TaxTMI 
TaxTMI 
TaxTMI 
2013 (3) TMI 623
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.... is that on 08.05.2006 at about 2.30/ 3.00 PM, the appellants, who are the Pakistani Nationals, arrived at India in Samjhauta Express at Land Custom Station, Attari Rail Station. After immigration clearance, when both of them reported for customs clearance, they appeared to be nervous and uncomfortable, which raised suspicion in the mind of Satish Chander, Inspector Customs, who was on duty. Thereafter, firstly the baggage of the appellants was checked. Later in the course of personal search carried out by Inspector Ms. Neena Sood, Inspector Customs, 0.450 kgs. of brown powder contained in 11 capsules wrapped in aluminum foil with transparent cello tape concealed in the black under garment and small packets in cherry coloured sandal, worn by Fatima Bibi were recovered, whereas 0.490 kgs. of brown powder contained in 11 capsules wrapped in aluminum foil with transparent cello tape in the black coloured hair band with black ribbon and small polythene packets from the cavity of black coloured sandal worn by Mumtaz was recovered. The contents of brown powder later on found to be heroin on the basis of drug testing kit available with the custom authorities. The heroin and the other wrap....
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....esence of the nearest Magistrate or a Gazetted Officer. Both the accused opted to be searched in the presence of a Gazetted Officer. He proved intimation-cum-option and consent memo Exs.P1 and P2, which bears his signatures. Since both the accused were females, a lady officer namely Neena Sood, Inspector Customs, who was performing her duties at Land Customs Station, Attari Rail was called. Thereafter, Neena Sood, Inspector Customs along with Devi - an independent female witness, took both the accused to the x-ray room for personal search. During the personal search of Fatima Bibi, 11 capsules wrapped in aluminum foil with transparent cello tape were found in black panty worn by her and on tearing the cherry colour sandal worn by her, some small polythene packets containing brown powder was also found concealed. During the personal search of Mumtaz, 11 capsules wrapped in aluminum foil with transparent cello tape were found in the black colour hair band worn by her on her hair with black ribbon and on tearing black colour sandal worn by her, some small polythene packets containing brown powder in the cavity of sandals were also found concealed. The brownish powder recovered from Fa....
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.... to be handed over to Rasheed on reaching Delhi and that they did this act for money. On the same day, all the sample parcels and bulk parcels were deposited with Bhubneshwar Mishra (PW 5), Incharge Malkhana at Custom House Malkhana Amritsar vide inventories Ex.P17 and Ex.P18, which bear his signatures. He deposed that two representative samples i.e. one pertaining to each of the accused along with test memo and authority letter were sent to the Central Revenue Control Laboratory, Delhi through Dhiren Senapati (PW 4), Inspector for chemical analysis on 16.05.2006. In his cross-examination, PW-1 Satish Chander stated that Rashida Bibi was also apprehended on that day, but she was on another counter and that the accused were the last passengers, who arrived at his counter. He denied the suggestion that no recovery was affected or false recovery has been planted against them. He also denied the suggestion that no voluntary statement was made by the accused and their thumb impressions or signatures were procured on blank papers. PW-2 K.S.Bajwa, Superintendent Customs has also deposed in the sequence of events supporting the version as stated by PW-1 Satish Chander, Inspector Customs. ....
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....jarat AIR 2011 SC 77 and Narcotics Control Bureau Vs. Sukh Dev Raj Sodhi (2011) 6 SCC 392; & (iii) That as per Ex.D-1 i.e. the statement of PW-4 Faqir Singh, Superintendent Customs, LCS Attari Rail, Amritsar recorded in Sessions Case No.122 of 2006 titled 'Inspector of Customs Vs. Smt. Rashida Bibi', Neena Sood Inspector was the person, who carried out the personal search of Rashida Bibi on 08.05.2006 as well. Therefore, the presence of Neena Sood for the purpose of physical search in the present case is unbelievable. It is also pointed out that the name of Neena Sood does not find mention in the list of Officers, who were associated by the prosecution in the present case. Therefore, the entire process of search is doubtful. Reliance is placed upon a Division Bench judgment of this Court in Saudagar Singh @ Sagu Vs. The State of Punjab 1974 PLR 57 and the order passed by the Rajasthan High Court in Civil Regular Second Appeal No.70 of 1966 titled 'Firm Ramchand Bhagirath & others Vs. Ganpat Ram' decided on 18.12.1972. (iv) That the prosecution has not examined any of the independent witness either to the recovery or to the personal search. In the absence of the ex....
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....e such drug or substance and all materials, if he reason to believe that such process may furnish evidence of the commission of any offence punishable under this Act. Sub- section 2 of Section 42 contemplates that where an Officer takes down any information in writing under sub-section (1) or records grounds for his belief, he shall within seventy two hours send a copy thereof to his immediate official superior. The Constitution Bench in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539 examined the provisions of Sections 42, 43 & 50 of the Act. It has been held that Section 42 of the Act requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure. Section 42 pertains to search of "building, conveyance or enclosed place". Section 43 does not contain any such provision. The empowered Officer has the power of seizure of the article etc. and arrest of a person, who is found to be in possession of any narcotic drug or psychotropic substance in a "public place" where such possession appears to him to be unlawful. The Court noticed that the change in the manner of polic....
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....r Section 50 of the Act was in a language not known to the appellants i.e. Hindi, is untenable. Learned counsel for the appellants admitted that both the appellants are illiterate though one of them knows that how to sign in Urdu. Spoken language in this part of Punjab and in the Punjab of Pakistan is substantially the same i.e. Punjabi. The contents of the notice were read over to the appellants and made to understand in the language known to them. Both the accused- appellants have put their impressions in token of having understood the same and admitting it to be correct. In fact, no question was asked from any of the prosecution witness that the contents of the notices were not made known to them. Therefore, the argument raised by the learned counsel for the appellants that the notice under Section 50 of the Act was not valid, is not sustainable in law. In terms of Constitutional Bench judgment in Vijaysinh Chandubha Jadeja's case (supra) requirement of Section 50 is mandatory and requires strict compliance, but it is a question of fact in each case, whether or not procedure prescribed has been followed. Though in Sukh Dev Raj Sodhi's case (supra), the Bench has observe....
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....ony of a witness in the earlier judicial proceedings is admissible in evidence on satisfaction of the conditions mentioned therein i.e. (i) when the witness is dead; (iii) cannot be found; (iii) is incapable of giving evidence; (iv) is kept out of the way by the adverse party; or (v) his presence cannot be obtained without an amount of delay or expense. Even after satisfaction of such conditions, the proceedings have to be between the same parties or their representatives in interest. As per Explanation, a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused. None of the conditions mentioned in Section 33 of the Indian Evidence Act, 1872 are satisfied by the defence to make the statement admissible or relevant in the present case. There is no evidence led by the defence that PW-4 Faqir Singh in the earlier proceedings, is not available as per the stipulations in Section 33 of the Indian Evidence Act, 1872 nor the previous proceedings were between the same parties inasmuch as the accused were not the same. In V.M.Mathew Vs. V.S.Sharma (1995) 6 SCC 122, the Supreme Court held as under: "10. The Division Bench of the Rajasthan High Cour....
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....ther Vs. State of Gujarat 1988 (Supp.) SCC 241, the Supreme Court observed that the prosecution case cannot be thrown out or doubted on the ground that independent witnesses have not been joined. It was observed that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere. The Court observed as under: "11. .....The court, therefore, instead of a doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused....." In Mai Ram's case (supra), the Supreme Court also held that no material was brought on record by the defence to discredit the evidence of the official witnesses. The question is; whether the evidence of the official witnesses suffers from any infi....
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....quirement nor a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith. It was, thus, concluded that non-production of such a witness cannot by itself affect the merits of the trial. Still further, the report of the Central Revenues Control Laboratory, Delhi (Ex.P23) is to the effect that the samples were received in seal intact condition. Therefore, there is no factual or legal basis to infer that the seal on the samples was tinkered with. None of the prosecution witnesses have been cross-examined in respect of tinkering of the contents of the samples. Since no suggestion has been put to the prosecution witnesses in respect of sending of samples or its possibility of tinkering, the argument raised at this stage is without any factual basis. Therefore, there is no reason to raise suspicion in respect of tinkering of the samples. We also do not find any merit in the argument that samples of 5 grams each were taken, but when the same were weighed in the Laboratory, the same were found to be 4.5 grams and 3.6 grams, thus, there is discrepancy in the weight of the samples seized and the samples received ....
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.... a report before a Magistrate under Section 173 of the Code of Criminal Procedure. Power to grant bail, power to collect evidence, and power to search premise or conveyances without recourse to a Magistrate, do not make him an officer- in-charge of a police station. Proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. His orders are appealable and are subject also to the revisional jurisdiction of the Central Board of Revenue and may be carried to the Central Government. Powers are conferred upon him primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue." Following the said judgment and while considering the question; whether the officers of the Department of Revenue Intelligence invested with powers of officer-in-charge of police station under Section 53 of the Act are police officers within the meaning of Section 25 of the Evidence Act, the Hon'ble Supreme Court in State of Gujarat Vs. Anirudhsing (1997) 6 SCC 514, held that such officers were not the police officials within the meaning of Section 25 of the Evidence Act. Therefore, the confessional statement recorded by ....
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....several cases thereafter. 41. In CCE v. Duncan Agro Industries Ltd. (2000) 7 SCC 53 this Court stated: (SCC p. 58, para 11) "11. Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said section is intended to be exercised by a gazetted officer of the Customs Department. Sub-section (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the Magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost." (emphasis supplied) It is thus clear that statements recorded under Section 108 of the Act are distinct and different from statements recorded by the police officers during the course of investigation under the Code."....
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....ement under Section 313 of the Code of Criminal Procedure. 18. In our opinion, when an accused is made aware of the confession made by him and he does not make complaint within a reasonable time, the same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case the appellant was produced before the court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only when his statement was recorded under Section 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of saying that his signatures were obtained on blank pages. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction. 19. The view which we have taken above finds support from the judgment of this Court in M. Prabhulal v. Directorate of Revenue Intelligence (2003) 8 SCC 449, in which it has been held as follows: (SCC p. 452, para 5) "5. It has been established that the Customs Office was abou....
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....were recorded on 09.04.2006, as the first part came to be completed around 12.30 mid night. The accused were produced before the Magistrate on 09.04.2006. But no complaint was made before the Magistrate that their statements have been recorded by force or they have been made to sign on blank papers. During customs remand, supplementary statements have been recorded on 10.04.2006. But again there is no evidence that at any point of time before the Magistrate, the accused have sought to retract from the statements made. The suggestion put to the prosecution witnesses i.e. PW-1 Satish Chander, Inspector Customs, PW-2 K.S.Bajwa, Superintendent Customs and PW-3 Ms. Neena Sood, Inspector Customs is that signatures/thumb impressions of the accused were obtained on blank papers. A perusal of the record shows that placement of signatures and thumb impressions cannot be on blank papers, as either the same are appearing at the end of the statements and in the margin where there is no written material. Keeping in view the fact that the appellants have not sought to retract their confessions at any point of time before their statements under Section 313 Cr.P.C. were recorded, the statements rec....
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....nless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh V/s. State of Punjab [AIR 1952 SC 214]." A perusal of the statement recorded by the Customs Officer on 09.05.2006 shows that appellant Fatima Bibi had taken a stand that it was not in her knowledge that by whom this brown coloured powder in question was handed over at Lahore Rail and to whom it was to be delivered at New Delhi. Only Rasheed is having all such information and that she was allured by Rasheed for sake of money for doing this illegal work. Similar is the statement of Mumtaz. The recording of the statements concluded at 30 minutes past mid-night, thereafter, the appellants were produced before the Magistrate latter in the day. In the supplementary statements recorded on 10.05.2006, appellant Fatima Bibi has ....