Case: Girish Raghunath Mehta Vs. Inspector Of Customs

joined while recording the statement. The appellant was in custody at the time of recording the statement. The statement was not voluntary. Its contents were not read over to him. A-2 was also in custody and his statement was also not voluntary. Statement of co-accused could not be taken as substantive evidence. The same could not be relied upon in view of the decision in Bal Mukund and Raju Premji (supra).8. Learned counsel for the State supports the conviction and sentence of the appellant. He submitted that concurrent finding of the courts below is based on evidence and the same is not liable to be disturbed in an appeal under Article 136 of the Constitution. It was pointed out that the contentions advanced by the learned counsel for the appellant are not shown to have been raised before the High Court. He next submitted that Section 42 applies only when recovery is to be effected from a building, conveyance or enclosed place. Present case is covered by Section 43 as recovery is from a public place. As regards the plea of absence of label, neither any question was raised at the time of production of the bag nor the fact of recovery of the contraband from co-accused is in dispute. Recovery was proved by independent direct evidence. Co-accused from whom recovery was effected has not even challenged his conviction. As regards the record of samples, it is pointed out that the evidence of the chemical examiner-PW8 is categoric that all the samples were in sealed condition. The appellant never retracted his statement under Section 67 to the effect that the contraband recovered from co-accused was sold by the appellant and that the said co-accused had no licence to purchase the contraband and thereby the appellant contravened the conditions of his licence. He was not in custody when his statement was recorded as is clear from the statement of PW2- Gerard Joseph, who recorded the statement.9. After due consideration, we do not find any merit in the submissions on behalf of the appellant. Both the courts below have concurrently held that the appellant was found to have sold the contraband to the co-accused without any licence. The said finding, inter alia, is based on the evidence of PW1- Bhaskar Shetty, Inspector of Customs who seized the contraband from the co-accused- Karim Patel. Further, the evidence in the form of statement of the appellant himself (Ex.-20) under Section 67 of the Act before his arrest clearly shows that the appellant had sold the contraband to the co-accused-Karim Patel who did not have any licence to purchase thereof. Even otherwise, the connection of contraband with the appellant was clearly established after which the burden was on appellant to show that he had effected sale to an authorized person. Recovery from the co-accused was from an open place to which Section 42 of the Act is not attracted. At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity. Thus, the absence of label and sign of identity could not be presumed. The samples were duly tested by the chemical analyzer and were found to be intact. There is, thus, no serious infirmity in the findings recorded by the courts below in convicting and sentencing the appellant.10. The contention raised on behalf of the appellant on the basis of judgments of this Court in Abdul Rashid Ibrahim Mansuri, Jag Raj Singh and Sukhdev Singh (supra) cannot be accepted. As already noticed, Section 42 of the Act has no application to the fact situation of the present case. The said section applies when the contraband recovered from a building, conveyance or enclosed place. Where recovery is from a public place, Section 43 applies. This Court reconciled the view taken in Abdul Rashid Ibrahim Mansuri (supra) and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 )in larger bench judgment in Sukdev Singh (supra). It was held that in view of technological advancements, it may not be possible to record information as per the requirement of Section 42. Strict compliance by the investigating agency should not be required in an emergency situation so as to avoid misuse by wrongdoers/ offenders/ drug peddlers (2009) 8 SCC 539 - Para 34). Whether there is adequate substantial compliance is a question of fact in each case. Apart from the finding that present case is governed by Section 43, there is no ground to interfere with the concurrent finding of the Courts below that there is adequate compliance of Section 43 of the Act.11. Similarly, the contention on the basis of the judgments in Tofan Singh, Raju Premji and Noor Aga (supra) also cannot be accepted. There can be no doubt that the Court has to satisfy itself that the statement under Section 67 was made voluntarily and at a time when the person making such statement had not been made an accused. Whether the statement is voluntary and free from encumbrance has to be judged from the facts and circumstances of each case. In Tofan Singh (supra), the question whether the investigating officer investigating the matter under the Act is a police officer and whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as a confessional statement has been referred to the larger Bench. It is not necessary to go into this aspect in the present case as there is adequate evidence to prove the sale of the contraband by the appellant for which co-accused has been convicted and sentenced. The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization. Thus, we do not find any ground to interfere with the conviction and sentence awarded to the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization. Thus, we do not find any ground to interfere with the conviction and sentence awarded to the appellant.