985. Intelligence Officer, Directorate of Revenue Intelligence, filed complaint against the petitioner on the allegation that on 5.10.2008 at about 8.45 AM, secret information was received telephonically that smuggled contraband narcotic drugs were concealed in the booked baggage by a passenger, who had boarded Air India Flight No.AI 187, bound for Toronto, Canada, which was to depart at 9.05 AM from Raja Sansi International Airport, Amritsar. The time was very short. Customs authorities at Raja Sansi International Airport were requested to hold Flight No.AI 187 and not to allow the said Aircraft to take off. The DRI officers off loaded Raminder Singh and his wife Harinder Kaur along with their baggage consisting of four suitcases and three hand bags. Independent witnesses were joined. Shri Crl.Misc.No.M-18135 of 2009 2 Ramesh Sharma disclosed his identity as Senior Intelligence Officer, whereas Smt. S.P.Goel disclosed her identity as Superintendent Customs. Both of them were gazetted officers. Notice under Section 50 of the NDPS Act (for short `the Act’) was issued as to whether the accused wanted to be searched before any gazetted officer or a Magistrate. The accused reposed faith to be searched in the presence of Senior Intelligence Officer and on search of the baggage of the accused, 3.770 kgs. of heroin was recovered. Learned counsel for the petitioner argued that there was secret information but no compliance of Sections 42 and 50 of the Act was made. Sections 42 and 50 of the Act are mandatory. On personal search of the petitioner, no incriminating article was recovered. On search of residential house of the petitioner also, no incriminating article was recovered. Confession made before the Custom Officer is hit by Section 25 of the Act. The petitioner is in custody w.e.f. 5.10.2008. Prosecution is to take time to complete evidence. Learned counsel for the petitioner placed reliance on (i ) 2008(1) RCR (Crl.) 241, Directorate of Revenue & another vs. Mohammed Nisar Holia; (ii) 2008(1) RCR (Crl.) 266, State of Punjab vs. Surjit Singh; (iii) 2008(1) RCR (Crl.) 503, Sukhdev Singh vs. State of Haryana, and (iv) 2008(3) RCR (Crl.) 633, Noor Aga vs. State of Punjab and another. Learned counsel for DRI argued that as per secret information, baggage of the petitioner was checked and on checking, 3.770 kgs. of heroin was recovered. Wife of the petitioner was also with him, but she was not implicated. No doubt, the petitioner is in custody w.e.f. 5.10.2008, but confession of the petitioner under Section 67 of the Act is admissible in evidence. Learned counsel for DRI relied upon ( i) 2001(8) LCX 0332, Crl.Misc.No.M-18135 of 2009 3 Sajan Abraham vs. State of Kerala; (ii) 2009(1) RCR (Crl.) 92, Rehmatullah vs. Narcotics Control Bureau, and (iii) 2009(1) RCR (Crl.)938, Union of India vs. Rattan Malik @ Habul. Undisputedly, complaint is by DRI and the petitioner is in custody w.e.f. 5.10.2008, but the recovery is of 3.770 kgs. of heroin. The petitioner along with his wife had boarded Air India Flight No. AI 187 bound for Toronto, Canada. As per secret information on telephone, customs authorities at Raja Sansi International Airport, Amritsar, were requested telephonically to hold Flight No.AI 187 and not to allow the Aircraft to take off. Petitioner and his wife were off loaded with baggage. Offer was given to the petitioner as to whether he wanted to be searched in the presence of a gazetted offier or a Magistrate. Two independent witnesses were joined. From the baggage of the petitioner, heroin was recovered. In Mohammed Nisar Holia’s case (supra), held that “recovery of contraband on receipt of secret information- Information not reduced by the officer in writing, but conveyed the same to another officer- The latter officer reduced it in writing- Information has to be reduced in writing by the officer who received the same- Accused acquitted.” But in para (F), Hon’ble Supreme Court held that in conducting search and seizure in public place or a moving vehicle, provisions appended to sub-section (1) of Section 42 would not be attracted- In such a case even sub-section (2) of Section 42 need not be complied with. In Surjit Singh’s case (supra), held that secret information was received by Investigating Officer that accused was transporting opium in a Maruti Car- Investigating Officer recorded the information but did not send Crl.Misc.No.M-18135 of 2009 4 copy of same to his immediate superior officials as required under Section 42(2) of the NDPS Act-Story was found to be not genuine- Acquittal upheld. In Sukhdev Singh’s case (supra), recovery of contraband which was lying in a room of house occupied by accused- Accused was arrested from another room- Accused was not proved as owner or in exclusive possession of house- Accused cannot be said to be in conscious possession of the contraband. In Noor Aga’s case (supra), Hon’ble Supreme Court held that Custom Officer is a deemed Police Officer under NDPS Act- Confession made by accused before Custom Officer is hit by Section 25 of Evidence Act. In Sajan Abraham’s case (supra), Hon’ble Supreme Court in para 7 has observed as under:- “7. In the present case, PW3 the Head Constable got information with reference to the appellant only at about 7 PM that the person is selling injectible narcotic drugs near the Blue Tronics Junction, Palluruthy. When he proceeded for Pilluruthy Police Station to give this information to his immediate superior SI of Police PW5, he found PW5 along with his police party, who were on patrol duty coming, hence the said information was communicated there by PW3 to PW5. Thereafter, PW5 along with his police party and PW3 immediately proceeded towards the place where the appellant was standing. Had they not done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. How PW5 could have recorded the information Crl.Misc.No.M-18135 of 2009 5 given by PW3 and communicated to his superior while he was on motion, on patrol duty, in a jeep before proceeding to apprehend him is not understandable? Had they not acted immediately, appellant would have escaped. On these facts, we do not find any inference could be drawn that there has been any violation of Section 42 of the Act.” In Rehmatullah’s case (supra), Hon’ble Delhi High Court held that recovery of 75 kgs. of heroin by officer of Narcotic Control Bureau- Accused convicted and sentenced to 10 years RI on the basis of confessional statement made by him before the officer of Narcotic Control Bureau under Section 67 of NDPS Act- No evidence that statement was not made voluntarily by the accused. Further held- confessional statements recorded by such officers are admissible in evidence. Section 67 does not prohibit recording of successive statements. Statement can be used as substantive evidence against co-accused. An officer of Narcotic Bureau is not a police officer- the bar under Sections 24 and 27 of the Evidence cannot be attracted. In Rattan Malik @ Habul’s case (supra), the accused was convicted under NDPS Act. Bail granted by the High Court during pendency of appeal on the ground that accused was in jail for 3 years and there was no chance of appeal being heard within a period of 7 years-bail order of the High Court was set aside on the ground that the High Court ignored the mandatory provisions of Section 37 of NDPS Act. In the present case, recovery was from the baggage of the petitioner. Petitioner along with his wife had boarded Air India flight but wife of the petitioner was not involved. Secret Information was received on Crl.Misc.No.M-18135 of 2009 6 telephone and on telephone, Raja Sansi International Airport authorities were requested not to allow the Aircraft to take off. There was no time to reduce the secret information into writing. In case on receipt of secret information, an effort would have been made to reduce the secret information into writing and send to the higher authorities, ``then by that time, the Airport authorities would have allowed the aircraft to take off. Then there was no question to apprehend the petitioner. In case no incriminating article was recovered from personal search of the petitioner or from his residential house, then story is not to be ignored. In view of the authorities cited by learned counsel for the DRI, no question of bail. Keeping in view the nature of offence, the petition, being without merit, is dismissed. 6.10.2009 ( JORA SINGH ) pk JUDGE