AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2003 (2) TMI 506
X X X X Extracts X X X X
X X X X Extracts X X X X
....oth the sentences awarded to A-1 and A-4 to run concurrently and all the five accused are given the benefit of set-off. 2. Facts of the case have been detailed in the judgment of the learned Special Judge and, therefore, it is not expedient to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are that: 2.1. One Yashwantsinh Rupsinh (P.W.1), Officer Commanding, BSF Water Wing, in company of Narpatram, S.I., A.K. Devnath, Head Constable, Engine Driver Mandal, Arjun Singh and other officers, on 20.7.1994, while patrolling creek area of Koteshwar, at about 4.30 P.M., saw a wooden boat having engine, in a suspicious condition. When the boat of B.S.F. was seen by the persons fishing in the wooden boat, they tried to run away with their boat. However, since the BSF personnel had a high-speed boat they reached at the wooden boat within 5/6 minutes. The said wooden boat was stopped at the creek by the BSF officers and the persons who were found in the boat were directed to be alighted from it. In the said boat there were five persons.Upon preliminary inquiry they stated that they were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the same day. Second statement of A-1 was recorded on 8.8.1994 and his third statement was recorded on 9.8.1994. Second statement of A-2 was recorded on 9.8.1994. No further statement of other accused was recorded. 2.4. On 8.8.1994 formal arrest of the accused was made for violation of the provisions of the NDPS Act by the Customs Department and arrest report was submitted to the Assistant Commissioner of Customs on 8.8.1994 itself. During the investigation, report of Forensic Science Laboratory ('FSL' or short) on the sample which was collected in presence of panchas and sent for analysis was received which revealed that the contraband article was Charas. On the basis of the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act it was divulged that all the accused have committed offence under the provisions of the NDPS Act and, therefore, a written complaint for the offences punishable under Sections 20, 23 and 30 of the NDPS Act came to be filed by K.S. Joshi, the then Superintendent of Customs, Kachchh at Bhuj on behalf of the Union of India, in the Court of Special Judge (Sessions Judge), Kachchh at Bhuj which was re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ement of Siddique Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of the NDPS Act and 108 of the Customs Act dated 10. Original statement of Aechar Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of the Customs Act dated 11. Original statement of Khemu Alaya Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of the Customs Act dated 12. Original statement of Hanif Ishaque Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 13. Original further statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs 14. Original further statement of Husen Bhenu Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs 15. Original further statement of Siddique Umar Malad recorded by N.C. Bildani, Superintendent of Customs, Gadhuli under Section 67 of NDPS Act and 108 of Customs 16. Report of arrest u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rosecution has not been able to establish the involvement and indulgence of the accused in the alleged offence beyond reasonable doubt and the learned Judge has also committed grave error in outrightly believing the so-called evidence of the prosecution which was not tenable in the eye of law. It is emphasised by him that when it is undoubtedly the fact to reckon with that the mandatory as well as directory provisions of law have all been flouted with, no credence can be given to such evidence laid therein by the prosecution as also to the findings of the learned Judge. It is also emphasized by him that there has been clear flouting of the mandatory provisions as well as directory provisions contained under Sections 42 (1) and (2), 55 and 57 of the NDPS Act which in the resultant would render the conviction unsustainable. What is asserted by him is that various provisions of the Code, though directory in nature, have not been complied with and noncompliance of the same would invite adverse inference against the prosecution case. It is also highlighted by him that even several provisions contained in the Constitution of India as well as in Customs Act have not been complied with. Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d hostile and it has not come on record who has weighed the muddamal while sample was taken for sending to FSL. According to Panch witnesses presence of the accused at the time of drawing sample and preparing Panchnama is not established. (xvi) Statements of the accused recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act are hit by Article 20(3) of the Constitution of India as they were in judicial custody. (xvii) P.W.4 is a hearsay witness who ought not have gone to the creek at Vaniya Vadi nor he was present at the time of seizure or preparing panchnama and drawing sample. 5. Pointing out the aforesaid infirmities which, according to the learned advocate, are serious in nature and fatal to the prosecution case, it is contended that the accused are innocent and not in any way involved in the alleged incident and there was noncompliance of various provisions of the NDPS Act and, therefore, serious doubt is raised on the prosecution case and the so-called statements recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act during the arrest and at the time of their being in judicial custody, would not be sufficient as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of the same. It is also emphasised by him that the prosecution evidence is consistent in this regard. Panchnama was prepared in the presence of Panchas. They have supported the procedure carried out by the Customs Department while taking sample which was sent to FSL for analysis. It is true that the Panchas have not supported the prosecution case so far as presence of accused is concerned. However, on this ground the entire evidence of the panchas cannot be treated as effaced or washed off the record altogether as part of their evidence which is otherwise acceptable can be acted upon. It is also stressed by the learned counsel that all the accused are consistent in their statement recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act and they have given detailed background of their families which otherwise would have been impossible if they have not voluntarily given their statement. It is emphasised by the learned counsel that while the statement of the accused was recorded they were not in police custody but were in judicial custody in connection with the offences for violation of the provisions of the Foreigners Act and Indian Passport Regulations Act.....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The State of Maharashtra, 1994 Cri.LJ 1987. (vi) K.C. Jaya Kumar v. The State, 1997 Cri.LJ 10. (vii) Utpal Mishra, Air Customs Officer, IGI Airport v. Nicelai Christensen, 1997 (4) Crimes 108. (viii) Satyanarayan Das v. State of Orissa, 1999 Cri.LJ 974. (ix) Karnail Singh v. State of Rajasthan, 2000 Cri.LJ 4635. (x) K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721. (xi) Bipinbhai A. Patel v. State of Gujarat, 1998 (1) GLR 589. (xii) Gulam Hussain Shaikh Chougule v. S. Reynolds, Superintendent of Customs, Marmgoa, AIR 2001 SC 2930. (xiii) Sumarkhan Sidiqkhan Sindhi v. Collector of Customs (Preventive), 1999 (1) GLR 863. (xiv) Bhana Khalpabhai Patel v. Assistant Collector of Customs, Bulsar and another, 1998 (2) GLR 1319. 10. Mr. B.D. Desai, learned APP who appears on behalf of respondent No. 1 - State of Gujarat has supported the impugned judgment and order recorded by the learned trial Judge and has adopted all the submissions advanced by Mr. Asim Pandya, learned counsel for respondent No. 2 - Union of India and urged that the appeal may be dismissed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the accused from Nakhatrana Jail. On 7.8.1994 custody of the accused was obtained and thereafter statements of accused were recorded under section 67 of the NDPS Act and 108 of the Customs Act. He put his signature beneath the same. On 8.8.1994 he prepared arrest memo and thereafter the accused were produced before the learned Chief Judicial Magistrate and remand was sought. Thereafter further statement of A-1 and A-2 was recorded on 8.8.1994 and 9.8.1994 respectively. On 12.9.1994 he informed the Executive Magistrate, Bhuj about the Charas.The Executive Magistrate came and inventory of the recovered Muddamal was made. The inventory contained hand writing of the Executive Magistrate and himself. Thereafter he was transferred and in his place one Joshi who took charge filed complaint on the basis of the inquiry papers. In cross-examination he unequivocally stated that he had explained the accused about the provisions of Section 108 of the Customs Act and Section 67 of the NDPS Act before recording their statements. It may be appreciated that nothing substantial has been brought out by the defence during cross-examination of P.W.1 and P.W.4 which is capable of raising a doubt on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nto writing and procedure contemplated under Section 42 of the NDPS Act should have been complied with but since the said procedure is not complied with, the trial is vitiated and hence conviction and sentence should be set aside. 18.1. According to us, this contention is without any merit and substance as in the present case provisions of Section 42 of the NDPS Act are not at all attracted. Section 42 of the NDPS Act applies to the case where search or seizure is to be carried out in respect of contraband goods kept or concealed in any building, conveyance or enclosed place. In the present case, the contraband article - Charas was not concealed or kept in any building, conveyance or enclosed place but it was recovered from the mud in the Creek area which is a public place within the meaning of Section 43 of the NDPS Act. The explanation of Section 43 of the NDPS Act provides inclusive definition of the term "public place". The explanation reads as under:- "Explanation:- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." There is no manne....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 42(2) of the NDPS Act as search and seizure were made at a public place. 18.5. Similar question arose before a Division Bench of this Court (Coram: J.M. Panchal & J.R. Vora, JJ.) in Raghubhai's case (supra), in Criminal Appeal No. 12 of 2002 which was decided on 5/6-2-2002. The Division Bench aptly considered this question and replied in paragraphs 10.3 and 10.4 of the said judgment by referring to Sayar Puri's case (supra) and Aslambhai's case (supra) and held that provisions of Section 42 of the NDPS Act would not be applicable where search or seizure is made at any public place or in a vehicle in transit or any person is to be arrested or detained from any public place. 18.6. Applying the principles laid down by the Supreme Court as well as this Court in the above referred to four judgments to the facts of the present case and more particularly in view of the evidence which we have adverted in earlier paragraphs of this judgment, there cannot be any dispute that contraband article Charas was recovered from a "public place". It hardly needs to be emphasized that "public Place" described under Section 43 of the NDPS Act is inclusive and it is settled principle o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing Order Nos. 822 (E), Standing Order No. 823 (E) and Standing Order No. 763 (E) empowering the officers of Customs, Central Excise, D.R.I. etc., to carry out search, seizure, to file complaint and to exercise same powers of "officer in-charge of police station" as available under the Code. In view of this, BSF is entitled to give information regarding recovery of Charas to any of the empowered agencies and the requirement of law is not that the said information should be given to the State Police only. It is relevant to note that from the facts disclosed by the accused in their statements recorded under Section 67 of the NDPS Act and under Section 108 of the Customs Act, it is very clear that the muddamal Charas was imported into Indian Territory from Pakistan without any valid licence or permit. It is also disclosed in their statements that on one occasion a part of Charas brought into Indian Territory from Pakistan was exported (transported) by the accused to Pakistan illegally. Thus, essentially the case was pertaining to illegal export and import. In such a circumstance, the Customs Department is the only appropriate Department to whom the information should be given and BSF ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase the learned Single Judge held that there was no infraction of Sections 52, 55 and 56 of the NDPS Act. 20.6. In Karnail Singh's case (supra) the Supreme Court held that Officer in charge of police station required to affix seal etc., under Section 55 of the NDPS Act is distinct agency than "officers" contemplated under Section 53 of the NDPS Act. The arrested person and seized articles were forwarded under Section 52(3)(b) of the NDPS Act to officer empowers under Section 53 of the NDPS Act and hence mandate of Section 55 need not be complied with. 20.7. Applying the principles laid down by the Supreme Court and various High Courts in the judgments referred to hereinabove to the facts of the present case and in view of the various Standing Orders which we have referred to in para 20 (1) of this judgment, there is no manner of doubt that the Officers of the Customs and Central Excise and D.R.I. etc., are empowered to carry out search, seizure, to file complaint and exercise same powers of the officer incharge of a police station as available under the Code. Therefore there is no need to comply with the provisions contained in section 55 of the NDPS Act and hence the thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pliance of provisions of Section 57 of the NDPS Act. 22.1. According to us, this contention is also without any substance as the BSF officers have neither arrested the accused nor seized the contraband article - Charas. The BSF officers have simply caught the accused and thereafter immediately on the same day handed them over to the State Police to register complaint against them for violation of the provisions of the Foreigners Act and the Indian Passport Regulations Act. The BSF officers also on the same day handed over the Muddamal Charas to the Customs Department who seized the said goods under the Customs Act read with the NDPS Act. The formal arrest of the accused in connection with the NDPS Act was made by the Customs Department on 8.8.1994. The Customs Department had fully complied with the provisions of Section 57 of the NDPS Act by reporting seizure as well as the arrest. In this connection, it is appropriate to refer to Ex. 32 page 194 of the paper book which is a letter dated 22.7.1994 written by the Superintendent of Customs, Gadhuli to the Assistant Collector of Customs, Bhuj wherein the Superintendent of Customs has informed seizure of 256 Kgs. of Charas on 21.7.1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase where the accused have only knowledge of the muddamal Charas secreted at a particular place and they were not found to be in possession of the said article and it is settled principle of law that mere knowledge of the contraband article does not establish the guilt of conscious possession. 24.1. In this connection, it would be appropriate to refer to the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of the Customs Act. It is very clear from the statements of all the accused that they had knowledge of the Charas concealed in the creek area and they entered into the Water of Indian territory with a specific intention to illegally transport the Charas back to Pakistan. Their statements also reveal the fact that on an earlier occasion prior to about 3/4 months of the present incident, the accused had in fact transported about 225 Kgs. of Charas back to Pakistan in their boat and thereby violated the provisions of the NDPS Act. Thus this is not merely a case of knowledge but it is a case where in fact the accused have committed an offence earlier and in the second attempt they were caught before the illegal transportation took place. 24.2.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mind the nature and tenor of the statements of all the accused. The statements of all the accused, for the first time, were recorded on 7.8.1994. In their statements all of them have given minute details of their family background. All the accused have also narrated the previous incident of illegal transportation of charas to Pakistan by them and the amount paid to A-1 and other persons. In their statements the accused have given details as to how the consignment of charas was unloaded into the water of Indian territory by Jat Gang of Pakistan and how they came to know about unloading of charas. In their statements they disclosed name of Major Mohmedkhan Pathan of Pakistan Army and how Major Mohmedkhan Pathan and his four colleagues and Omar Malik with the army jeep took the delivery of Charas from A-1. Their statements also disclosed the fact that A-1 was arrested by Chuhad Jamali Police Station for bringing the charas to Pakistan illegally. Their statements also disclosed the fact that Major Mohmedkhan Pathan got A-1 released from police by exercising his influence. Their statements also gave details as to how A-1 came in contact with Major Mohmedkhan Pathan. Their statements als....
X X X X Extracts X X X X
X X X X Extracts X X X X
....confirmed that he accompanied Husen Malad A-1 while illegally transporting 225 Kgs. of charas to Pakistan from India on the first occasion. He also confirmed the fact that Husen Malad A-1 handed over Charas to Mohmedkhan Pathan and A-1 was rewarded with Rs. 1100/- and he was paid Rs. 200 and a new pair of clothes. 25.5. In the statement of Khemu Alaya, A-5, he also gave common details like family background and in addition he stated that he was unable to maintain his family by farming and that he had joined A-2 and had been doing fishing with him for the last two years. He stated that he had been to Chauhan Creek 4 to 5 times in these two years. He also confirmed his presence while charas was unloaded in the Indian territory. He gave names of other persons also who were with him on the first occasion. He confirmed that on 20.7.1994 he was there with A-2 and others in creek area and they were caught by BSF Patrolling party. 25.6. All the above statements clearly involved all the accused with commission of the offences under the NDPS Act. As their statements have not been retracted by any of them, they appear to be voluntarily made by them. The accused have also not complained ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere arrested for violation of the provisions of the Foreigners Act and the Indian Passport Regulations Act. 25.9. In Bhana Khalpabhai's case (supra), Supreme Court held that statements recorded under Section 108 of the Customs Act by the Customs Officers are admissible in evidence. 25.10. In Gulam Hussain Shaikh's case (supra), Supreme Court held that confessional statement recorded under Section 108 of the Customs Act is not inadmissible in evidence on the ground that safeguards prescribed under Section 164 of the Code were not complied with while recording statement. 25.11. In K.I. Pavunny's case (supra), Supreme Court held that person suspected by a Customs Officer of having committed an offence under the Customs Act is not an accused at that stage. He becomes an accused only when summons are issued by a competent Court/Magistrate pursuant to a complaint lodged by the competent Customs Officer. Hence his statement recorded during an inquiry under Section 108 of the Customs Act or during confiscation proceedings is not that of an accused within the meaning of Section 24 of the Evidence Act. The ratio laid down in the above referred to judgment is also squarel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estimony is corroborated by oral testimony of P.W.4 as well as that of P.W.3. Panch witnesses have supported all the formalities regarding preparation of panchnama, seizure and drawing of sample, handing over of the goods by BSF officers to Customs authorities and the statements of the accused recorded under Section 67 of the NDPS Act and Section 108 of he Customs Act which were voluntary and genuine in nature, recorded without any threat, coercion, duress or undue influence which were never retracted by them and also got corroboration from other evidence. 27. From the aforesaid facts there is no escape from the conclusion about the guilt of the accused. We are, therefore, of the considered opinion that the learned trial Judge has considered all these aspects properly and correctly held the accused guilty and rightly convicted and sentenced them. 28. Mr. G. Ramakrishnan, learned advocate for the accused, has referred to reported decisions of the Supreme court as well as various High Courts during the course of his submission which we have noted in earlier paragraphs of this judgment. But, in our view, since the ratio laid down by the Supreme Court as well as other High Courts....