TaxTMI 
TaxTMI 
2008 (7) TMI 853
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....n Airlines. Appellant arrived at Raja Sansi Airport at about 6 p.m. on 1.08.1997. He presented himself before the authorities under the Customs Act, 1962 (for short "the Customs Act") for customs clearance. He was carrying a carton with him said to be containing grapes. The cardboard walls of the said carton were said to have two layers. As some concealment in between the layers was suspected by one Kulwant Singh, an Inspector of the Customs Department, the appellant was asked as to whether he had been carrying any contraband or any other suspicious item. Reply thereto having been rendered in the negative, a search was purported to have been conducted. Kulwant Singh, who examined himself as PW-1 before the trial court, allegedly asked the appellant as to whether he intended to be searched by a Magistrate or a Gazetted officer of the Customs Department; in response whereto, he exercised his option for the latter, whereupon one Shri K.K. Gupta, Superintendent of the Customs Department and two independent witnesses, Mohinder Singh and Yusaf were sent for. K.K. Gupta disclosed his identity to the appellant as a Gazetted officer working in the Customs Department. The layers of ....
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.... Officer) PW-3 Ashok Kumar- Inspector, Customs Department (Deposited sample) PW-4 Rajesh Sodhi-Deputy Commissioner Custodian of case property from 1-8-97 to 4-897 PW-5 KK Sharma-lnspector Incharge- Malkhana Appellant, in his examination under section 313 of the Code of Criminal Procedure in categorical terms denied that the carton belonged to him. He also retracted from his alleged confession. The learned Additional Sessions Judge by his order and judgment dated 7.06.2000 convicted the appellant under Sections 22 and 23 of the Act and sentenced him to undergo rigorous imprisonment for 10 years and also imposed a fine of Rs. 1 lakh on him. Aggrieved by and dissatisfied with the said judgment and order of the learned Additional Sessions Judge, the appellant filed an appeal before the High Court of Punjab and Haryana. The High Court dismissed the said appeal by a judgment and order dated 9.06.2006. Appellant is, thus, before us. 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, b....
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.... 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. AN OVERVIEW OF THE STATUTORY PROVISIONS Before embarking upon the rival contentions of the parties, as noticed hereinbefore, it is appropriate to notice the relevant provisions of the Act as also the Customs Act, 1962. The purported recovery was made by the Customs Department. In terms of the provisions of the Act they were entitled to make investigations as also file the chargesheet. The Act was enacted to consolidate and amend the law relating to narcotic drugs to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. It was enacted to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and the matters connected therewith. Section 2(xiv) of the Act defines "n....
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....ent for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may be extended to two lakh rupees. The proviso appended thereto, however, empowers the court, for reasons to be recorded in the judgment, to impose a fine exceeding two lakh rupees. Section 35 of the Act provides for presumption of culpable mental state. It also provides that an accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. Section 54 of the Act places the burden of proof on the accused as regards possession of the contraband to account for the same satisfactorily. Section 37 of the Act makes offences cognizable and non-bailable. It contains a non-obstante clause in terms whereof restrictions have been imposed upon the power of the court to release an accused on bail unless the following conditions are satisfied: "(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable gr....
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.... 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 purpose of,- (a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs 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." Indisputably, the proper officers of the 1962 Act are authorized to take action under the Act as regards seizure of goods, documents and things. We may notice Section 110 of the 1962, sub-section (1) whereof reads as under:  ....
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....ished as S.O. 381(E) ), which shall, as soon as may be, after their seizure, be disposed of, having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space; Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), (hereinafter referred to as `the Act'), the Central Government hereby determines that the drugs specified in the aforesaid Notification shall be disposed off in the following manner..." These guidelines under the Standing order have been made under Statute, and Heroin is one of the items as substances listed for disposal under Section I of the Standing Order. Paragraphs 3.1 and 6.1 of the Standing Order read as under: "Preparation of inventory 3.1 After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchnama. Original wrappers shall also be preserved for evidentiary purposes. Certificate of destruction 6.1 A certificate of destruction (in triplicate (Annexure III) containing all the relevant data like godown entry, no., file No., gross and net weig....
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....and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the term "reason to believe" has been used. Such belief may be founded upon secret information that may be orally conveyed by the informant. Draconian provision which may lead to a harsh sentence having regard to the doctrine of "due process" as adumbrated under Article 21 of the Constitution of India require striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the other." Application of international law in a case involving war crime was considered by the Constitutional Court of South Africa in State v. Basson [2004 (6) BCLR 620 (CC)] opining: "The rules of humanitarian law constitute an important ingredient of customary international law. As the International Court of Justice [("the ICJ)] has stated, they are fundamental to the respect of the human person and "elementary considerations of humanity. The rules of humanitarian law in armed conflicts are to be observed by all States whether or not they have ratifie....
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....i; S v. Dladla and others 1999(7) BCLR 771 (CC)} While, however, saying so, we are not unmindful of serious criticism made by the academies in this behalf. In Glanville Williams, Textbook of Criminal Law (2nd Edn.) page 56, it is stated: "Harking back to Woolmington, it will be remembered that Viscount Sankey said that "it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and subject also to any statutory exception". ... Many statutes shift the persuasive burden. It has become a matter of routine for Parliament, in respect of the most trivial offences as well as some serious ones, to enact that the onus of proving a particular fact shall rest on the defendant, so that he can be convicted "unless he proves" it." But then the decisions rendered in different jurisdictions are replete with cases where validity of the provisions raising a presumption against an accused, has been upheld. The presumption raised in a case of this nature is one for shifting the burden subject to fulfillment of the conditions precedent therefor. The issue of reverse burden vis-`-vis the human rights....
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....ction applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged." Lord Steyn stated the law thus :- "Taking into account that section 28 deals directly with the situation where the accused is denying moral blameworthiness and the fact that the maximum prescribed penalty is life imprisonment, I conclude that the appellant's interpretation is to be preferred. It follows that section 28 derogates from the presumption of innocence. I would, however, also reach this conclusion on broader grounds. The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It....
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.... . the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases". In R. v. Hansen [(2007) NZSC 7], while construing Section 6(6) of the Misuse of Drugs Act, 1975 the New Zealand Supreme Court held as under : "In the context of a prosecution for an offence of possession of controlled drugs for the purpose of supply, that reversal of the onus of proof is obviously inconsistent with the aspect of the presumption of innocence that requires the Crown to prove all elements of a crime beyond reasonable doubt. While the Crown must prove to that standard that the person charged was in possession of the stipulated quantity of drugs, the jury can convict even if it is left with a reasonable doubt on the evidence over whether the accused had the purpose of supply of the drugs concerned. Indeed, as Lord Steyn pointed out in R v Lambert, the jury is obliged to convict if the version of the accused is as likely to be true as not." However, in our opinion, limited inroad on presumption would be justified. We may consider the question from another angle. ....
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....ty, is not enough"; for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied `reckless' most nearly covers the case". (emphasis supplied) The said dicta was followed in Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1]. We may, however, notice that the principle of `res ipsa loquitur' has been applied in State of A.P. v. C. Uma Maheswara Rao & Anr. [2004 (4) SCC 399] {see also B. Nagabhushanam v. State of Karnataka (2008) 7 SCALE 716}. The Act specifically provides for the exceptions. It is a trite law that Presumption of innocence being a human right cannot be thrown aside, but it has to be applied subject to exceptions. Independence of judiciary must be upheld. The superior courts should not do something that would lead to impairment of basic fundamental and human rights of an accused. We may incidentally notice a decision of the Privy Council in an appeal from the Supreme Court of Mauritius in The State v. Abdul Rashid Khoyratty, [2006] UKPC 13. In that case, an attempt on the part of the Parliament to curtail the power of the court to grant bail in respect of the Dangerous Drugs Act ....
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....ption of Innocence and Reverse Burdens : A Balancing Duty" published in [2007] C.L.J. (March Part) 142 it has been stated :- "In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice - where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment." The above stated principles should be applied in each case having regard to the statutory provisions involved therein. We may, however, notice that recently in M/s. Seema Silk & Sarees & Anr. v. Directorate of Enforcement & Ors. [2008 (7) SCALE 624], in a case where the constitution....
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....ng indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/- as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of `wider civilization'. The courts must always remind itself that it is a well settled principle of criminal juri....
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....roportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself. In Sheldrake v. Director of Public Prosecutions [(2005) 1 All ER 237] in the following terms: "21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirements of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the pr....
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....he roads" (The Earl of Selkirk 1954, col 567) and Lord Mancroft commented specifically in relation to `being drunk in charge' that "...we should be quite right if we erred on the side of strictness" (Lord Mancroft 1955, col 586). Notwithstanding this historical background it was, of course, open to their Lordships in Sheldrake to interpret section 5(2) as only imposing an evidential burden on the defendant. Lord Bingham referred to the courts' interpretative obligation under the Human Rights Act 1998 s3 as "a very strong and far-reaching one, and may require the court to depart from the legislative intention of Parliament" ([2004] UKHL 43, para 28). However, he must also have had in mind further dicta from the recent judgment in Ghaidan v Godin-Mendoza: "Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention rights" (Lord Nicholls, [2004] UKHL 30, para 19....
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....acknowledged that particular attention should be paid to Parliament's actual intentions (para 33), as had been the case in Sheldrake. In light of the above it is submitted that their Lordships in Sheldrake, as in Brown v Stott [2000] UKPC D3; [2003] 1 AC 681, 711C-D, PC, were entitled to uphold a legal rather than an evidential burden on the defendant and to take into account other Convention rights, namely the right to life of members of the public exposed to the increased danger of accidents from unfit drivers (European Convention on Human Rights and Fundamental Freedoms, article 2). That is, there were sound policy reasons for imposing a reverse legal burden, which will be the subject of further discussion in the second part to this article." Whereas in India the statute must not only pass the test of reasonableness as contained in Article 14 of the Constitution of India but also the `liberty' clause contained in Article 21 of the Constitution of India, in England it must satisfy the requirements of the Human Rights Act 1998 and consequently the provisions of European Conventions of Human Rights. Placing persuasive burden on the accused persons must justify the loss of ....
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....d above into account, these reasons justify the loss of protection which will be suffered by the individual. Given the importance and difficulty of combating counterfeiting, and given the comparative ease with which an accused can raise an issue about his honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the balance of probability that he honestly and reasonably believed the goods were genuine." The same principle applies to this case. CASE AT HAND Confession of the Appellant With the aforementioned principles in mind, let us consider the evidence brought on record by the respondents. We may, at the outset, notice that a fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act. It refers to leading of evidence, production of document or any other thing in an enquiry in connection of smuggling of goods. Every proceeding in terms of sub-section (4) of Section 108 would be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. The enquiry contemplated under Section 108 is for the purpose of 1962 Act and not for the purpose of convi....
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....enting crime. The other view is based on the plain meaning of the expression and on the consideration that the mere fact that an officer who, by no stretch of imagination is a police officer, does not become one merely because certain officers similar to the powers of a police officer are conferred on him." It was pointed out that the power of a Police Officer as crime detection and custom officer as authorities invested with a power to check the smuggling of goods and to impose penalty for loss of revenue being different, they were not Police Officers but then the court took notice of the general image of police in absence of legislative power to enforce other law enforcing agencies for the said purpose in the following terms : "23. It is also to be noticed that the Sea Customs Act itself refers to police officer in contradistinction to the Customs Officer. Section 180 empowers a police officer to seize articles liable to confiscation under the Act, on suspicion that they had been stolen. Section 184 provides that the officer adjudging confiscation shall take and hold possession of the thing confiscated and every officer of police, on request of such officer, shall assist him i....
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....s. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If be does, he will be a police officer." Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal [ILR (1884) 6 All. 50....
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....oved, but the question is what would be the effect of a retracted confession. It is now a well- settled principle of law that a retracted confession is a weak evidence. The court while relying on such retracted confession must satisfy itself that the same is truthful and trustworthy. Evidences brought on records by way of judicial confession which stood retracted should be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon." [See also Babubhai Udesinh Parmar v. State of Gujarat, (2006) 12 SCC 268 ]. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras [(1999) 6 SCC 1], whereupon reliance has been placed by the High Court, this Court had used retracted confession as a corroborative piece of evidence and not as the evidence on the basis whereof alone, a judgment of conviction could be recorded. There is another aspect of the matter which cannot also be lost sight of. A search and seizure or an arrest made for the purpose of proceeding against a person under the Act cannot be different only because in one case the authority was appointed under the Customs Act ....
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....ems necessary to prove the same were: "i) The cardboard carton allegedly used for carrying the heroin to test the veracity. ii) The bulk, which establishes the quantity recovered. iii) The three homogenous samples of five grams each taken from the bulk amount of heroin, which would be essential in ascertaining whether the substance that the accused was allegedly in possession of was, in fact, heroin." Indisputably, the cardboard carton was not produced in court being allegedly missing. No convincing explanation was rendered in that behalf. The High Court, in its judgment, stated: "The case set up by the prosecution is that the appellant being a member of a crew party, was in possession of his luggage, which included the cardboard carton, from which the recovery of heroin was allegedly effected. The appellant himself had presented the said carton along with the other luggage for custom clearance. From these facts, at least one thing is clear that the carton which was carrying the contraband, was under his immediate control. The argument advanced by Mr. Guglani is that the luggage which w....
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....o be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. 16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. 17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of ....
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....y flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution. Omission on the part of the prosecution to produce evidence in this behalf must be linked with second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time any prayer had been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1B) of the 1962 Act. An order was required to be passed under the afor....
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....es not contain any provision like sub-section (4) of Section 52A. It is of some importance to notice that paragraph 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52A of the Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1B) of the 1962 Act as the aspect of disposal clearly provided for under Section 52A of the Act is not alluded to. The High Court in its judgment purported to have relied upon an assertion made by the prosecution with regard to prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to destruction of case property, stating: "To a specific query put to Mr. Guglani by the Court with regard to aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained u/s 100 (1B) of Customs Act. He states that in this regard, a sample as per the provisions contained in sub c....
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....en taken recourse to. 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 oblivio....
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....n 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. The High Court, however, opined that the physical evidence was in safe custody. Such an inference was drawn on the basis that the seals were intact but what was not noticed by the High Court is that there are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of the physical evidence was not faulted. It was not done in the present case. PW-1 Kulwant Singh, Inspector-Customs, in his deposition, stated: "I had told the accused that I asked the accused that his search be conducted under Section 50 of the N.D.P.S. Act before a gazetted officer or a magistrate. I did not mention this fact in the panchanama Ex. PC. It is incorrect to suggest that version in Ex. PA was roughly drafted by the department and given to the accus....
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.... presence, the panchnama was not read over to the accused. It is correct that the only signatures of the accused were obtained on panchnama Ex. PC in my presence. I had gone through the panchnama and then I signed the same." He furthermore accepted: "It is correct that many recoveries have been effected from the passengers Arian Afghan Airlines earlier to this recovery and cases are pending before this court." PW-1 stated that seal had been given to PW-4, Rajesh Sodhi, Deputy Commissioner, but PW-4 denied the same. His deposition, inter alia, is to the following effect: "In August 1997, I was posted at A.C. In charge Raja Sansi Airport. On 1.8.1997, heroin One kg. 460 grams was recovered from the accused (1.460 Kgs.). This recovery was made by Inspector Kulwant Singh and K.K. Gupta Supdt. Customs and I was informed of this recovery. Samples and remaining bulk were handed over to me by Kulwant Singh, Inspector bearing seal No.122 of the Customs Divn. Amritsar. There is no Malkhana of the Customs department at the Raja Sansi Airport. On 4.8.1997 samples were handed over to Ashok Kumar for taking to the Central R....
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....requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose - to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the ad....
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.... the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be `right, just and fair'." Justness and fairness of a trial is also implicit in Article 21 of the Constitution. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right ....