Counsel for Appellant :- U.B. Singh Counsel for Respondent :- Govt. Advocate,Ashish Pandey Connected with Case :- CRIMINAL APPEAL No. - 2803 of 2012 Appellant :- Vinod Kumar Respondent :- State of U.P. and Another Counsel for Appellant :- U.B. Singh,Ajay Kr. Singh,Ashish Pandey,Ashok Kumar Shukla,Chandrakesh Mishra,Daya Shankar Mishra,K.K. Singh,Kailash Prakash Pathak,Raj Bahadur Srivastava,Raj Kumar Tripathi,Sarita Singh,Vijai Prakash Counsel for Respondent :- Govt. Advocate,Ashish Pandey Hon'ble Ajit Kumar J.
1. Heard Sri D.S.Mishra, learned Advocate assisted by Sri U.B.Singh and Sri Chandrakesh Mishra, learned counsel for the respective appellants, Sri Ashish Pandey, learned counsel for the Narcotics Control Board and Sri B.A.Khan, learned Additional Government Advocate for the State.
2. These two above noted criminal appeals have been listed together under the order of this Court dated 20th August, 2019 as they arise out of common judgment dated 3rd July, 2012 passed in Sessions Trial No. 188 of 2003 (State v. Pyare Lal) under Section 8/20/27A/29 of the Narcotics Drugs and Psychotropic Substance Act, 1985 passed by Additional District and Sessions Judge, Court No. 24/Special Judge, Allahabad. Accordingly both the appeals have been heard together and are being decided by this common judgment.
3. The prosecution case in the complaint is that on receiving information from some reliable confidential sources, Sri Kaushal Kant Mishra, an intelligence officer of the Narcotics Control Bureau Control, Varanasi landed at Allahabad on 2nd June, 2003 alongwith a team of officers at around 5:00 pm directly at the gate of M/s Gati Transport Private Ltd. a private transport service for carriage of goods and articles (for short transport company). At the very gate of Transport Company, he and his team happened to meet two persons namely, Mrinmay Das Gupta and Sandip Kumar Sharma, who claimed themselves to be employees of the Transport Company. The team of officers led by Mr. Mishra apprised these employees about the purpose of their arrival at Allahabad and persuaded them to be their witnesses, to which they readily agreed. Thus, having obtained their consent, the team alongwith those two witnesses reached at the spot where 20 plywood boxes were lying and they approached the person as well who was standing by side these boxes. Upon an enquiry, he told the team that his name is Vijay Kumar S/o Sukru Ram, a resident of police Station Nizamabad, district Azamgarh and upon further enquiry from him, he informed them that these 20 boxes were full of Ganja (fruiting top of Cannabis plant), a psychotropic substance. He admitted that these boxes belonged to one Vinod Singh S/o Shiv Nath Singh a resident of village Ronwa, Post Fariha P.S. Nizamabad, District Azamgarh, who had asked him to get these boxes released and for that purpose he had been paid Rs. 14,969/- and was also having the papers to get these boxes released, and further that he was directed by said Vinod Singh to get these boxes delivered at his shop situate in Ronwa village. He also informed the team that he was waiting there for a proper carriage to get these boxes loaded for the desired destination. As usual, the officers asked Vijay Kumar that should he wanted these boxes and himself also to be searched in front of a Gazetted Officer or Magistrate, he would be permitted to do so but he refused in writing for the same and authorized the officers of the team to carry out the search. The search was carried out on the spot and said Vijay Kumar also refused to get the independent witnesses to be searched prior to search being carried out. As agreed by Vijay Kumar, the search of 20 plywood boxes was undertaken and these boxes were found fully filled with brown colour leaves etc. and when they were tested on a testing tool kit, the team had carried with it, it was found to be ganja a psychotropic substance. On enquiry, Vijay Kumar admitted to have prior knowledge of psychotropic substance being there inside those boxes and admitted to have knowledge that he was carrying the contraband quite unauthorizedly and that it was a punishable offence under the Act, 1985, however, he claimed that he was doing so for a monthly payment of Rs. 2000/-. The boxes thus were emptied as the material was taken out of the boxes and was all weighed and it all turned out to be 630 Kg in weight. The entire material was kept in 22 jute bags and two sets of samples were collected of 25 grams each from each jute bag. The samples were separately sealed in envelopes marking with separate numbers as S1 and S 2 and were got duly signed by the officers of the bureau who were part of the team, independent witnesses and said Vijay Kumar, one of the appellants before this Court. All the 22 jute bags were properly sealed and numberd from 1 to 22 and papers pasted upon all those were duly signed by the officers, witnesses and the appellant Vijay Kumar. The recovery memo was prepared and was duly signed by the members of the team, two independent witnesses, who claimed to be employees of the Transport Company and also by Vijay Kumar, one of the appellants. Immediately after the task of search and seizure of the boxes and material was accomplished, a recovery memo was prepared on the spot and the information was sent to Varanasi about the other accused namely Vinod Kumar. A team in the leadership of Sri Ram Akbal Dubey of Narcotics Control Bureau Varanasi was constituted and with the help of local police force the team carried out search of person and the house of the said Vinod Kumar in presence of two independent witnesses, namely Shiv Murat Tiwari and Khaderu Ram, both resident of village Dilauri, P.S. Rani Ki Sarai. However, during search carried out of the person and the house of Vinod Kumar no incriminating material was found relating to any contraband including the one in respect of which one of the appellants Vijay Kumar was taken into custody as said contraband was seized at Allahabad on 2nd June, 2003.
4. It transpires from the record that while recovery memo was prepared on 2nd June, 2003, the contraband and the jute bags were taken to Varanasi and were submitted for safe custody in Malkhana only on 5.6.2003. The sample that was sent for chemical examination and report to the Central Laboratory at Delhi, on 05.06.2003 and the reports prepared on 16.07.2003 were received in September 2003, in which the alleged sample was found to be a psychotropic substance namely Ganja.
5. The prosecution led its witnesses Ram Akbal Dubey as PW-1, the officer who had conducted search and raid at the residence of Vinod Kumar one of the appellants, K.K.Mishra prosecution witness no. 2 who had conducted search and seizure of the boxes from the alleged possession of appellant Vijay Kumar and prepared recovery memo and other officers of the team, Krishna Kant Srivastava and Pradip Kumar Gunwant, the statements recorded under Section 67 of the appellants Vijay Kumar and Vinod Kumar, the recovery memo, statements of independent witnesses Mrinmay Das Gupta, Sandip Kumar Sharma, Shiv Murat Tiwari, Yashwant Singh and Smt. Basmati recorded under Section 67 of the Act were also produced. The documents qua statements of Vinod Kumar and Vijay Kumar about their having been duly apprised of their rights to be searched before the Gazetted Officer or Magistrate were also produced and were duly marked as exhibits. The laboratory reports were also produced and duly marked as exhibits A-10 to A-31. The physical verification report of contraband kept in the Malkhana by a judicial Magistrate, claimed as the one prepared in compliance of Section 52-A of the Act, 1985 was already there on record of the trial court.
6. The trial court examined these above named witnesses except Mrinmay Das Gupta and Sandip Kumar Sharma, who were not produced by the prosecution to prove the recovery memo of 20 plywood boxes and so also independent witness Shiv Murat was not produced. Khaderu Ram appeared as defence witness. Statements of accused appellants under Section 313 of Cr.P.C. were also recorded.
7. The trial court found statement recorded by the officers of the department under Section 67 of the Act to be fully proved by the officers of the department through their respective testimonies given before the trial court. Though arguments were advanced before the trial court that two independent witnesses of the search and seizure / recovery memo of the 20 plywood boxes, recovery of contraband, collection of samples and proper sealing of samples and jute bags, were not produced before the Court and, therefore, the recovery was doubtful and that independent witness Khaderu Ram having completely denied the search carried out of the person and house of Vinod Kumar and that confessional statements of the accused persons recorded by the officers of the Bureau could not have been taken to be conclusive evidence and were surely hit by Section 25 of the Indian Evidence Act 1872, but the said argument was rejected by the trial court holding that in the light of the authority of the Apex Court in the case of Kanahiyia Lal v Union of India (2008) 4 SCC 668, the statements recorded under Section 67 of the Act, are not the statements to be taken as one recorded by the police under the Indian Evidence Act, 1872 and, therefore, on the basis of statement recorded under Section 67 of the NDPS Act, the accused can be convicted.
8. The trial court proceeded to hold that statements that have been recorded of Vijay Kumar under Section 67 of the NDPS Act, 1985 marked as Exhibit A-35 and that of Vinod Kumar marked as Exhibit A-1 and the recovery memo marked and Exhibited as Exhibit- A-34, it was apparent that they were all involved in the smuggling of contraband that was recovered on 2nd June, 2003 at the gate of godown of Transport Company from the possession of said Pyare Lal @ Vijay Kumar who took the name of the other accused Vinod Kumar and thus both of them were liable to be held guilty, and accordingly awarded them with sentence as prescribed under the law.
9. Learned Senior Advocate who appeared in both the appeals as instructed by the counsel appearing in the respective appeals raised basically three arguments:
a. (first) The statements of the accused persons recorded under Section 67 of the NDPS Act, 1985, by the officers of the Narcotics Control Bureau, Varanasi, was no better than the one recorded by the police under Section 161 of the Cr.P.C. and, therefore, does not have evidenciary value and is hit by Section 25 of the Indian Evidence Act, 1872;
b. (second) In the absence of compliance of procedure as prescribed for under Section52-A of the Act, 1955 and non production of the original material kept safe in sealed jute bags in Malkhana, during trial in court to prove that sample collected was the same as stored in the sealed jute bags, clearly establishes that the entire theory of contraband tested positive psychotropic substance, remained uncorroborated and unproved. Adding further, it is argued that the link between the recovery of contraband and submission of it in Malkhana suffers from vice of questionable time lag of more than two days and so also sending of the sample to the Laboratory.
c. (third) In the absence of call details of the outgoing calls from WLL and phone numbers of Assam for want of STD facility and further absence of call details pertaining to the crucial period and so also in the absence of credentials of those in whose names telephone numbers were allotted qua their involvement in the illicit trade of contraband, mere call details to and fro between a PCO number and such numbers, would not by itself amount to conclusive proof of illicit inter-state trade of contraband by the accused persons so as to hold them guilty of the offence under the NDPS Act, 1985.
10. In support of above arguments raised by learned Senior Advocate, he has relied upon recent judgment of the Apex Court in the case of Toofan Singh v State of Tamil Nadu delivered on 29th October, 2020 in Criminal Appeal no. 152 of 2013 and other connected appeals, Noor Aga vs. State of Panjab 2008 (16) SCC 417, Rajesh Jagdamba Avasthi v State of Goa, AIR 2005 SC 1389, Jitendra and Another v State of Madhya Pradesh AIR 2003 SC 4236, Vijay Pandey v State of U.P. 2019 0 Supreme (SC) 799, Mohinder v. State of Haryana 2013 CRI.L.J. 3662.
11. Learned Senior Advocate thus argued that order of conviction and sentence impugned herein these two criminal appeals was clearly unsustainable and deserved to be set aside.
12. Per contra, learned counsel appearing for the department Sri Ashish Kumar Pandey vehemently opposed the appeals and raised arguments justifying the conviction and sentence of the accused appellants. He argued that confessional statement recorded under Section 67 of the 1985 Act, was not the only conclusive evidence in the present case. There were evidence like recovery memo etc. and the documents recovered from the possession of the said Vijay Kumar which related to release of plywood boxes and the fact that both the accused belonged to Azamgarh, there was no occasion for the accused Vijay Kumar to be here at Allahabad. In support of his argument Sri Pandey has claimed Gian Chand, and Others v. State of Haryana 2018 LawSuit (SC) 655, Jarnail Singh v. Stae of Panjab (2011)1 SCC (Cri.) 1191, Mohinder v. State of Haryana 2013 (Cri. L.J.) 3662, State of Rajasthan v. Sahi Ram AIR 2019 (SC) 4723. Dehal Singh and Others. v. State of Himachal Pradesh 2010 Law Suit (SC) 592.
13. Sri Basharat Ali Khan, learned AGA has adopted the arguments of Sri Pandey.
14. Besides above, it was also submitted on behalf of the respondents that there was no reason to disbelieve or caste doubt over the testimonies of the officers of the department who had given conclusive proof qua recovery memo prepared on the spot, sample collected and sent to the laboratory. It was argued that there could not be any motive attached to the officers for false implication of the accused appellants. It was also argued that even there was compliance of Section 52-A of the Act, 1985 as judicial Magistrate had visited the malkhana and physically examined the contraband and prepared the report on 22.12.2005 in compliance of the order of the Court dated 03.12.2005 and submitted the same which was on record before the trial court and needed no further proof and was to be taken as primary piece of evidence.
15. Having gone through the records and the arguments raised across the bar by the learned counsel appearing for the respective parties and having thoroughly perused the records, I proceed to deal with arguments raised by the learned Senior Advocate appearing for the appellants with due consideration of the arguments raised by the learned Advocate Sri Pandey appearing for the department.
16. Coming to the first argument, the question is as to whether the confessional statement of the accused appellants by the officers of the department under Section 67 of the Act, 1985 would be no better than the statement recorded under Section 161 and, therefore, hit by Section 25 of the Indian Evidence Act, 1872, the legal position as has emerged in the recent judgment of Toofan Singh (supra) by the Supreme Court needs to be referred to. The reference as noticed by the Supreme Court in its judgment is reproduced hereunder:
"1. Whether an officer empowered under Section 42 of the NDPS Act and/or the officer empowered under Section 53 of the NDPS Act are Police Officers and therefore statements recorded by such officers would be hit by Section 25 of the Evidence Act; and
2. What is the extent, nature, purpose and scope of the power conferred under Section 67 of the NDPS Act available to and exercisable by an officer under section 42 thereof, and whether power under Section 67 is a power to record confession capable of being used as substantive evidence to convict an accused?"
17. Having referred to the arguments of the respective counsel in detail and having discussed the various authorities cited before it, vide paragraph 147 to 152, the Court has observed thus:
"147. What remains to be considered is Kanhaiyalal (supra). In this judgment, the question revolved around a conviction on the basis of a confessional statement made under section 67 of the NDPS Act. This Court, after setting out section 67, then drew a parallel between the provisions of section 67 of the NDPS Act and sections 107 and 108 of the Customs Act, 1962, section 32 of the Prevention of Terrorism Act, 2002 (POTA) and section 15 of the TADA - see paragraph 41. These provisions are as follows:
Customs Act, 1962 107. Power to examine persons.--Any officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs may, during the course of any enquiry in connection with the smuggling of any goods,
(a) require any person to produce or deliver any document or thing relevant to the enquiry;
(b) examine any person acquainted with the facts and circumstances of the case.
108. Power to summon persons to give evidence and produce documents.(1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent; as such officer may direct and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).
POTA
32. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.
(2) A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him: Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.
(3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
(4) The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.
(5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.
TADA "15. Certain confessions made to police officers to be taken into consideration: (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or Rules made thereunder:
Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily."
148. Even a cursory look at the provisions of these statutes would show that there is no parallel whatsoever between section 67 of the NDPS Act and these provisions. In fact, section 108 of the Customs Act, 1962 expressly states that the statements made therein are evidence, as opposed to section 67 which is only a section which enables an officer notified under section 42 to gather information in an enquiry in which persons are "examined".
149. Equally, Section 42 of POTA and section 15 of TADA are exceptions to section 25 of the Evidence Act in terms, unlike the provisions of the NDPS Act. Both these Acts, vide section 32 and section 15 respectively, have non-obstante clauses by which the Evidence Act has to give way to the provisions of these Acts. Pertinently, confessional statements made before police officers under the provisions of the POTA and TADA are made admissible in the trial of such person see section 32(1), POTA, and section 15(1) TADA. This is distinct from the evidentiary value of statements made under the NDPS Act, where section 53A states that, in the circumstances mentioned therein, statements made by a person before any officer empowered under section 53 shall merely be "relevant" for the purpose of proving the truth of any facts contained in the said statement. Therefore, statements made before the officer under section53, even when relevant under section 53A, cannot, without corroborating evidence, be the basis for the conviction of an accused.
150. Also, when confessional statements are used under the TADA and POTA, they are used with several safeguards which are contained in these sections themselves. So far as TADA is concerned, for example, in Kartar Singh (supra) the following additional safeguards/guidelines were issued by the Court to ensure that the confession obtained in the course of investigation by a police officer "is not tainted with any vice but is in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness":
"263(1) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him;
(2) The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay;
(3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon;
(4) Notwithstanding anything contained in the code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987.
This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under section 13, authorise only a police officer of a specified rank to investigate the offences under those specified Acts.
(5) The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody;
(6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure;
The Central Government may take note of these guidelines and incorporate them by appropriate amendments in the Act and the Rules."
151. Insofar as POTA is concerned, procedural safeguards while recording confessions have been discussed by this Court in State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 as follows:
"Procedural safeguards in POTA and their impact on confessions
156. As already noticed, POTA has absorbed into it the guidelines spelt out in Kartar Singh and D.K. Basu in order to impart an element of fairness and reasonableness into the stringent provisions of POTA in tune with the philosophy of Article 21 and allied constitutional provisions. These salutary safeguards are contained in Sections 32 and 52 of POTA. The peremptory prescriptions embodied in section 32 of POTA are:
(a) The police officer shall warn the accused that he is not bound to make the confession and if he does so, it may be used against him [vide sub-section (2)].
(b) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it [vide sub-section (3)].
(c) The person from whom a confession has been recorded under sub-section (1) shall be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate along with the original statement of confession, within forty-eight hours [vide sub-section (4)].
(d) The CMM/CJM shall record the statement, if any, made by the person so produced and get his signature and if there is any complaint of torture, such person shall be directed to be produced for medical examination. After recording the statement and after medical examination, if necessary, he shall be sent to judicial custody [vide sub- section (5)].
The mandate of sub-sections (2) and (3) is not something new. Almost similar prescriptions were there under TADA also. In fact, the fulfilment of such mandate is inherent in the process of recording a confession by a statutory authority. What is necessarily implicit is, perhaps, made explicit. But the notable safeguards which were lacking in TADA are to be found in sub-sections (4) and (5).
157. The lofty purpose behind the mandate that the maker of the confession shall be sent to judicial custody by the CJM before whom he is produced is to provide an atmosphere in which he would feel free to make a complaint against the police, if he so wishes. The feeling that he will be free from the shackles of police custody after production in court will minimise, if not remove, the fear psychosis by which he may be gripped. The various safeguards enshrined in Section 32 are meant to be strictly observed as they relate to personal liberty of an individual. However, we add a caveat here. The strict enforcement of the provision as to judicial remand and the invalidation of the confession merely on the ground of its non-compliance may present some practical difficulties at times. Situations may arise that even after the confession is made by a person in custody, police custody may still be required for the purpose of further investigation. Sending a person to judicial custody at that stage may retard the investigation. Sometimes, the further steps to be taken by the investigator with the help of the accused may brook no delay. An attempt shall however be made to harmonise this provision in Section 32(5) with the powers of investigation available to the police. At the same time, it needs to be emphasised that the obligation to send the confession maker to judicial custody cannot be lightly disregarded. Police custody cannot be given on the mere asking by the police. It shall be remembered that sending a person who has made the confession to judicial custody after he is produced before the CJM is the normal rule and this procedural safeguard should be given its due primacy. The CJM should be satisfied that it is absolutely necessary that the confession maker shall be restored to police custody for any special reason. Such a course of sending him back to police custody could only be done in exceptional cases after due application of mind. Most often, sending such person to judicial custody in compliance with Section32(5) soon after the proceedings are recorded by the CJM subject to the consideration of the application by the police after a few days may not make material difference to the further investigation. The CJM has a duty to consider whether the application is only a ruse to get back the person concerned to police custody in case he disputes the confession or it is an application made bona fide in view of the need and urgency involved. We are therefore of the view that the non-compliance with the judicial custody requirement does not per se vitiate the confession, though its non-compliance should be one of the important factors that must be borne in mind in testing the confession.
158. These provisions of Section 32, which are conceived in the interest of the accused, will go a long way to screen and exclude confessions, which appear to be involuntary. The requirements and safeguards laid down in sub sections (2) to (5) are an integral part of the scheme providing for admissibility of confession made to the police officer. The breach of any one of these requirements would have a vital bearing on the admissibility and evidentiary value of the confession recorded under section 32(1) and may even inflict a fatal blow on such confession. We have another set of procedural safeguards laid down in Section 52 of POTA which are modelled on the guidelines envisaged by D.K.Basu [(1997) 1 SCC 416]. Section 52 runs as under:
"52. (1) Where a police officer arrests a person, he shall prepare a custody memo of the person arrested.
(2) The person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the police station.
(3) Whenever any person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or in his absence to a relative of such person by telegram, telephone or by any other means and this fact shall be recorded by the police officer under the signature of the person arrested.
(4) The person arrested shall be permitted to meet the legal practitioner representing him during the course of interrogation of the accused person:
Provided that nothing in this sub-section shall entitle the legal practitioner to remain present throughout the period of interrogation."
Sub-sections (2) and (4) as well as sub-section (3) stem from the guarantees enshrined in Articles 21 and 22(1) of the Constitution. Article 22(1) enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself.
152. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India. "
18. And finally, vide paragraphs 153, 154 and 155, the majority view has emerged thus:
"153. The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.
154.On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Niramal Singh PehlwanSingh v. Inspector Customs (2011) 12 SCC 298 are correct in law.
155. We answer the reference by stating:
(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
(Emphasis added)
19. Coming back to the case in hand the trial court in its findings part has observed thus:-
"20- cpko i{k dh vksj ls vfHk;qDr ds fo+}ku vf/koDrk }kjk bl rdZ ij cgqr tksj fn;k x;k gS fd vfHk;qDr ls cjkenxh dk dksbZ Lora= xokg ugha gSA bl lEcU/k esa vfHk;kstu lk{kh la[;k 2 o 4 ds c;ku ls Li"V gS fd vfHkdfFkr vfHk;qDr fot; dqekj ftldk lgh uke I;kjsyky gS] ds ikl ls dh x;h cjkenxh d le; ogka nks Lora= lk{kh Hkh ekStwn Fks] ftudk uke dze'k% ,e-,e-nkl xqIrk vkSj lanhi dqekj 'kekZ gSA ;|fi bu nksuks lkf{k;ksa dks vfHk;kstu i{k }kjk ijhf{kr ugha djk;k x;k gS] fdUrq bldk dksbZ izfrdwy izHkko vfHk;kstu dFkkud ij ugh iMsxk D;ksafd vfHk;qDr fot; dqekj mQZ I;kjs yky us /kkjk 67 ,u-Mh-ih-,l- vf/kfu;e ds vUrxZr fn;s x;s c;ku esa Li"V :i ls ;g Lohdkj fd;k gS fd mlds ikl ls tks xkatk cjken gqvk Fkk] og fouksn flag ds funsZ'kkuqlkj izkIr djus ds fy, bykgkckn vk;k Fkk vkSj blds lEcU/k esa mls 2000 :i;k izfrekg fouksn flag ls izkIr gksrk gSA bl izdkj dk c;ku fouksn flag us /kkjk 67 ,u-Mh-ih-,l-vf/kfu;e d vUrxZr fn;k gSA bl izdkj vfHk;qDr fouksn flag o fot; dqekj mQZ I;kjs yky }kjk /kkjk 67 ,u-Mh-ih-,l-vf/kfu;e ds vUrxZr fn;s x;s c;ku muds fo:) i 21& vfHk;kstu lk{;ksa ls ;g Li"V gS fd vfHk;qDr fot; dqekj mQZ I;kjs yky dh vfHkj{kk ls fnukad 3-6-03 dks 630 fdyksxzke xkatk dh cjkenxh gqbZ Fkh] ftldh iqf"V vfHk;kstu lk{kh la[;k 2 o 4 us Hkh dh gSA vfHk;kstu lk{kh l[;k 1 o 3 us Hkh bl rF; dk leFkZu fd;k gSA blls ;g Li"V gS fd vfHk;qDr fouksn dqekj mQZ I;kjs yky /kkjk [email protected] ,u-Mh-ih-,l-,DV ds vUrxZr nks"kh gSA vfHk;kstu lk{kh la[;k 2 o 4 us vius c;ku ls ;g Li"V :i ls crk;k gS fd vfHk;qDr fot; dqekj mQZ I;kjs yky us /kkjk 67 ,u-Mh-ih-,l-,DV ds vUrxZr ;g Lohdkj fd;k gS fd og vfHk;qDr fouksn flag ds ;gka xkatk igqapkus dk dke djrk gS vkSj mls fouksn flag mlds fy, 2000 :i;k izfrekg nsrk gSA vfHk;qDr fouksn flg }kjk /kkjk 67 ,u-Mh-ih-,l-,DV d vUrxZr fn;s x;s c;ku esa bl rF; dks Lohdkj fd;k gS fd tks xkatk esa0 xfr fyfeVsM VkUliksVZ uxj bykgkckn ds xksnke lg dk;kZy; ds ikl ls fnukad 2-6-03 dks C;wjks dh Vhe }kjk cjken fd;k x;k gS] og mldk rFkk I;kjs yky dk FkkA vfHk;qDr fouksn flag ds HkkbZ ;'koUr flag us vius c;ku esa ;g crk;k gS fd vfHk;qDr I;kjs yky mlds ih-lh-vks- dh nqdku ij ,d vU; O;fDr ds lkFk vkdj vklke ds fdlh O;kikjh ls okrkZ djrk FkkA bl lEcU/k esa foospd }kjk ;'koUr flag ds ih-lh-vks- dh x;h okrkZyki dk dky fMVsy dk fooj.k izLrqr fd;k x;k gS] blls ;g Li"V gS fd vfHk;qDr I;kjs yky mQZ fot; dqekj o fouksn flag ;kstukc) rjhds ls xkats dk O;kikj esa fyIr Fks] ftlds lEcU/k esa fouksn flag ] I;kjs yky dh vkfFkZd enn djrk FkkA bl izdkj fouksn flag dk ;g d`R; /kkjk 2 dh mi /kkjk 8 ¼3½ ,u-Mh-ih-,l- vf/kfu;e ds vUrxZr fd;k x;k dk;Z gS] ftlds fy, vfHk;qDr fouksn flag /kkjk 27 , ,u-Mh-ih-,l- ,DV ds vUrxZr nks"kh gSa "
"20. Learned counsel appearing for the defense strenuously argued that no independent witnesses to the recovery has been produced. In this regard, it is quite explicit from the statement of PW2 and PW 4 that at the time of recovery from the alleged accused Vijay Kumar whose correct name is Pyare Lal, two independent witnesses M.M.Das Gupta and Sandip Kumar Sharma were present. Even though the independent witnesses were not produced and examined but it will not adversely affect the prosecution case because it has been clearly admitted by the accused Vijay Kumar @ Pyare Lal in his statement under Section 67 of the NDPS Act that ganja was recovered from his possession and the recovered ganja had arrived at Allahabad on the instruction of Vinod Singh and that he used to receive Rs. 2000/- per month for such job. Similar statement has also been given by Vinod Singh under Section 67 of NDPS Act. Thus statements recorded under Section 67 of NDPS Act of accused Vinod Singh and Vijai Kumar @ Pyare Lal are liable to be read against them. In this regard, Supreme Court in the case of Kanhaiya Lal v. Union of India (2008) 4 SCC 668, has held that statements recorded by NCB are not the statements recorded by the police. Thus on the basis of statement recorded under Section 67 of the NDPS Act accused can be held guilty under NDPS Act. Further as has come to be stated that correct name of Vijai Kumar is Pyare Lal, his statement recorded under Section 67 of the NDPS is available on record and marked as Exhibit A-35. From the statements of accused Vinod Kumar and Vijai Kumar it is clear that both the accused were involved in interstate smuggling of ganja and the ganja that was recovered from the possession of accused Pyare Laal at the office of godown of M/s Gati Ltd that was being illegally traded by Vinod Singh in the containers of tea company preparing forged papers of the said company and for the same both accused Vinod Singh and Pyare Lal are guilty.
21. From the evidence provided by prosecution it is explicit that 630 kg of ganja was recovered from the possession of Vijai Kumar @ Pyare Lal on 02.06.2003 and this has been confirmed by the PW 2 and PW 4 also. PW 1 and PW 3 have also supported the said fact. Thus it is clear that accused Vinod Kumar @ Pyare Lal is guilty under Section 8/20 of NDPS Act. PW 2 and 4 have clearly stated in their respective statements that accused Vijai Kumar @ Pyare Lal had admitted in his statement under Section 67 of NDPS Act that he does work of transporting ganja to Vinod Singh's place and Vinod Singh used to pay him for the same of Rs. 2000 per months. Accused Vinod Singh has clearly admitted in his statement recorded under Section 67 of the NDPS Act that the ganja that was recovered by Bureau Team on 02.06.2003 from a place near joint office of M/s Gati Limited Transport belonged to him and Pyare Lal. Yashwant Singh, brothere of the accused Vinod Singh has also stated in his statement that accused used to talk from him PCO to some trader of Assam and the call details of talks have been placed before the Court. Thus it is clear that both the accused Pyare Lal and Vijai Kumar were involved in trade of ganja in a quite planned way and in which Vinod Singh used to help Pyare Lal financially. Thus this act of Vinod Singh is an offence under Sub-section 8(3) of Section 2 of NDPS Act for which he is guilty under Section 27A of the NDPS Act."
(English translation by the Court) (Emphasis added)
20. Now the above findings returned by the trial court in convicting the accused persons have to be tested on touchstone of the legal proposition as laid down in the supreme Court Judgement of Toofan Singh. It is a fact that two independent witnesses to the recovery memo of the search and seizure of the contraband prepared at Allahabad, namely, Mrinmay Das Gupta and Sandip Kumar Sharma were not produced before the Court as prosecution witness. To what extent their absence as an independent witness would question the credibility of the recovery memo and consequent upon that criminal case instituted under the NDPS Act, is an another issue relating to cumulative effect of various discrepancies casting doubt upon prosecution theory. What required here is that in the absence of those witnesses whether the statement recorded under Section 67 of the Act, 1985 besides the testimonies of the departmental witnesses, do come to conclude that material and the documents have stood proved to bring home the charge and whether the trial court could have assumed the appellant to be guilty taking recourse to the presumption under Section 35 read with Section 54 of the Act, 1985.
21. Two crucial witnesses besides the independent witnesses to the recovery memo were the intelligence officer Kaushal Kant Mishra who had led the team to carry out search and seizure, Pradip Kumar Gunwant another intelligence officer who was part of the said team. Since independent witnesses were not produced and in the statement recorded under Section 313 Cr.P.C, the entire recovery and preparation of the recovery memo was denied by the accused persons, especially the appellant Vijay Kumar @ Pyare Lal, the burden lay heavily upon P.Ws 2 and 3 to prove the recovery memo and the factum of recovery to raise statutory presumption. No doubt, the documents alleged to have been recovered from the possession of Vijay Kumar @ Pyare Lal were related to release of those plywood boxes from the Transport Company but that would not alone be sufficient to draw the conclusion that plywood boxes were found from his possession and that too it did contain the contraband.
22. P.W. 2 Kaushal Kant Mishra who had prepared recovery memo had stated in his examination in chief that independent witnesses who claimed to be employees of Gati Pvt. Ltd. had been seen at the very gate of the private transport company and at the very gate of Transport Company those 20 plywood boxes were lying and it was there the suspect was standing. Naturally a large number of containers were lying at the gate, so common sense would prevail to take help of the local police to confiscate and seize such huge quantity of contraband more specially when there was prior knowledge of psychotropic substance being there in plywood boxes but there is noting in the recovery memo and so admittedly the prosecution witnesses had stated in Court that they had not taken help of the local police. Every exercise of search and seizure was carried out on the spot, but nothing was stated how such a huge quantity of the contraband was weighed. The entire exercise of search and seizure was carried out till 11:30 pm in the night, the jute bags were purchased, the entire material was transferred from plywood boxes into jute bags and then sealed and that sealing process was witnessed by the two independent witnesses, namely employees of the Transport Company besides officials of the team and the accused. Interestingly during cross-examination, the two departmental witnesses have admitted that local police was not informed about the search and seizure activity which was to be carried out by the team coming from Varanasi, whereas there was sufficient information to the intelligence officer that contraband was being sent to Allahabad was in huge quantity and the boxes were seized on the road itself. PW 2 stated that team did not enter the premises of the Transport Company as nothing was seized from there and that contraband was weighed on road itself. He further denied to have stated ever that contraband was weighed after taking out from the plywood boxes and filling the same in the jute bags. He further stated during cross-examination that employees of transport company were roaming on road and they were asked to come forward and help the team and it is after querry being made that they informed him that they were employees of the Transport Company. He further did state that the entire material was carried to Varanasi by a truck but he did not know about the truck number and its payment. It is admitted that entire contraband to the tune of 630 kg was submitted to malkhana at Varanasi only on 05th June, 2003.
23. P.W. 4 Pradip Kumar Gunwant another member of the raiding team headed by P.W. 2 though supported the recovery and preparation of the recovery memo but quite interestingly he stated that entire material was weighed on a weighing machine of the transport company M/S Gati Pvt. Ltd. Naturally, weighing machine was inside the transport company and has stated very clearly that it is after recording of confessional statement of the accused under Section 67 of the Act, 1985 that he came to conclude that said Vijay Kumar was involved in the smuggling of contraband. During cross-examination, he further stated to have reached Allahabad with team in the night to carry out such search and seizure, but before 12:00 am. During cross-examination, he further stated that not only the team had the testing kit but also sealed papers weighing scales and weights of 10 grams, 25 grams and 50 grams. He stated very clearly during his cross-examination that entire contraband was weighed inside the transport company M/s Gati Pvt. Ltd. upon weighing scales provided by it and that it was weighed in the jute bags, but it is not so stated in the recovery memo. So, this statement is in contrast to the statement of the PW 2 witness Kaushal Kant Misrha, who had prepared recovery memo and had led team that carried out search and seizure. This witness also stated that in the entire exercise it took 6 to 7 hours and so if he reached in the night hours before 12:00 am, then exercise must have been carried out until early next morning. It is a fact that the team had stayed at Allahabad from 2nd June to 4th June, and the material confiscated was in huge quantity, then in such circumstances its security and storage must have been an issue as it was in custody of NCB men who were four in numbers and yet there is nothing on record as to whether they stayed with such a huge quantity at Allahabad and if yes where, as they did not take help of the local police under Section 55 of the Act, 1985 and quite interestingly for prety two full days they did not inform local police station at all. Admittedly, they did not keep the contraband with transport company but what happened to contraband which was in such a huge quantity for two days is not known, at least there is nothing on record to come to conclude as to where such a huge quantity of contraband was kept, in a hotel or in any guest house and under which kind of security.
24. Similarly, again the team led by P.W.-1 with help of P.W.-3 and local police of Azamgarh carried out search and seizure of person and residential premises of another co-accused, namely, Vinod Kumar. There again four persons namely Shiv Murat Tiwari, Khaderu Ram, Yashwant Singh and Smt. Basmati were taken to be independent witnesses to the search carried out of the person and residential premises of Vinod Kumar. Shiv Murat Tiwari, Yashwant Singh and Smt. Basmati were were never produced in Court whereas Khaderu Ram appeared as Defence Witness and denied entire alleged search and preparation of zero recovery memo. It is admitted to the prosecution that no incriminating material was found during search to connect the appellant Vinod Kumar with commission of the crime. The Public Call Office (PCO Booth) which was owned by his brother Yashwant Singh was later on when put to search for details of phone calls, it was found that phone numbers used for repeated calls from the PCO were the phone numbers of Assam. Since, the confiscated material was coming from Assam, and there were confessional statements of accused persons under Section 67 of the Act, 1985, an inference has been drawn by the prosecution while implicating said Vinod Kumar that he was master mind behind the entire activity and he could not give satisfactory reply about calls made to Assam.
25. It is in the above background of the testimonies of the prosecution witnesses it becomes necessary to test as to how far statements of accused persons under Section 67 of the Act can be relied upon to raise statutory presumption under Section 35 read with Section 54 of the Act, 1985 and whether the trial court has succeeded in arriving at a finding that there was culpable mental state of the accused. The question, therefore, is that whether findings recorded by the trial court is supported by cogent and convincing evidence that may lead to conclude that guilt is proved beyond reasonable doubt. The trial Court has held that Vinod Kumar in his statement under Section 67 of the NDPS Act, 1985 had admitted that the person who was arrested with 630 Kg of Ganja at Allahabad was Pyare Lal, a resident of Azamgarh and that he had admitted that he had been paid Rs. 14969/- to get the ganja released and that the other accused also admitted to have given that money and that he had earlier also been accused in respect of recovery of 1 Kg and 12 Kg of psychotropic substance and that his brother Yashwant Singh was also investigated alongwith two other independent witnesses under Section 67 of the Cr.P.C . The call details of PCO telephone no. 231468 to the telephone no. 32246 were also detected. Similarly, again the trial court had held that the prosecution witness no. 2 Kaushal Kant Mishra has proved the statement of Vinod Singh under Section 67 of the NDPS Act.
26. On argument being raised that independent witnesses to the recovery memo were never produced and statements of official witness to the recovery memo are at variance during cross-examination and that the departmental witnesses would be interested witnesses coupled with the fact that the independent witnesses were not produced and the discrepancies were to the extent that cumulative effect of these discrepancies would be fatal to prosecution case, the trial court held that since accused Vijay @ Pyare Lal in his statement recorded under Section 67 of the Act, 1985 made a confessional statement that contraband belonged to Vinod Kumar and that he was being paid 2,000/- per month in lieu thereof would be read against the accused persons and in holding so, the trial court has relied upon the judgment of the trial court in the case of Kanhaya Lal v. Union of India (supra).
27. It is relevant to quote paragraphs 21,22,23 and 43,44,45 of the above judgment (supra) here that run as under:
"21. Mr. S.K. Gambhir, learned Senior Advocate, contended on behalf of the appellant, Kanhaiyalal, that the High Court had incorrectly stated the law regarding statements made under Section 67 of the NDPS Act before officers empowered under Section 42 thereunder. It was his specific case that once the appellant had been summoned in an inquiry under Section 67 of the aforesaid Act and was placed under arrest, any statement made by him thereafter would be hit by the provisions of Sections 24 to 27of the Indian Evidence Act, 1872
22. Apart from the above, Mr. Gambhir also submitted that after making the statement in terms of Section 67 of the NDPS Act the appellant had retracted such statement and in the absence of corroborative evidence, the said retracted statement/confession could not be relied upon in order to convict the appellant. Furthermore, there was no independent evidence to corroborate the retracted confession, which fact had weighed with the trial court in acquitting the appellant.
23. Mr. Gambhir submitted that although from the arrest Memo it would be clear that Kanhaiyalal was arrested on 8.6.1997 at 5.30 p.m., he was produced before the Magistrate on 9th June, 1997, and on the same day he made an application in writing to the Court that his signature had been forcibly obtained on blank papers under threat that if he did not sign he would be involved in other serious cases and the same were subsequently used for preparing statements under Section 67 of the aforesaid Act as if the same had been voluntarily made by him. Mr. Gambhir submitted that the appellant had already been arrested and detained in custody when the statement under Section 67 of the NDPS Act was recorded and, accordingly the same came within the mischief of Sections 24 to 27 of the Evidence Act 43 The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargavas case (supra). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence.
44. In addition to the above, in the case of Raj Kumar Karwal v. Union of India and others (1990) 2 SCC 409, this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not police officers within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view.
45. Considering the provisions of Section 67 of the N.D.P.S. Act and the views expressed by this Court in Raj Kumar Karwals case (supra), with which we agree, that an officer vested with the powers of an Officer-in-Charge of a Police Station under Section 53 of the above Act is not a Police Officer within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the N.D.P.S. Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the N.D.P.S. Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act"
(emphasis added)
28. The above view has been expressly overruled by the Supreme Court in its judgment in Toofan Singh's case (supra). The legal position now that stands is that the statement under Section 67 of the Act stands hit of Section 25 of the Indian Evidence Act, 1872 in view of paragraph 155 of the Toofan Singh's judgment (supra).
29. Applying the legal pronouncement in Toofan Singh (supra) wherein judgment of Kanhaiya Lal (supra) has been overruled, the finding returned by the trial court placing reliance upon said judgment of Kanhaiya Lal holding that confessional statement of the accused persons to be having evidenciary value to treat the same as conclusive proof of the guilt, is clearly rendered unsustainable and, therefore, conviction and sentence of the accused appellants deserves to be set aside on this ground alone.
30. However, here I find it necessary to deal with argument of learned Advocate Sri Pandey appearing for the department. Sri Pandey strenuously argued that even if statement under Section 67 of the Act is not a conclusive proof but it cannot be brushed aside altogether in the face of other material evidence. He argues that police submits a chargehseet on the basis of evidence it has obtained already during investigation including the statement of the witnesses under Section 161 and the trial court is hide bound in law to appreciate the evidence, test it and then proceed to record finding of conviction or acquittal. He has taken the plea of Section 30 of the Evidence Act as well.
31. Placing reliance upon the judgment of the Supreme Court in Gian Chand and Others v. State of Haryana,2013 AIR (SC) 3395, Sri Pandey has argued that one who takes plea of false implication only, it would not amount to rebuttal of the statutory presumption. He argues that since accused arrested at Allahabad failed to give any plausible explanation as to why plywood boxes should not have been taken to be in his possession as he was standing near by the boxes at a certain steps distance and that he failed to offer any explanation for being at Allahabad. There is valid presumption in law that contraband or article was recovered from his possession. In other words it is a conscious possession to raise the plea of culpable mental state. Learned counsel has relied upon paragraph 11,12,13 and 14 of the Gian Chand and Others (supra) that are reproduced hereunder:
"11. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 observing as under:
"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses." (Emphasis supplied) (See also: Ravinder Kumar Sharma v. State of Assam & Ors. , AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181)
12. The defence did not put any question to the Investigating Officer in his cross-examination in respect of missing chits from the bags containing the case property/contraband articles. Thus, no grievance could be raised by the appellants in this regard.
13. The appellants were found travelling in a jeep at odd hours in the night and the contraband material was found. Therefore, the question arises whether they can be held to have conscious possession of the contraband substances.
This Court dealt with this issue in Madan Lal & Anr. v. State of Himachal Pradesh AIR 2003 SC 3642, observing that Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences and penalties for possession of such articles. Undoubtedly, in order to bring home the charge of illicit possession, there must be conscious possession. The expression ''possession' has been held to be a polymorphous term having different meanings in contextually different backgrounds. Therefore, its definition cannot be put in a straitjacket formula. The word ''conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession in a given case need not be actual physical possession and may be constructive i.e. having power and control over the article in case in question, while the person to whom physical possession is given holds it subject to that power or control. The Court further held as under:
"Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."
14. From the conjoint reading of thep rovision of Section 35 and 54 of the Act, it becomes clear that if the accused is found to be in p ossession of the contraband article, he is presumed to hve committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise.
(Emphasis added)
32. Still further, citing the judgment of Jarnail Singh v. State of Punjab (2011)1 SCC (Cri) 1191 Sri Pandey has heavily placed reliance upon paragraph nos. 11 and 12 of the judgment that run as under:
"11. The first submission of Mr. Ujjal Singh, learned counsel, is that the appellant has been falsely implicated. We are unable to accept this submission. Merely because the prosecution has not examined any independent witness,would not necessarily lead to the conclusion that the appellant has been falsely implicated. It was clearly a case where the police personnel had noticed the odd behaviour of the appellant when he was working towards them on a path which led to Village Mirzapur. It was the display of hesitation by the appellant on sighting the police party that Satpal Singh (PW5) became suspicious. On seeing the police personnel, the appellant tried to run away from the scene. It was not a case where the prosecution has claimed that the appellant was apprehended on the basis of any earlier information having been given by any secret informer. It was also not a case of trap. In such circumstances, it would not be possible to hold that the appellant has been falsely implicated.
12. The prosecution has offered a plausible explanation with regard to non joining of the independent witnesses. It was clearly stated by PW5 that the path on which the appellant was apprehended was not frequently used by the public. I fact, efforts were made to bring a member of panchayat or Sarpanch of the village. However, the Head Constable Baldev Singh who had been sent, reported that none of the villagers were prepared to join as independent witnesses. This reluctance on the part of the villagers is neither strange nor unbelievable. Generally, people belonging to the same village would not unnecessarily want to create bad relations/enmity with any other villager. Especially when such a person would be feeling insecure, having been accused of committing a crime."
33. The above legal positions do stand to reason but question is, whether this proposition is attracted in the setting of facts of the present case where one officer says that he landed at 5:00 pm at Allahabad in the month of June during sunlight and the other officer of the same team says he arrived in the night and quite interestingly both came to Allahabad as a team. The officer preparing the recovery memo says that 20 boxes were recovered from the gate of the transport company and every exercise was carried out there itself whereas other officer of the team says that the contraband was filled in jute bags and was taken inside the transport company on the weighing scale of the company. None of the officers could disclose as to where they stayed with huge quantity of ganja for two days in Allahabad and except transportation by truck, nothing more can be deciphered from their statements as to how they managed the entire contraband first be stored and kept safely at Allahabad for almost 72 hours and then transportation thereof to Varanasi. All those above facts have come during cross examination of crucial prosecution witnesses.
34. The credibility of the recovery is not impeached by simple denial of the accused persons in the statement recorded under Section 313 Cr.P.C but variance in statements and cross-examinations of the prosecution witnesses in the present case have hit the the prosecution theory of search and seizure of goods at Allahabad and thus quite seriously questioned the entire credibility of the recovery and, therefore, in such circumstances a blind reliance upon confessional statement under Section 67 of the Act could not have been taken recourse to, to bring home the charge. The statutory presumption as sought to be argued by learned counsel for the department to have stood raised in the present case does not stand to reason either. The word possession has been taken to be a polymorphous and so it may vary in its form to robe it in the cloth of statutory presumption, provided of course the persons/ officers who are in the helm of affairs are not quite substantially at variance in their respective testimonies in the court of law.
35. Similarly, again the principle laid down in the case of Jarnail Singh v. State of Punjab (supra) can also not come to rescue of the prosecution in the present case because the trial court in the present case has basically proceeded to convict the appellants on the basis of their respective confessional statements recorded under Section 67 of the Act and it is in the light of that impugned finding alone, this court does not find that the documents recovered from possession of the Vijay Kumar would alone lead to the recovery of contraband, as such. Factually also case of search of independent witnesses to witness the recovery and even after persuasion no one agreeing to the same, is not the case here. In the considered opinion of the Court recovery of contraband from the possession of the appellants becomes doubtful. 20 bags are lying on road at 5:00 pm in the evening in the month of June, a person standing nearby so casually, searching for a conveyance, almost like giving open offer to NCB or police to arrive especially in the circumstances when he knew that those boxes were full of ganja, does not appeal to reason at all and at least it can not appeal to reason even of man of ordinary prudence.
36. The judgment in the case of Madan Lal and Another v. State of Himachal Pradesh, 2003 (47) ACC 763 is also not attracted in the setting of facts of the present case.
37. In so far as the argument regarding applicability of Section 30 of the Indian Evidence Act, 1872 (Evidence Act) is concerned, suffice it to say that the parameters as given under the Section are not met in the facts of the present case. A conjoint reading of the provisions as contained under Section 24 to Section 30 of the Evidence Act shows that most relevant of the sections are Sections 25, 26 and 27 to be read and applied before advantage of Section 30 is given to the prosecution. While Section 25 specifically provides that the confession made to the police officer shall not be proved against the person accused of an offence, Section 26 says confession of the accused in custody, shall not be proved except when made before a Magistrate, against such person and a bare reading of Section 27 indicates of treating the statement of accused in components qua admissible and inadmissible portion of such statement given to the police, and the component that relates to immediate cause of discovery of arms or articles would only be legal evidence and admissible in law in case if recovery is proved of such arms or articles.
38. In the setting of facts of the present case qua knowledge and recovery of contraband, nothing has come either in the recovery memo or in the statement of the intelligence officer that it was at the pointing out of the accused Vijay Kumar @ Pyare Lal that the boxes belonging to Vinod Kumar were traced. It is not the case at all that it is at accused's pointing the Intelligence Officer arrived at the sight of recovery and had thus recovered the same so as to track out and split that part of accused's statement which may be made admissible from the rest of it.
39. In the present case the situation is rather otherwise; the information was received from the third source and the accused Vijay Kumar @ Pyare Lal had been interrogated while he was standing at a place quite nearby those boxes.
40. It is interesting to notice here a crucial fact that Intelligence Officer had apprised the employees of transport company who were later taken as independent witnesses of the recovery memo and signed the same, much before the recovery of plywood boxes carrying the contraband.
41. Statement of accused Vijay Kumar is recorded after the boxes were seized and thereafter upon being interrogated he confessed that he knew that those boxes were full of ganja. So there is nothing from where the statement of the accused Vijay Kumar @ Pyare Lal can be split up into two components as admissible and inadmissible part of it. However, it is very much clear that in view of Section 25 and 26 of the Act, 1872 confession before the Intelligence Officer now in view of judgment of Toofan Singh (supra) cannot at all be proved and used against accused persons.
42. Thus, the recovery of the contraband in the present case is not a consequence of the information given by the accused at all to attract the applicability of Section 27 of Evidence Act, inasmuch as, the contraband being already seized and, thereafter, the statement recorded of the accused in the presence of the intelligence officer, cannot be taken as voluntary statement to robe it with credibility. In such circumstances, therefore, the presumption if any, cannot be raised upon any portion of the statement of the accused within the meaning of Section 27 of the Evidence Act, which is an exception to the general provisions of Section 25 and 26 of the Evidence Act.
43. In such above facts and circumstances, Section 30 of Evidence Act cannot be taken aid of to bring home the charge as is sought to be argued and so the argument qua applicability of Section 30 of the Evidence Act in the present case, is also rejected.
44. Coming to the second ground of challenge qua non- compliance of Section 52-A, it has been vehemently urged by learned Senior Advocate appearing for the appellants that report of the laboratory fully demonstrate vide exhibits A-1 to A-31 that in all the envelops in which sample was sent to the tune of 25 grams vide each envelope was found less than half in quantity in the laboratory when opened for testing and that creates doubt about the sample being same one as was claimed to be collected from the jute bags and sent for laboratory examination.
45. Learned counsel has argued that in order to remove all these doubts compliance of Section 52-A of the Act, 1985 becomes all the more necessary and mandatory because if the application is moved before the Magistrate, he passes an order for collection of representative samples and an inventory is prepared in presence of the Magistrate, photographs of such drugs or substance are duly certified by the Magistrate and the representative samples are drawn so that in case if any doubt is cast qua the reports and the samples sent for said purpose, it could be matched with representative sample to bring home the guilt and even otherwise it is argued, if representative sample is there, then there will be no further need to produce the entire original material.
46. Learned Senior counsel appearing for the appellants has argued that it is prosecution's case that since material was in huge quantity and stored in as many as 20 bags and so the same could not be produced in Court and under such circumstances in the absence of any representative material it cannot be said that sample collected was the same as was stored in sealed gunny bags. It is also argued that though a report had been prepared on 23.12.2005 after more than two years of the incident but that report was not even proved. Even though physical verification report not proved in Court, it clearly states that gunny bags were in a sealed condition in the malkhana but at several places they were laciniated and the material was coming out of the same and so no verification of weight and exact material could be done except the record maintained in the form of register in the malkhana.
47. Thus learned counsel for the appellant has further argued that there has been no physical verification of the material as contemplated under section 52-A of the Act, 1985. He has placed reliance upon judgment of the Mohinder Singh (supra), in which vide paragraph 10 to 13, Court has held thus:
"10. So far as the contention regarding production of the contraband seized from the accused, in his evidence, Harbhajan Singh (PW-3) stated that on 01.05.1998, he produced the sample parcels and the case property parcels with the seal and the sample seals before the Judicial Magistrate, Ludhiana and the Magistrate has recorded the seals tallied with the specimen impression. Harbhajan Singh (PW-3) further stated that after return of the samples and the parcels from the court, the same were lodged by him to the Malkhana on 01.05.1998 itself. Baldev Singh (PW-5) has not produced Register No. 19 maintained in the Malkhana to show the relevant entry in Register No. 19 as to deposit of the case property in the Malkhana. Oral evidence of Harbhajan Singh (PW-3) and Baldev Singh (PW-5) as to the deposit of the contraband seized from the accused with Malkhana is not corroborated by the documentary evidence namely the entry in Register No. 19.
11. After referring to the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the trial court in para (14) of its judgment has recorded the finding that no order of the Magistrate to prove the production of the contraband before the Magistrate was available on the file. After recording such observation, the trial court held that the oral evidence regarding production of the case property before the Magistrate was not trustworthy and not acceptable. In the absence of the order of the Magistrate showing that the contraband seized from the accused was produced before the Magistrate, the oral evidence adduced that the contraband was produced before the Magistrate cannot form the basis to record the conviction.
12. For providing the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband.
13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527, this Court reiterated the necessity of production of contraband substances seized from the accused before the trial court to establish that the contraband substances seized from the accused tallied with the samples sent to the FSL. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under:-
"10. On the other hand, on a reading of this Court's judgment in Jitender v.State of M.P. (2004) 10 SCC 562, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok v. State of M.P. (2011) 5 SCC 123, this Court found that the alleged narcotic powder seized from the possession of the accused was not pdoduced before the trial court as material exhibit and there was not explanation for its non production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant. "
48. Learned counsel for the appellant has cited above authority looking to two obvious facts of this case:
a. a sample that was sent as S-1 to the laboratory for examination on opening , reported to have been found less than half; and b. the contraband that was seized from the spot on 3rd June, 2002 and was submitted for safe custody in the malkhana on 5th June, 2003, was never produced in Court.
49. Learned counsel for the appellant has argued that in the absence of the proof of the original contraband in Court it would always lead to question the credibility of the sample, moreso in the face of the fact that quantity of the sample opened in the laboratory was found less than half of what was sent in all the samples packed in a paper envelop. Thus he argues that link evidence is quite missing between the search seizure of the contraband and the same material stored in jute bags and the material sent for laboratory examination.
50. Learned counsel for the appellant has argued that safeguards that have been provided under the Act, which incorporate very stringent measures in terms of punishment and sentence, require certain mandatory procedures to be followed in order to rule out even remotest possibility of doubt. Besides above he has also argued that where a thing is required to be done under the Act in a particular manner then that thing is required to be done in that manner alone. No administrative or even quasi judicial discretion can be permitted to be exercised to bye pass the procedure otherwise there would be no rule of law and the procedure would become keptive of administrative and judicial conveniences and at times even of whims.
51. In support of his above argument, learned Advocate has also relied upon the judgment of the Apex Court in the case of Noor Aga (supra), on the issue of non production of original material in court proceedings. Learned counsel for the appellant has also relied upon the judgment of Supreme Court in the case of Jitendra and Another v. State of M.P. Air,2003 SC 4236.
52. To counter the above arguments of learned counsel for the appellant and further the above authority relied upon by the learned counsel, Sri Pandey appearing for the State has placed reliance upon judgment of Supreme Court in the case of Dehal Singh v. State of Himachal Pradesh 2010 Law Suit (SC) 529, in which vide paragraph nos. 11,21 and 22 it has been held as under:
"11. We do not find any substance in the submission of Mr. Rai and the decisions relied on are clearly distinguishable. The vehicle was intercepted and searched on a highway and it has come in the evidence of PW.16, Brijesh Sood that he had sent PW.3, Churamani to bring weighing scale and weight from the grocery shop of PW.5, Ram Lal. From the evidence of PW.3, Churamani and PW.5, Ram Lal, the grocery shop owner it is evident that the weighing scale and the weight came from the grocery shop. It is common knowledge that weighing scale and weight kept in the grocery-shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, in the facts and circumstances of this case, is not of much significance. Sample was taken by a common weighing scale and weight found in a grocery shop, whereas the weight in the laboratory recorded with precision scale. This would be evident from the fact that the weight of the sample recorded in the laboratory was 65.5606 gms. In this background, small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story.
21. We do not find any substance in this submission of Mr. Mishra. Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfullness or otherwise of the case of prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. Appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements. However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross-examination. Therefore, in our opinion the plea of the appellant Dinesh Kumar that he had taken lift in the car is not fit to be accepted only on the basis of the statements of the appellants under Section 313 of the Code of Criminal Procedure.
22. Both the appellants have been found travelling in the car from which Charas was recovered and, therefore, they were in possession thereof. They were knowing each other. They were not travelling in a public transport vehicle. Distinction has to be made between accused travelling by public transport vehicle and private vehicle. It needs no emphasis that to bring the offence within the mischief of Section 20 of the Act possession has to be conscious possession. Section 35 of the Act recognizes that once possession is established the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. Further the person who claims that he was not in conscious possession has to establish it. Presumption of conscious possession is further available under Section 54 of the Act, which provides that accused may be presumed to have committed the offence unless he accounts for satisfactorily the possession of contraband. The view which we have taken finds support from a judgment of this Court in the case of Madan Lal and another vs. State of H.P., 2003 (7) SCC 465, wherein it has been held as follows:
"26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."
53. In order to appreciate rival submissions, it is necessary to test their respective arguments on facts of the case in hand. Now coming back to the facts relating to the sample tested by the laboratory and report sent and placed before the Court in the present case that have been exhibited as A-10 to A-31, the sample in A10 was weighed as 10.8. grams, A11- 5.8 grams, A12- 10.7 grams, A13- 10.7 grams, A14- 11.3 grams, A15- 11.8 grams, A16 - 6.1 grams, A17- 9.8 grams, A18- 14.3 grams, A19- 8.8 grams, A20 -8.1 grams, A21- 10.2 grams, A22- 14.9 grams A23 -8.6 grams, A24 - 8.1 grams, A25 5.3 grams, A26- 13.1 grams, A27 - 5.5 grams, A28 - 14.1 grams, A29 - 9.2. grams, A30 - 7.3 grams, and A31 - 13.3 grams. The sample was admittedly dispatched on 5th June, 2003 and was received in the laboratory on 10th June, 2003, the sample was opened on 2nd July, 2003 for conducting the test and weighed accordingly and report was prepared on 16th July, 2003. The description of substance was ganja weighed as 25 grams in each sample. The question, therefore, is that whether the sample which was to the tune of 25 grams could have gone less than half, if opened within 25 days. Interestingly in some of the reports, the sample received has been found less than 1/3rd of the exact weight given in the recovery memo as well as penned on the sealed envelop. It seems as if contraband sample got evaporated substantially in less than 25 days and for which no explanation has been offered except a very lame excuse that it might have further dried up.
54. It is in this above background that preparation of the report under Section 52-A becomes quite significantly important. In the present case the report is a part of the record of the trial court, which is in the form of report dated 22.12.2005 of the Judicial Magistrate, Court No. 2 Varanasi, which recites that in compliance of the order of Special Judge NDPS Act/Additional Sessions Judge Allahabad in Sessions Trial no. 188 of 2003 dated 3rd December, 2005, he visited the godown of the department by the vehicle provided by NCB (National Control Board) at Varanasi and carried out inspection. As per the report he looked into page no.10 of the Seized Goods Register, in which there was an entry regarding seized contraband of 630 kg weight, 20 plywood boxes and the contraband in 22 gunny bags and that samples were taken to the tune of 25 grams from each bag as sample to be sent for the laboratory and additionally also. He also reported to have perused yellow colour envelop and all those were in a sealed condition claimed to be second sample of contraband material marked as S-2 and he then got opened the locked door of the godown and inside there he found 22 plywood boxes with mark Low cost Tea Leaf and Dhansri to Dehradun via Allahabad. 22 gunny bags were also found and seal upon those bags intact. However, gunny bags were got lacianated at several places and that ganja was coming out of them and was found scattered on floor. Regarding verification of the weight of contraband, the report said it was not possible to do that and, therefore, nothing was reported about exact weight of the contraband claimed to 630 kg. Report is stated to have been prepared confidentially of which neither intelligence officer was aware nor, the accused persons qua verification done and preparation of report.
55. It is argued on behalf of the department that since this report was confidential report, it did not require to be marked as exhibit nor, could it be led as an exhibit. It is further argued that this report was in compliance of an order passed by the court on an application moved by the department under Section 52-A of the Act, 1985 and therefore, there has been compliance of the mandatory provision and no advantage can be given in this matter to the accused persons because a question was put to the accused regarding this very report as well under Section 313 Cr.P.C. to which they simply denied.
56. In order to test the argument of learned Advocate appearing for the department that there was compliance and that of argument of appellant that there was no compliance of the mandatory provisions, it is necessary to have re-look of the provisions as contained Section 52-A of the NDPS Act. Section 52- is reproduced hereunder:
"[52A. Disposal of seized narcotic drugs and psychotropic substances.
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence]."
(emphasis added)
57. From bare reading of the aforesaid provisions, it is quite apparent that detailed procedure is prescribed for preparation of report under Section 52A, the correctness of the entry was to be certified; the photographs of the drugs or substances to be taken and needed certification thereof as well; representative samples have to be drawn of such drugs or substances in the presence of such magistrate certifying correctness of any list of sample that was drawn.
58. In the present case an application was moved by the intelligence officer before the trial court on 15.10.2004 with following prayer.
"vr( Jheku th ls izkFkZuk gS fd mijksDr eqdnek eky Lokid ,oa eu izHkkoh inkFkZ dh /kkjk 52&, /kkjk 52 , ¼2½ ,u Mh ih ,l ,DV 1985 ds vurxZr layxu fooj.k rkfydk dks izekf.kr djrs gq, eky eqdnek dks fu;ekuqlkj dk;Zokgh djrs gq, fu"ikfnr ,oa O;;u djus dh vkKk iznku djsa rkfd U;k; gks A"
"Accordingly, it is prayed that the court may be pleased to certify the details of Articles prepared under Section 52A (2) of NDPS Act, 1985, and order for disposal of the seized articles.
(English translation by this Court)
59. It is upon this above application an order was passed on 3.12.2005 by the trial court but while report was prepared in compliance of the said order on 22.12.2005 none of the procedures as prescribed for undere sub section 2 (a) (b) and (c) of NDPS Act, 1985 were followed as no representative sample was collected so as to do away with procedure of production of material before the Court to test the veracity of the lab report on the ground that it was this very material from which samples were taken. In fact, there is no certification of the material as required under Section 52-A of the Act. What is further interesting to notice is that during pendency of this appeal itself, an application was moved for disposal of the material under Section 52-A of the Act and upon which a detail order was passed by this Court which is reproduced hereunder:
"Learned counsel for the applicant as well as learned counsel for the Union of India, Sri Sanjay Kumar Singh present.
Union of India through Narcotics Control Bureau, Lucknow has moved a Criminal Misc. Application No. 209337 of 2015 in the present appeal under Section 374(2) of Cr.P.C., whereby it is prayed that a suitable order or direction may be issued and permission be granted for destruction/disposal of 630 Kg. of Ganja (case property of this case), to the Drug Disposal Committee/authorities of Narcotics Control Bureau, Lucknow.
It is submitted by the learned counsel for the applicant that Investigating Officer was present before the trial court and he has specifically stated that case property has already been disposed off and this has been observed by the trial court in its judgment also, and it is further submitted that once the property has been disposed off under Section 52-A, no question arises for its disposal again.
Dispelling the arguments submitted by the learned counsel for the applicant, it is submitted by the learned counsel for the Union of India that the case property is still intact and is liable to be disposed off as per directions given by the Apex Court. It is further submitted that as per direction of the trial court to the CJM concerned, a proceeding under Section 52-A was drawn and in that CJM concerned only checked the recovered article and the said article was not disposed off under Section 52-A of the Act.
It is submitted by the learned counsel for Union of India that it is clearly stated by the Investigating Officer before the trial court that it is not possible to produce the case property before the court as it contains several packets and in large quantity.
From the record, it is ample clear that no clear cut order is there to dispose off the contraband as provided under Section 52-A of the Act, although Section 52-A of the Act has been used by the trial court in its judgment, but the same has not been complied with, rather only CJM was directed to check the availability of the contraband and same was checked and compliance report was sent to the trial court.
In the circumstances, I do not find any ground for dismissing application of learned counsel for Union of India and same is liable to be allowed and learned counsel for appellant has failed to give any reason as to what prejudice will be caused to him by the disposal off the case property. The trial has already been concluded before the trial court and case property is not further required for any purpose and any disposal of such contraband as provided under Section 52-A of the Act is essential.
Hon'ble Apex Court in the case of Union of India Vs. Mohanlal and another, reported in 2016(93) ACC 546, also issued direction regarding disposal of such type of drugs, which are being re-circulated in the market.
This application is moved just to follow the procedure given in Section 52-A of the N.D.P.S. Act, and in the circumstances the application can very well be allowed.
In view of the above, Criminal Misc. Application No. 209337 of 2015 is allowed with following directions:-
(a) liberty is being given to the respondent - Union of India to move a proper application along with certified copy of the order before concerned Magistrate/Committee/Special Judge, under Section 52 A of the N.D.P.S. Act, which application shall be considered and disposed off by the concerned Magistrate/Committee/Special Judge within a period of three weeks from the date of filing of such application in accordance with law;
(b) liberty is also given to the concerned Magistrate/Committee/Special Judge, to consider the request of Union of India for destroying of confiscated drugs in accordance with law after following the procedure as established under the Act and relevant circulars, which may be produced before concerned Magistrate/Committee/Special Judge.
With the aforesaid direction, the application is disposed off finally.
List the matter for final hearing of appeal in due course. "
60. Thus, it is quite apparent that till conclusion of the trial, no compliance of Section 52-A of the Act had taken place and a very lame excuse was taken that original material kept in malkhana could not be produced because of its huge quantity and excuse was tried to be taken of the report of the Judicial Magistrate to prove the credibility of the laboratory report.
61. Sri Pandey, learned counsel appearing for the department defending the prosecution case on the above issue has submitted that non production of the contraband which was seized and kept in a sealed cover would not be so fatal to the prosecution case in the light of Supreme Court judgment in the case of State of Rajasthan v. Sahi Ram, AIR 2019 (SC) 4723 in which vide paragraph 16 and 17, the Court has held thus:
"16. Turning to the facts in the present matter, the evidence of PW15 Surender Singh shows that from and out of 7 bags of poppy husk, samples weighing about 500 grams were taken out of each bag. Out of these 3500 grams thus taken out, two samples of 500 grams were independently sealed while rest 2500 grams were also sealed in a separate pouch. These samples were marked A, B and C respectively. The bags were also independently sealed and taken in custody and Exbt-5 seizure memo which recorded all these facts was also signed by the accused. We have gone through the Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016 State of Rajasthan vs. Sahi Ram cross-examination of the witness. At no stage even a suggestion was put to the witness that either the signatures of the accused were taken by fraud, coercion or mis-representation or that the signatures were not of the accused or that they did not understand the purport of the seizure memo. It would therefore be difficult to even suggest that the seizure of contraband weighing 223 kgs was not proved by the prosecution. In our view this fact stood conclusively proven.
17. If the seizure of the material is otherwise proved on record and is not even doubted or disputed the entire contraband material need not be placed before this Court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out. "
(Emphasis added)
62. In the considered opinion of the Court in the first instance when the procedure is laid down for a particular purpose that procedure needed to be followed in the manner prescribed for. In the absence of compliance of procedure alleged report prescribed under Section 52-A of the Act cannot be approved of.
63. There is a legal maxim "Expressio unius est exclusio alterius" means mention of one is the exclusion of another meaning thereby, if statute provides for a particular procedure/ manner to carry out an exercise to achieve the end result as per the Act, then it should be done in that manner alone. No deviation to the prescribed course of procedure, therefore, is permissible in law. Supreme Court has clearly held in the case of Dhanajaya Reddy v. State of Karnataka, (2001) 4 SCC 9 that if the procedure as prescribed for and the thing as required to be done in a manner that should be done in that manner alone. Vide 25 and 26, the Court has held thus:
"25. We examined the matter with a different angle as well by considering to see the admissibility of said confessional statement not as a judicial confession but as extra judicial confession made to PW50. We found it difficult to treat Exhibit P-77 as extra-judicial confession of A4 made to PW50. Confessions in criminal law have been categorised to be either judicial or extra-judicial. The prosecution is obliged to refer and rely on the alleged confession of the accused in any one of the aforesaid categories. As extra-judicial confession cannot be treated as judicial confession, similarly an alleged judicial confession proved to have not been legally recorded cannot be used as extra-judicial confession. Otherwise also such an approach would result in dragging the judicial officers into uncalled for and unnecessary controversies. In Nazir Ahmad v. Emperor [AIR 1936 PC 253] it was observed, which we approve, that:
"....it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under S.162 of the code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under S.164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever."
26. Relying upon Nazir Ahmad's case and applying the principles laid down in Taylor v. Taylor [(1876) 1 Ch.D 426] this Court in Singhara Singh's case (supra) held:
"The rule adopted in Taylor v. Taylor [(1876) 1 Ch.D 426] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S.164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S.164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confession made to him."
Emphasis added
64. Secondly when the weight of sample received in the laboratory for the test vary substantially from what is mentioned on the recovery memo prepared after the sample is collected and sealed and mentioned as sample as well, non-compliance of the prescribed procedure would raise adverse cumulative effect adding upto the discrepancies making it fatal to the prosecution case.
65. In the case of Noor Aga (supra) following contentions were raised by the counsel appearing for the accused appellant in the said case.
"CONTENTIONS Ms. Tanu Bedi, learned counsel appearing on behalf of the appellant, in support of this appeal, submits:
(i) The provisions of Sections 35 and 54 of the Act being draconian in nature imposing reverse burden on an accused and, thus, being contrary to Article 14 (2) of the International Covenant on Civil and Political Rights providing for `an accused to be innocent until proved guilty' must be held to be ultra vires Articles 14 and 21 of the Constitution of India.
(ii) Burden of proof under the Act being on the accused, a heightened standard of proof in any event is required to be discharged by the prosecution to establish the foundational facts and the same having not been done in the instant case, the impugned judgment is liable to be set aside.
(iii) The prosecution having not produced the physical evidence before the court particularly the sample of the purported contraband materials, no conviction could have been based thereupon.
(iv) Independent witnesses having not been examined, the prosecution must held to have failed to establish actual recovery of the contraband from the appellant.
(v) There being huge discrepancies in the statements of official witnesses in regard to search and seizure, the High Court judgment is fit to be set aside.
(vi) The purported confessions of the appellant before the customs authorities are wholly inadmissible in evidence being hit by section 25 of the Indian Evidence Act, as Section 108 of the Customs Act should be read in terms thereof coupled with sections 53 and 53A of the Act. "
66. Then arguments advanced on behalf of State were also referred to which run as under:
"Mr. Kuldip Singh, learned counsel appearing on behalf of the State, on the other hand, would contend:
(i) The learned Trial Judge as also the High Court upon having examined the materials brought on records by the prosecution to hold that the guilt of the accused sufficiently has been established in the case, this Court should not interfere with the impugned judgment.
(ii) Appellant having exercised his option of being searched by a Gazetted Officer; and the legal requirements of Sections 42 and 50 of the Act must be held to have been fully complied with. In any event, search and seizure of the carton did not attract the provisions of Section 50 of the Act.
(iii) Despite some discrepancies in the statements of the witnesses as regards recovery, the same cannot be said to be a vital flaw in the case of the prosecution so as to make the impugned judgment unsustainable. The learned Trial Judge as also the High Court had considered the practices prevailing in the Customs Department for the purpose of appreciating the evidence brought on record, and having recorded their satisfaction with regard thereto, the impugned judgments do not warrant any interference.
(iv) Any confession made before the customs authorities in terms of Section 108 of the Customs Act is not hit by Section 25 of the Indian Evidence Act and the same, thus, being admissible in evidence could have been relied upon for the purpose of recording a judgment of conviction. "
67. Thus after referring to the above quoted judgments of both sides and having over view of the statutory provisions of the NDPS Act, 1985, the Court referring its earlier judgment in the State of Kerala and Others v. Kurian Abraham (P) Ltd. And Another (2008) 3 SCC 582, observed:
"The last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin were also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act.
The fate of these samples is not disputed. Two of them although were kept in the malkahana along with the bulk but were not produced. No explanation has been offered in this regard. So far as the third sample which allegedly was sent to the Central Forensic Science Laboratory, New Delhi is concerned, it stands admitted that the discrepancies in the documentary evidence available have appeared before the court, namely:
i) While original weight of the sample was 5 gms, as evidenced by Ex. PB, PC and the letter accompanying Ex.PH, the weight of the sample in the laboratory was recorded as 8.7 gms.
ii) Initially, the colour of the sample as recorded was brown, but as per the chemical examination report, the colour of powder was recorded as white.
We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.
We cannot but also take notice other discrepancies in respect of the physical evidence which are:
i) The bulk was kept in cotton bags as per the Panchnama, Ex PC, while at the time of receiving them in the malkhana, they were packed in tin as per the deposition of PW 5.
ii) The seal, which ensures sanctity of the physical evidence, was not received along with the materials neither at the malkhana nor at the CFSL, and was not produced in Court.
Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant.
This aspect of the matter has been considered by this Court in Jitendra v. State of U.P. [(2004) 10 SCC 562], in the following terms :
"In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS, Act."
Several other lacunae in the prosecution case had been brought to our notice. The samples had been kept at the airport for a period of three days. They were not deposited at the malkhana. It was obligatory on the part of the Customs Department to keep the same in the safe custody. Why such precautions were not taken is beyond anybody's comprehension. "
68. And finally the Supreme court held thus:
"CONCLUSION Our aforementioned findings may be summarized as follows:
1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India.
2. However, procedural requirements laid down therein are required to be strictly complied with.
3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant's guilt.
4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution's case must be held to be lacking in credibility.
5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law.
6. The investigation of the case was not fair.
We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. "
(Emphasis added)
69. Again in the case of Vijai Pandey v. State of U.P. (supra) vide paragraph 8 the Supreme Court has held thus:
"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be correlated. The observations in Vijay Jain v.State of Madhya Pradesh, (2013) 14 SCC 527, as follows are considered relevant:"
70. In the present case, I have no reason to doubt that manner in which prosecution has led its evidence and tried to bank upon the same in bringing home the charge and the way the trial court proceeded to presume the correctness of the report dated 23.12.2005 of Judicial Magistrate as compliance of Section 52-A of the Act and then taking extra-judicial confession, Section- 67 of the Act as against the accused persons as a conclusive proof, the conclusions arrived at by it and findings recorded for the same cannot be sustained in law and if are not arrested to hold that conviction as bad, there will be serious miscarriage of justice.
71. Thus second argument advanced by learned counsel for the appellant also deserves to be upheld and conviction deserves to be set aside.
72. Coming to the third argument that there has been no recovery from Vinod Kumar and bare verification of certain calls from PCO of his brother will by itself not amount to a proof of his guilt.
73. It is necessary here to refer to the recovery memo prepared by R.A. Dubey, in which it has clearly come that nothing much less an incriminating one was recovered from his possession and his house. Statements under Section 67 of the Act have come to be recorded to the effect that his confession was that he was involved in the illicit trade/ smuggling of psychotropic substance and contraband confiscated from Allahabad belonged to him and that he also confessed the true name of Vijay Kumar as Pyare Lal.
74 Now what is crucial here are the call details obtained by the prosecution and placed before the Court and exhibited. What is interesting to notice is that it was a PCO that belonged to the brother of the accused and it was meant for the public to make calls. Now calls can be said to have been made from this PCO to Assam, however outgoing calls of those phone numbers on which calls were made from this PCO, could not be obtained because no STD facility was available on those phone numbers. The prosecution has not been able to trace out the relevant talk details so as to test whether these calls were made by the accused himself otherwise further scientific test would have been conducted as to whether the voice recorded was of the accused or not. Anybody could have dialed from that phone number of Assam and anybody could have been kingpin as itwas all between a PCO and phone numbers at Assam. It is not the case of prosecution that PCO was no used by any public man during that period nor, PCO register was there to offer an explanation that no one else except accused Vinod Kumaer used the PCO except the statement of Yashwant Singh recorded under Section 67 of NDPS Act but he was never produced in Court. Thus prosecution it appears, has not tried to ensure that it is Vinod Kumar, the appellant who used to call and that large number of calls were made and received by him to and from Assam and only since confiscated material / contraband was coming from Assam that presumption has been raised that Vinod Kumar had made all those calls and confessional statement was accordingly held needed not further to be proved.
75. In order to test the findings of the trial court vis a vis argument of learned Senior Advocate on this point, it is necessary to refer to the call details that were obtained by the department and certification thereof by the competent authority. Exhibit A-9 is certification from the office of Deputy Commissioner of Customs, Guwahati, which reads as under:
"To The Deputy Commissioner of Customs Dated: 17.07.2003 Subject : Follow up action in seizure case of 630 Kgs Ganja at Allahabad on 02.06.2003.
Sir, As per your directives enquiries has been carried out at Barpeta Road Bongaigaon telephone exchange and the result of the inquiry is furnished below;
1. Telephone Number 03666 256445: This is a WLL number although installed at Barpeta Road, the connection is given from the Bongaigaon telephone Exchange.On enquiry with Bongaingaon Telephone Exchange it was learned that the Number was allotted to one Osman Ali Bhuyan of Village- Borbala, Village No. 140830, Block- Barpeta, P.O.- Barpeta.
However, this WLL no has been disconnected since 15.07.2002 and this particular number had no STD facility, as such dial out details are not maintained by the Exchange.
On verification of the antecedent of Oman Ali Bhuyan, it was found that he is a teacher of repute and originally from a rich back ground.
2. Telephone No. 03666 263266: This telephone number is allotted to a P.C.O. At Barpeta Road owned by one Shri Dhiren Das, Gaugacha, Barpeta Road.
The dial out details for the period 01.03.03 to 31.05.03 has been obtained and are enclosed herewith. The records for the month of June 03 could not be furnished by Telecom authority due to technical failure of the computer system during that period.
3. Telephone No. 03664 225429: This telephone number is allotted in the name of one Shri Subrata Choudhury, Krishna Electrical, Paglastan, Bongaigaon.
As the above telephone number does not have STD facility dial out details are not available with the Bongaigaon Telephone Exchange authority.
Yours Faithfully (M.Purakayastha) Inspector (A/S)"
76. From a bare reading of the certification report, it is clear that no inference can be drawn to raise presumption that these calls were made by Vinod Kumar. A PCO can be utilized by any public person. Certain calls from a particular phone number to a PCO phone number at certain point of time do not and must not connect the accused Vinod Kumar with the crime in absence of any connection of the person of Assam with the crime. It, therefore, can be safely concluded that these call details are by itself not enough to hold Vinod Kumar guilty of the offence under the Act 1985, beyond reasonable doubt.
77 I, therefore, find merit in the third argument of learned counsel for the appellants as well and find no reason to justify the findings returned by the trial court in convicting the appellants.
78. Thus, besides the authority of Supreme Court in the case of Tofan Singh (supra) which applies absolutely to the present case and accordingly the conviction and sentence in question is liable to be held bad, the facts and circumstances of this case do clearly show that evidence for the offences tried are not grounded well and seem to have evaporated clouding the prosecution theory so much so that entire prosecution case has got washed away bit by bit. Resultantly, the divide between the evidence and implication of the appellants in the case is so sharp and deep that long bottom connectivity , if any, is too blurred to be reckoned with. It is rightly said that a thousand culprits may escape but an innocent should not be punished, otherwise, the very sanctity of criminal justice system would be lost and trust and confidence of the people in rule of law would get shakened
79. In view of above, the appeals are allowed. Conviction and sentence of the appellant accused Vijay Kumar @ Pyare Lal in Sessions Trial No. 188 of 2003 (State v. Pyare Lal) under Section 8/20 of the Narcotics Drugs and Psychotropic Substance Act, 1985 passed by Additional District and Sessions Judge, Court No. 24/Special Judge, Allahabad is hereby set aside. Accordingly, the appellant, Vijay Kumar @ Pyare Lal who is already on bail under of the orders of this Court in Criminal Appeal No. 2704 of 2012, his bail bonds are cancelled and sureties are discharged and the appellant is set at liberty. Similarly, conviction and sentence of the appellant accused Vinod Kumar in Sessions Trial No. 188 of 2003 under Section 8/20/27-A of Narcotics Drugs and Psychotropic Substance Act, 1985 passed by Additional District and Sessions Judge, Court No. 24/Special Judge, Allahabad is also set aside and, accordingly, he is set at liberty.
80. Before parting, I may record my appreciation for the assistance of learned counsel for the parties especially to Sri Ashish Pandey, learned counsel appearing for the NCB for his meticulous arguments and that too by way of a fabulous presentation that helped the Court a lot in appreciating legal position in the setting of facts of the present case. Sri Khan also rendered his valuable assistance to the Court.
Date: 19.02.2021 Sanjeev