TaxTMI 
TaxTMI 
2016 (7) TMI 541
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....h, P.W. 1, Inspector of Custom, that I.P. Singh, Superintendent, Custom, (P) Division, Motihari, received an information through the coded informer on 23.02.2008 that a large quantity of dodda is being transported through the bus bearing registration no. BR-16P-1251. On the said information a preventive team was organized by the Superintendent, Custom, (P. Division), Motihari, which contains the complainant, Amar Nath, as well as Siman Ekka, P.W. 2 and other sepoy and havildar and B.N. Pandit, the team rushed to Chhapwa and waited at Chhapwa Terminal and after some time the said bus seen coming from the side of Raxaul, which was signaled to stop and, thereafter, the bus was stopped and on check, from the dickey of the said bus some sacked dodda recovered in gunny bag. On enquiry, one Shiv Balak Sah amongst the passengers came forward and accepted the ownership and claimed the articles belong to him. Thereafter, six big gunny bags and two small gunny bags of alleged dodda brought to the Custom Office and the articles seized was weighed and found to be 266 K.G. for which seizure list and panchnama were prepared, which were duly signed by the driver, cleaner (khalasi) and passenger of....
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....hibit 7 is the letter, Exhibit 8 the final complaint, Exhibit 9 is the report of the Central Revenue Control Laboratory, Hill Side Road, Pusa Campus, P.O. I.A.R.I, New Delhi - 110 014, indicating that the seized article contains morphine to the tune of 0.6 per cent, Exhibit 10 is the interrogatory statement recorded under Section 67 of the Act of Shiv Balak Sah, the appellant, Exhibit 11 is the voluntary statement of the appellant under Section 67 of the Act, which was recorded by Katib (writer), Ajit Kumar and Exhibit 12 is the certification of the article, seized. 7. The next witness examined is Siman Ekka (P.W. 2). He also supported the prosecution case, about the information, constitution of team, raid and search and seizure. It is, further, stated that interrogatory statement and voluntary statement of the appellant were recorded and ordered for re-sampling. P.W. 3 is Bishwanath Pandit, retired constable and has reported that re-sampling was made before him by the Judicial Magistrate and the envelop containing his signature. P.W. 4 is Indrajeet Prasad, sepoy, and has also supported the prosecution case being the member of the raiding party regarding the search and seizure of ....
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....n produced in Court and failure to produced seized articles before the trial Court which is best evidence required to have been produced during the trial has not been produced is not merely a procedural irregularity, but, cause prejudice to the accused and mere oral evidence as to their feature production of panchnama does not discharge the heavy burden which lies on the prosecution particular when the offence is punishable with stringent sentence and has placed reliance upon a decision reported in (2004) 10 S.C.C., 562 (Jitendra & Ors. Vrs. State of M.P.). It has, further, been contended that the confession made before the Customs Authorities, who have been assigned the work of investigation are like a police officer, hence, the confessional statement recorded by them is hit by Section 25 of the Indian Evidence Act, 1872, and has placed reliance upon a decision reported in (2008) 16 S.C.C. 417 (Noor Aga Vrs. State of Punjab & Anr.) an has placed reliance on paragraphs 75 and 76 of the decision. He has, further, placed reliance on a decision reported in (2013) 14 S.C.C., 527 (Vijay Jain Vrs. State of M.P.) that neither the articles, seized, has been produced nor even the sample whi....
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....Hill Side Road, Pusa Campus, P.O. I.A.R.I, New Delhi - 110 014, for percentage of morphine content. The report of the Chemical Laboratory is dated 09.01.2009, which has been marked as Exhibit 6 and subsequently by order, dated 17.02.2009, an order passed to appoint Mr. Ashok Raj as Judicial Magistrate and, thereafter, re- sampling before the Judicial Magistrate taken and report of the Chemical Laboratory procured, marked as Exhibit 9, showing that the contents of the morphine was found to be 0.6 per cent. However, in the meantime, official complaint filed along with the report on which the cognizance taken. 12. The witnesses examined in the case are P.W. 1, who has supported the prosecution case regarding the information received and, accordingly, constituted a preventive team, reached at the Chhapwa More and, then, apprehended the bus by giving signal and consequently bus stopped, recovery made before the driver, cleaner (khalasi) and the passengers and the seizure list and panchnama prepared regarding the article, seized, along with accused and the witnesses brought at the Customs Office and there the articles were weighed, seizure list and panchnama prepared, sample taken out. ....
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....cle, seized, has been produced nor the sample, taken from the article, seized, has been produced before the Court during the trial. However, though certification of a Magistrate has been marked Exhibit 12, but, destruction of the article has not been proved or brought on record. The witnesses though supported the prosecution case regarding the search and seizure and the preparation of the seizure list, which has been marked and exhibited, hence, the trial Court having convicted the appellant on the ground that since the articles, seized, were kept in sealed cover and was duly sampled, sent to Kolkata and it was found to be morphine. 13. However, it is alleged that the articles, seized, but, the said seized article has not been produced before the Court. Neither the article, seized, nor the sample of the article, seized, has been produced in the Court and proved as material exhibit and it can prejudice the accused. In the case reported in (2004) 10 S.C.C., 562 (supra) the Hon'ble Supreme Court taken into consideration the finding of High Court and observed as follows : "Although the High Court noticed the fact that the charas and ganja alleged to have seized from the custody ....
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....Laboratory, Kolkata, in which the report received and, further, re-sampling was made of the article, seized through Judicial Magistrate and representative samples were prepared, but, neither the sample taken at the first instance nor the sample taken at the second instance before the Judicial Magistrate has been produced nor the article, seized, has been produced. Hence, in that background it is relevant to quote paragraph 96 of the decision reported in (2008) 16 S.C.C. 417 (supra) which is as follows : "Para 96 : Last but not the least physical evidence relating to the three samples taken from the bulk amount of heroin was 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." 16. Hence, it is apparent even if the plea taken by prosecution that it has proved the certification and bulk quantity has been destroyed, then, it is required for prosecution to produce the sample for purpose of establishing the recovery of article, seized, as envisaged in Secti....
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....eeping the article. However, P.W. 5, who has come to prove the certification of article, which has been marked as Exhibit 12, in his cross-examination, has stated that the seized article was kept in Godown on 22.09.2008 and the articles, seized, were weighed before him on the date of certification, but, he has stated that he can not say where the articles, seized, were kept in between 23.07.2008 to 21.09.2008. However, the article seized on 23.07.2008 itself, hence, from the evidence it is apparent that where the articles were kept from 23.07.2008 to 21.09.2008 has not been mentioned. Though P.W. 1 stated that the article seized on 23.07.2008 and has proved the test memo which shows the date of drawing and dispatch of the sample is 23.07.2008. However, the date of receipt in the Laboratory has been shown in Exhibit 4 as 11.12.2008. However, it is apparent that when the date of withdrawal and date of dispatch of the sample is shown as 23.07.2008, but, the date of receipt of sample in the Laboratory is 11.12.2008 and there is no explanation where the sample remained for about more than 4 to 5 months in transit, i.e., reaching the sample from Motihari to Kolkata and, hence, it casts a....
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....unt of heroin was also not produced. Even if it is accepted for the sake argument that the bulk quantity was destroyed the sample was essential to be produced to prove as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52A of the Act. Section 52A of the Act suggests that every Court shall draw the inventory, the photographs of the narcotic drugs and psychotropic substances and list of samples drawn under sub section (2) and certified by the Magistrate as primary evidence in respect of such offence and in decision reported in (2013) 14 S.C.C. 527 (supra) it has been held that the prosecution must in any case produce the sample even when bulk of quantity is said to have been destroyed. More over, the fact that though the seizure list witnesses are the driver and cleaner (khalasi), who have been examined as P.Ws. 7 and 8 respectively, they have proved their signatures on the seizure list and panchnama and on each pages of the confessional statement and the interrogatory statement have stated that the bags were loaded after booking, but, the booking was not made before him, but, was said booking was from the counter and it is s....
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....enalty or an order of confiscation of the properties under the Act, but also with the offences having serious consequences." "76 : Section 53 of the Act empowers the Customs Officers with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of Section 53 would, thus, be deemed to be police office and for the said purposes of Section 25 of the Act shall be applicable." ................... "78 : Section 53-A of the Act makes such a statement relevant for the purposes of the said Act. The observations of the High Court, thus, that confession can be the sole basis of conviction in view of Section 108 of the Customs Act, thus, appear to be incorrect." .................. .................. "81 : This Court in Alok Nath Dutta v. State of W.B. stated : (SCC p. 274, para 125) "125. We are not suggesting that the confession was not proved, 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 whil....
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....ld that the conviction can be recorded on the confessional statement, if confessional statement voluntarily made. Further, confessional statement of the appellant corroborates evidence of P.W. 1 and the criticism to reject the confessional statement on ground of retraction rejected on plea that said retraction in statement under Section 313 of the Criminal Procedure Code is at belated stage and no complaint made at the time of recording evidence when produced before Magistrate and so held that if trial Court held that confessional statement was voluntarily made and though it is safe to rely upon the same it can not be held that it committed any wrong. However, confessional statement has only been taken as corroborative evidence. 30. However, in this background it is relevant to quote paragraph 95 of decision reported in (2008) 16 S.C.C. 417 (supra) : "95 : The High Court proceeded on the basis that non-production of physical evidence is not fatal to the prosecution case but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the re....
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....ualify as police officer or not." 33. The ratio decided in (2008) 4 S.C.C., 668 (supra) has been doubted and referred the case to the Constitution Bench for re- consideration. 34. However, it is true that the physical evidence of possession has not been proved by producing the article, seized, but, the prosecution witnesses supported the prosecution case and even the independent witnesses have supported the seizure and proved his signature on seizure list, however, the appellant has confessed and the confessional statement and the interrogatory has been marked as Exhibits 10 and 11. P.W. 2 has specifically stated that the appellant has confessed, the appellant has not reported about any threat and coercion or that the statement has not been voluntarily made at the initial stage, this only is a denial of having not made such statement in statement under Section 313 of the Criminal Procedure Code at a very late stage and the witnesses has supported the prosecution case and there is nothing in their evidences to disbelieve except the physical evidence has not been produced. However, the fact contain in Noor Aga case retracted up in the fact that the accused in Noor Aga case where t....