Raju Premji vs Customs Ner Shillong Unit

2. Appellant Raju Premji (A-4) was a resident of Shillong. He, however, had been carrying on business in shoes in West Bengal. Appellant Arun Kanungo (A-3), however, is a resident of Meghalaya. They along with two other accused, namely Yashihey Yobin (A-1) and Lishihey Ngwazah Ngwazah (A-2) were prosecuted for commission of offences under the NDPS Act.

4. The prosecution case in brief is that D. Pakyntein, PW-11, an Inspector in the Office of the Commissioner of Customs, NER Shillong, received an information from Special Operation Team of Meghalaya Police through N.K. Bhandari, PW-4, at about 7.50 p.m. on 19th August, 2003 that one Yasihey Yobin of Dum Dum, Nogthymmai, accused No.1, had kept some heroin at his residence and if a search is conducted immediately, the contraband may be recovered. Thereafter Pakyntein contacted R.M. Chyne, Superintendent (PW-7), B. Kar, Inspector (PW-2) and N.K. Bhandari, PW-4. All of them proceeded towards the residence of accused No.1 to conduct the search. On reaching there, they met the members of the Special Operation Team alongwith Yobin. After the particulars of Yobin were ascertained, his house was searched in presence of independent witnesses R.V. Dkha, PW-3 and D. Khyriem, PW-8, in course whereof he took out one suitcase wherein he had allegedly kept the packet of heroin. However, no heroin was found therein. On interrogation on the spot, Yobin informed that his brother-in- law, Lisihey Ngwazah, accused No.2, must have removed the same. He instructed his wife to contact him and ask him to come back immediately with goods. Accused No.2 after sometimes turned up with a black bag on his shoulder. On being asked, he opened the bag and took out the contents thereof which included one suit case cover of camouflage denim made of synthetic fabric and one green polythene bag, on opening whereof, one 3 plastic packet containing white powder wrapped with two pieces of English newspaper was recovered.

5. Indisputably, however, the information was received by M. Kharkrang, Additional Superintendent of Police, PW-9, from his source who informed that he had been offered to sell drugs by some people and they have to meet him at Keating Road, whereupon plain clothes policemen were posted, who nabbed the appellants therefrom. They were brought to the office of the Superintendent of Police. Physical search was made of the appellants but nothing was found. They were interrogated whereupon they allegedly disclosed that the drugs were in possession of accused No.1.

At that point of time, the Customs Officers were informed. Whereas the police officers reached the village of accused No.1 first, the Customs Officers joined them later.

4 It is now borne out from the record that whereas all the accused made two statements each on 20th August, 2003 purported to be under Section 67 of the Act. So far as accused No.4 is concerned the statements made by him were marked as Exts 17 and 18 whereas those of the accused No.3 are concerned, they were marked as Exts. 13 and 14. A formal first information report was lodged only in the afternoon of 20th August, 2003. All the accused persons were formally arrested at 4.30 p.m. They were subjected to further interrogation and both the appellants made a third statement on 21st August, 2003 which were marked as Exts. 19 and 15 respectively. They were produced before the Magistrate on the same day.

Whereas accused No.4 retracted from his confession on 4th November, 2003, other accused including accused No.3 retracted therefrom while making their statements under Section 313 of the Code of Criminal Procedure.

7. A charge sheet was filed against the appellants for commission of offences under Section 21, 28 and 29 of the Act on 21st November, 2003. They were convicted, as stated aforesaid. Appeal preferred by them before the High Court have been dismissed by the reason of the impugned judgment.

23. Whether a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case.

As the appellants were not found to be in possession of the contraband, the burden of prove never shifted on them.

27. For the reasons abovementioned these appeals are allowed. The appellants are directed to be released forthwith if not required in connection with any other case.

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