Gurmej Singh vs Inspector of Customs

R.L. Anand, J.—Gurmej Singh, son of Thakur Singh has filed the present criminal appeal and it has been directed against the judgment and order dated 6.5.1994 passed by the Court of learned Sessions Judge, Ferozepur, which convicted the Appellant u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act�) and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the Appellant was further directed to undergo rigorous imprisonment for a period of 3 years.

The brief facts of the case are that on receipt of a secret information on 13.1.1988 at 10.30 p.m. Customs Staff, Ferozepur headed by V.K. Mahajan P.W. 1, G.K. Verma, Inspector, Customs, Y.P. Chhiber, Superintendent, Customs P.W. 2, Faqir Chand. Assistant, B.S.F., Inspector Daljit Singh, B.S.F. and other Constables of Customs and B.S.F. raided the residential premises of Darshan Singh, son of Phuman Singh, resident of Gazniwala. Mohinder Singh accused (since dead) along with Gurmej Singh (present Appellant) and Gurdip Singh (since acquitted) were present in the house. The room in which the accused were sitting was searched and from that room 15 slabs of charas was recovered. The persons of all the accused were also searched and from the personal search of Mohinder Singh (since dead) a. 12 bore country-made pistol along with six live cartridges was also recovered. On enquiry, all the above-said accused confessed having brought said 15 slabs of charas and one .12 bore pistol along with six live cartridges from Pakistan on 13.1.1988. The entire charas was weighed and it came out to be 16 Kilograms. From each slab, two samples weighing 20 grams each were drawn. Out of the two sets of samples, one set was sent to the Chemical Examiner, New Delhi under registered cover and insured parcel and the other set was kept by the Customs Staff and was later on deposited in the Malkhana. At the time of drawing the samples, the remaining bulk of charas was sealed with the seal No. 43. The above said articles, i.e., the charas and the pistol along with cartridges were taken into possession vide recovery memo Ex. PA. Grounds of arrest were disclosed to the accused. Ex. PB is the memo of arrest regarding Gurdip Singh, Ex. PC is the memo of arrest regarding Mohinder Singh accused (since dead), while Ex. PD is the memo of arrest regarding Gurmej Singh Appellant.V.K. Mahajan, P.W. 1 sent report in Form D.R.I, to the senior officers vide Ex. PE. He also recorded the confessional statement Ex. PF of Gurmej Singh Appellant in the presence of Y.P. Chhiber P.W. 2. Gurmej Singh Appellant confessed that he had gone to Pakistan by crossing the Indo-Pak border on 9.1.1988 along with Mohinder Singh (since dead) and Gurdip Singh accused and that in Pakistan, they had met Sheru and Mukhtiari who had provided them shelter in a sugarcane field and they stayed at Pakistan for four days. The Appellant further confessed that on 13.1.1988, they left Pakistan for India and they had brought the recovered charas by keeping it in a Parna. Before recording his statement, V.K. Mahajan conveyed to him the provisions of Section 108 of the Customs Act. After recording the statement of Gurmej Singh Appellant, V.K. Mahajan recorded the statement of Darshan Singh, owner of the house, which is Ex. PG, in which he admitted that he had no knowledge about the charas. Inventory of goods seized was also prepared by V.K. Mahajan vide Ex. PH. The representative samples Ex. P8 to Ex. P22 were drawn in the presence of Shri T.R. Bansal, Judicial Magistrate 1st Class, Ferozepur. Report Ex. PK was received from the Chemical examiner and after the completion of the investigation, complaint Ex. PL was filed in the Court u/s 20 of the Act.

The Appellant was charge-sheeted u/s 20 of the Act to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the persecution examined V.K. Mahajan P.W. 1, Y.P. Chhiber P.W. 2 and gave up G.K. Verma P.W. as unnecessary and closed the case.

Statement of he Appellant was recorded u/s 313, Code of Criminal Procedure in which he has stated that he has been falsely implicated in this case. In defence, the Appellant did not examine any witness.

The learned trial Court convicted and sentenced the Appellant in the manner as stated above and aggrieved by his conviction and sentence the present appeal.

I have heard Shri Ashish Aggarwal, learned Counsel who appeared on behalf of the Appellant and Shri Randhir Singh, the learned DAG, who appeared on behalf of the Respondent.

A very significant argument was raised by the Learned Counsel for the Appellant that in this case the provisions of Section 42 of the Act have not been complied with as a result of which the entire search becomes meaningless. Though the Learned Counsel appearing on behalf of the Respondent had tried to meet with his argument by stating that the recovery is very heavy but this Court is convinced with the submission raised by the Learned Counsel for the Appellant that the provisions of Section 42 have not been complied with. According to this section which deals with the powers of the seizing officer of his entry, search, seizure and arrest especially states that if such empowered officer has reason to believe from personal knowledge or information given by any person and taken down in writing, then in that eventuality, such officer can enter into and search any such building, conveyance or place. It is the case of the prosecution itself the V.K. Mahajan received a secret information that in the house of Darshan Singh, some contraband has been kept. A raid was conducted and in these circumstances, it was obligatory on the part of the Investigating Officer to record the information into writing which has not been done in this case. The consequences are very fatal to the prosecution in spite of the fact that the recovery is very heavy. The Legislature has introduced these words with some object. The object is very clear and laudable that a seizing officer should not be given undue rights and powers before entering the house of an individual when he receives a secret information that a particular person is in possession of some contraband. The Legislature wanted that on receipt of such information, that information must be shared by the superiors and a duty was cast upon the seizing officer to record that information into writing before entering into the premises of anybody. If for any reason, the seizing officer was not in a position to record the information into writing on account of such urgency, still he has to record the grounds of his belief as to why he earlier did not think proper to record the reasons in writing. In this view of the matter, I am of the opinion that Section 42 of the Act has not been complied with. The Hon�ble Supreme Court has also laid down that if Section 42 is not complied with, the consequences are fatal to the prosecution and this has been held in State of Punjab v. Balbir Singh 1994 (1) RCR 736 (SC). No law to the contrary has been cited by the Respondent�s counsel.

In this view of the matter, I allow this appeal, set aside the judgment and order of the learned trial Court and acquit the Appellant of the charge framed against him.

The case property, however, stands confiscated to the State and shall be destroyed according to rules.