Hoffmann Andreas vs Surinder Singh Chadha

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 13th June, 1997 passed by the learned Additional Sessions Judge, Amritsar, who convicted the appellant for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act'') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/ or in default of payment of fine, the accused was directed to undergo rigorous imprisonment for a period of one year for allegedly having been found in possession of 1600 grams of charas on 28th April, 1996, when the accused was trying to cross the Attari Border for going to Pakistan. The case property, including the motor bicycle bearing registration No. L1HH4, was also confiscated to the State, as the Charas was being carried in the said conveyance.

Inspector of Customs, Land Customs, Station Attari Road, Amritsar, filed a criminal complaint before the Court of Chief Judicial Magistrate, Amritsar under Section 18 read with Section 23 of the NDPS Act against the accused on the allegations that on 28th April, 1996 at about 12 Noon the appellant was apprehended at Land Customs, Attari Road, Amritsar by Inspector S.S. Chadha (P.W.1) of the Customs Department. 1600 grams of Charas wrapped in a plastic packet was recovered from the tool box of the motor bicycle, referred to above. The accused could not produce any licence or permit for the possession of the Charas. A sample of 20 grams of charas was drawn and was sealed. The remaining charas was separately sealed and the entire case property was taken into possession. The sample of the charas was sent to the office of the Director, Forensic Science Laboratory, who also found the contents as charas. The investigation aspect was completed and after obtaining the report (Exhibit PH) from the Director, Forensic Science Laboratory, the complaint (Exhibit PG) was filed in the Court of Chief Judicial Magistrate, Amritsar. I will deal with in detail the relevant contents of the complaint and the evidence led by the prosecution in the subsequent portion of the judgment, but at this stage I can only say that vide order dated Ist August, 1996 the Chief Judicial Magistrate committed the accused to the Court of Session in order to face the trial. Vide order dated 12th September, 1996 the trial Court framed the charges under Sections 20 and 23 of the NDPS Act against the appellant. The charges were read over and explained to the accused, to which he pleaded not guilty and claimed the trial. In order to prove the charges, the prosecution examined three oral witnesses, Shri Surinder Singh Chadha, Inspector Customs, who conducted the recovery of the charas; Shri J.M. Bhatia, Superintendent Customs as P.W.2; and Smt. Surinder Kaur Mayal, Inspector Customs, as P.W.3. The relevant documentary evidence, which has been on the file is as follows :

(i) Exhibit PA RecoverycumSeizure Memo. which would show that charas weighing 1600 grams along with one motorbicycle, one camera and some personal effects were taken into possession, besides the passport of the accused. In the remarks column of Exhibit PA one factor has come on the file that the alleged charas was tested at the spot with the drug testing kit itself, which answered positive for charas.

(ii) Exhibit PB The Panchnama which was prepared at the spot in the presence of Shri Roop Lal Bindra and Sh. Manjit Singh besides the Superintendent Customs, showing that charas from the motor bicycle was recovered and the copy of one seizure memo. was also supplied to the accused.

(iii) Exhibit PC is the arrest memo. which indicates that the appellant was informed that he had committed the offences under Section 135 of the Customs Act, 1962, and Section 23 of the NDPS Act besides Section 20 thereof. Copy of this memo. was also handed over to the appellant.

(iv) Exhibit PD is the Jama Talashi memo. signed by the aforesaid witnesses Sarvshri Roop Lal and Manjit Singh.

(v) Exhibit PE is the statement of the accused which was recorded at the spot by the Customs Authorities, where the appellant had testified as follows :

"I was further asked whether I possessed any illegal goods in my baggage or concealed in my motorcycle to which I replied in the negative. Thereafter, the Customs Officer called two independent witnesses and the search of my baggage/motor cycle was started in the presence of two independent witnesses and myself and before the Superintendent Customs...."

The other part of the statement of the appellant as contained in Exhibit PE I need not incorporate.

(vi) Exhibit PF is the forwarding letter dated 4th May, 1996 issued under the signatures of the Assistant Commissioner to the name of the Chemical Examiner for the despatch of the sample of the charas through Shri S.S. Chadha P.W.1.

(vii) Exhibit PH is the report of the Chemical Examiner, who has certified the contents of the sample as charas.

Now I record the averments of para No. 3 of the complaint Exhibit PG, where it has been stated as follows :

"....The accused denied the possession of any contraband with him. As there was suspicion against the accused, two independent witnesses were called. Then in the presence of two independent witnesses, namely, Roop Lal and Manjit Singh, the accused was asked whether he would like himself and his motor cycle to be searched in the presence of a gazetted officer or Magistrate. The accused agreed for his search before any Gazetted Officer. Shri J.M. Bhatia was called for the search of the accused, who is the Superintendent of Customs, L.C.S. Attari Road, Amritsar. The search of the baggage and Motor Cycle was conducted in the presence of the independent witnesses and Sh. J.M. Bhatia, Superintendent Customs, LCS Attari Road, Amritsar. As a result of the search one plastic packet containing 1600 grams of charas was recovered, which was concealed in the Tool box underneath the seat of the Motor Cycle. The recovered 1600 grams of charas was tested with drug testing kit which gave a positive signal of charas ....."

There are two more documents which have been proved on record as Exhibits PJ and PK. These documents may not be very significant for me for the purpose of the present decision.

The two independent witnesses associated during the course of search Sarvshri Roop Lal and Manjit Singh were not examined by the prosecution and they were given up as having been won over by the appellant.

On the closure of the prosecution evidence all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied these circumstances and ultimately his defence is as follows :

"I am innocent. No charas was recovered from me nor my motor cycle. There was no such extra fittings in the motor cycle as alleged by the prosecution. There is no lock to the seat of the motor cycle and it could be opened without any key. I am falsely implicated in this case. The Customs people had got signed from me on many blank papers. The statement written by me was at the dictation of the Customs Officers as they had promised to let me off, if I did so at their behest."

The trial Court also put the question to the accused that the Charas was tested at the spot with the drug testing kit and the result was positive. To this the appellant pleaded his ignorance by stating that he did not know.

When called upon to enter into his defence, the accused examined Shri Kulwant Singh, Inspector Customs, who proved that as per entry in Exhibit D1, the accused entered India on 23rd December, 1995 and he had entered through Land Customs Station, Sanauli, District Maharaj Ganj, along with the motor cycle. The accused wanted to go out of India on 28th April, 1996 and he was apprehended on the same day.

The trial Court believed the story of the prosecution and rejected the defence version. It acquitted the accused under Section 23 of the NDPS Act for the reasons stated in para No. 28 of the impugned judgment, but convicted him under Section 20 of the NDPS Act and sentenced him to undergo R.I. for a period of 10 years and the appellant was further directed to pay a fine of Rs. 1,00,000/. In default of payment of fine, the appellant was supposed to undergo rigorous imprisonment for a further period of one year.

This appeal I am disposing of with the assistance rendered by Shri Rajiv Dawar, Advocate, appearing on behalf of the appellant; and Shri D.D. Sharma, Advocate, appearing on behalf of the respondents, and with their assistance have gone through the record of the case.

Multifarious arguments were raised by the learned counsel for the appellant and his first submission in this case is that the alleged recovery has been effected under Section 42 of the NDPS Act and in these circumstances it was obligatory on the part of the seizing authority to issue a special report to the higher authorities. The noncompliance of the provisions of Sections 42 of the NDPS Act is fatal. This Court is not convinced with the first argument raised by the learned counsel for the appellant because this recovery does not fall within the provisions of Section 42 of the NDPS Act. It has not been recovered from any house. There is no entry into any house etc. nor the alleged recovery has been effected after sunset. It is a recovery by chance and from the tool box of the motor bicycle, which the appellant was carrying at the time of his journey from India and he intended to go to Pakistan by crossing the Border. In fact, it was not recovered from the person of the appellant but from the tool box of the motor bicycle. It is a recovery of the incriminating charas as per the provisions of Section 43 of the NDPS Act. In these circumstances the evidence of the prosecution will be read and looked into in the light of my above observations that the present recovery falls within the ambit of Section 43 of the NDPS Act.

It was then submitted by the learned counsel for the appellant that the mandatory provisions of Section 50 of the NDPS Act have not been complied with by the seizing authority, as a result of which the alleged seizure becomes entirely illegal. The argument of the learned counsel for the appellant may look alluring at the first instance, but on my deeper scrutiny, I find it without any force. Learned counsel for the appellant supplementing his submission, submitted that as per the documents prepared at the spot, there is not an iota of suggestion in those documents that the offer was made to the appellant as to whether he wanted to be searched in the presence of some Gazetted Officer or a Magistrate, as there is no reference in the documents prepared at the spot. Superintendent Customs is a Gazetted Officer. The reference to the complaint (Exhibit PG) would show that there is a categorical averment made in the complaint itself that the presence of two independent witnesses was secured, namely, Shri Roop Lal and Manjit Singh, and option was given to the accused whether he would like to get himself searched and his motor bicycle to be searched in the presence of a Gazetted Officer or a Magistrate. The accused agreed for his search before any Gazetted Officer. Resultantly, the services of Shri J.M. Bhatia were secured. Shri Surinder Singh Chadha has appeared as P.W.1 and had also stated on oath that the appellant was given the offer whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate and on the request of the appellant that he wanted to be searched before some Gazetted Officer, Shri J.M. Bhatia, Superintendent Customs, who was present on duty, was called. It has also come in the statement of Shri Surinder Singh Chadha that Constable Palwinder Singh was deputed to call the independent witnesses and he brought Shri Roop Lal and Shri Manjit Singh, the two publicmen. The statement of Shri J.M. Bhatia is also relevant in this regard. According to him, Mr. S.S. Chadha (P.W.1) sent a message to him that search of the motorcycle of the accused is to be carried and that he should reach at the spot. It has also come in the statement of Shri Bhatia that the accused was categorically asked as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate and the answer of the appellant was for the choice of a Gazetted Officer.

Totality of the above evidence would show that substantial compliance of Section 50 has been done in this case, though at one point of time the Hon''ble Supreme Court was pleased to hold that in cases of chance recovery, the application of Section 50 of the NDPS Act is not necessary. However, in the present case there is a compliance of Section 50 of the NDPS Act. There was also a compliance of the provisions of Section 52 of the NDPS Act when the appellant was apprised of the grounds of arrest at the spot. The grouse of the learned counsel for the appellant is that no notice in writing has been served upon the appellant, inquiring from him whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. It is too much to be expected on the part of the appellant from the prosecution. A reading of Section 50 of the NDPS Act would show that a duty has been enjoined upon the seizing officer only to inform the accused of his right that he had the option of search either in the presence of a Gazetted Officer or a Magistrate. It is not the mandate of Section 50 of the NDPS Act that the notice should be in writing. It is also not the requirement of the law that the accused should give his consent in writing. It is a question of believing and nonbelieving of the statements of the seizing officers to the recovery witnesses as to whether they had complied with the provisions of Section 50 of the NDPS Act or not. I have already reproduced the oral evidence in this regard led by the prosecution. I have also stated that even in the statement of the accused (Ex.PE) it is quite clear that the seizing officer called two independent witnesses besides the Superintendent Customs Mr. J.M. Bhatia. Further it has come in the testimony of the witnesses that option was given to the appellant, who opted for search in the presence of a Gazetted Officer. The point as to whether a written notice is required to be given to a person before his search or not became the subjectmatter of scrutiny in a decision of this Court in Paramjit Singh v. State of Punjab, 1997(1) R.C.R. 293 , and in para No. 8 of the judgment his Lordship was pleased to answer the proposition as follows :

"8. The first and foremost question that came up for consideration is as to if provisions of subsection (1) of Section 50 of the Act had been complied with or not. There was no dispute raised that provisions of sub section (1) of Section 50 of the Act are mandatory. An offer has to be given to the accused that if they like their person can be searched or the vehicle searched in the presence of a Gazetted Officer or a Magistrate. The legislature has not provided any form of the offer to be given. It can be oral or in writing."

With the above observation of his Lordship I am in full concurrence because the reading of Section 50 does not make it mandatory for the prosecution that the notice must be in writing to the accused. I have already quoted the relevant piece of evidence in the earlier portion of this judgment in order to conclude that the provisions of Section 50 of the NDPS Act had been complied with even if it is assumed for the sake of argument that the search was from the person and not from the vehicle.

The next frontal argument which was raised by the learned counsel for the appellant is that there is no independent corroboration to the statements of P.W.1 and P.W.2 and in these circumstances the case of the prosecution becomes doubtful. Supplementing his argument, it was submitted that Sarvshri Manjit Singh and Roop Lal have not been examined by the prosecution. They have been given up on the usual plea that they have been won over by the accused and in view of this matter, the benefit of doubt should go to the appellant. I also do not see any merit in this contention firstly because of the fact that the accused, who could possibly examine these two witnesses in defence, but chose not to examine them so as to put some light as to whether the recovery has been effected in the manner as stated by the prosecution or not. No doubt it is for the prosecution to prove the charge beyond reasonable doubt and that it cannot bank upon the omission which might be committed by the accused. Yet I have to see whether the evidence as led by the prosecution on the record, still makes the case having been proved beyond reasonable doubt, though the statements of Manjit Singh and Roop Lal had not been recorded. In this regard I have to see the conduct of the seizing officer from the very beginning. Had his intention been malicious right from the very beginning, he could have avoided the procurement of the two independent witnesses. He has not done so. He took all sincere efforts for the association of the two independent witnesses, but unfortunately for the prosecution, those witnesses have been won over by the accused. The accused did not take the courage to examine those witnesses in defence. He could conveniently even crossexamine those witnesses with the permission of the Court, but he did not do so.

Independent corroboration is a rule of prudence and for the satisfaction of the conscience of the Court. This Court is of the view that in such like cases the Legislature has already afforded protection to the accused to be searched by giving an option to him whether such person would like to be searched in the presence of a Gazetted Officer or a Magistrate. What the socalled independent witnesses, if associated, would render assistance to the Court when the statement of a Gazetted Officer or a Magistrate is already before the Court for scrutiny. The Legislature has purposely used the words Magistrate and the Gazetted Officer in Section 50 of the NDPS Act because certain process appears to have been granted to such officers who can even direct the seizing officer not to conduct the search in case they find that no ground is made out for the search. At the cost of repetition I say that the courts should scrutinise what type of evidence has been led by the prosecution and whether their statements should or should not be believed; whether their testimonies have been shattered and whether a reasonable dent has been created in their statements. Quality of evidence has to be seen and not the quantity as envisaged in the Evidence Act. If the statements of P.W.1 and P.W.2 are truthful in nature and if they have no grouse against the appellant, who was a foreigner and who appeared at the place of detection per chance, full allowance should be given to the prosecution witnesses, while scrutinising their evidence. Thus I repel this argument of the learned counsel for the appellant also.

It was then submitted by the learned counsel for the appellant that in the recovery memos. prepared at the spot, the minor details, such as to the timings, have not been given. It has not been stated in the seizure memos. at what point of time those were started and at what point of time those were concluded. The argument is very weak to be accepted. Every possible plea which might be advanced by the appellant is not supposed to be incorporated in the proceedings at the spot because these documents are, in fact, a corroborating factor, nothing else.

It was also submitted by the learned counsel for the appellant that the grounds of arrest as required under Section 52 of the NDPS Act have not been supplied to the appellant at the time of the arrest, making the entire seizure as illegal. I do not subscribe to this argument. Firstly, the grounds of arrest were made known to the appellant that he was being apprehended both under the Customs as well as under the NDPS Acts. and secondly when the memo. has even been attested by the appellant, the noncompliance of the provisions of Section 52 of the NDPS Act should be treated as directory and not mandatory.

It was then submitted by the learned counsel for the appellant that the link evidence in this case is totally missing and it cannot be ruled that the sample of the charas which was sent to the office of the Chemical Examiner, might have been tampered with. Again this argument is faulty. It may be mentioned here that the contents of the articles seized were tested at the spot by the kit and the response was in the affirmative. Be that as it may, the evidence which has been led by the respondents would show that sanctity of the sample and bulk of the charas remained intact. The statement of P.W.3 Smt. Surinder Kaur Mayal is to the effect that she was incharge of the Malkhana and on 29.4.1996, 1600 grams of Charas duly sealed in a parcel along with other articles was deposited with her by Shri S.S. Chadha, Inspector Customs P.W.1. The charas was duly sealed with the seal bearing impression 82 Customs. The seals were intact and she handed over the sample on 8.5.1996 to Shri S.S. Chadha, Inspector Customs, for delivery in the office of the Central Revenue Laboratory, New Delhi. It may be mentioned here that the investigation of the case at the spot continued upto late hours on 28.4.1996. P.W.1 Shri S.S. Chadha also stated that he remained busy in the investigation on that day and due to that reason all the parcels were deposited in the Malkhana on 29.4.1996, as the Malkhana was closed by 5.30 P.M. on the day of recovery. It has further come in the statement of P.W.1 that he carried the sample parcel to the Laboratory on 9.5.1996 and received it from the Malkhana on 8.5.1996. It was deposited in the Laboratory on 9.5.1996. The report of the Chemical Examiner has also certified that the sample of the Charas bore the seal. The specimen of the seal has also been inscribed on Exhibit PH. Thus, there is no doubt in my mind that the sanctity of the sample of the Charas was not spoiled at any point of time when it remained in the custody of the Customs authorities.

Faced with the legal and factual defects, the learned counsel appearing on behalf of the appellant referred to several citations of the Hon''ble Supreme Court as well as the other High Courts and first in the line is T.P. Razak alias Nagappan Razak v. State of Kerala, 1996 Supreme Court Cases (Cri) 57, in which it was held that the provisions of Section 50 of the NDPS Act are mandatory in nature. If the Police Officer wants to search a person on the basis of prior information about his having brown sugar in his possession, the searching officer is obliged to inform him that if he so requires he shall be produced before a Gazetted Officer or a Magistrate. Further it was held in this authority that if there is no corroborative evidence in the shape of F.I.R., Mahazar or independent witness, corroborating the provisions of Section 50 of the NDPS Act, in such a situation no reliance can be placed on the alleged search and the recovery of the brown sugar. The citation is hardly applicable to the facts in hand. I have already quoted evidence in the earlier portion of this judgment, which will show amply that opportunity was afforded to the appellant. It was not a case where F.I.R. was recorded. It is a case which is initiated on a private complaint filed by the Customs Inspector. There are specific averments in the complaint. There is positive evidence coming from the mouth of the oral witnesses. The petitioner was given option. He opted for a Gazetted Officer. P.W.2 was called and in the presence of the independent witnesses and the Gazetted Officer, search was conducted. Reliance was also placed on Mohd. Saleem v. The State of Delhi, 1997 JCC 412; Afsar Hussain v. National Capital Territory of Delhi, 1998(44) DRJ 37; and State of Punjab v. Om Parkash, 1997 Crl.L.J. 4611. I have the occasion to go through these authorities. None is applicable to the facts in hand. Rather in State of Punjab v. Om Parkash (supra) it has been held that the provisions of Sections 52 and 57 of the NDPS Act are not mandatory in character, and no benefit can be given to the appellant unless he shows that some prejudice has been caused. In the present case of every document prepared at the spot, copy was supplied to the accused. There was no delay in the deposit of the case property with the Malkhana of the Customs Department. Section 50 of the NDPS Act has been complied with. Thus, the appellant cannot take the benefit of the case law cited above.

Learned counsel for the appellant then referred to Salim s/o Abdul Razzak and another v. Narcotic Control Bureau, Delhi Zonal Unit, New Delhi, 1997 Crl.L.J. 2324. This authority is also distinguished on facts. In the cited case the evidence regarding the offer of search was held to be doubtful which is not so in the present case. Similar on facts are the citations reported as Sukhwinder Singh v. State of Punjab, 1997(1) C.C. Cases 501 (HC); Sadhu Singh v. The State of Punjab, 1997(2) C.C. Cases 7 (HC); and Mohd. Saleem v. State of Delhi, 1997(1) C.C. Cases 402 (HC), and can be distinguished. The citations of Ravinder Singh v. State of Punjab, 1997(1) C.C. Cases 302 (HC); and Jasbir Singh @ Shaka v. State of Punjab, 1996(2) C.C. Cases 308(HC); are also not helpful to the appellant. Lastly the reliance was placed on Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1995(1) C.C. Cases 108 (SC). This authority is also distinguishable because there was no failure on the part of the prosecution to provide option of search to the accused. Every case has to go by facts. The case law has to be applied only if the facts are established first. At the cost of repetition, it can be said that the proved facts are as soon as the appellant appeared on the scene, a suspicion arose; offer was given to the appellant, who opted for search by a gazetted officer. P.W.2 was called besides two independent witnesses and thereafter the incriminating article was recovered from the tool box of the motorbicycle of the appellant. The accused could not produce any licence or permit for the possession of the incriminating article, i.e., Charas, which was tested at the spot at the first instance and then from the Laboratory and the Chemical Examiner certified the same as Charas. Grounds of arrest were given to the appellant. Special report was not required to be sent and even otherwise the noncompliance of the provisions of Sections 52 and 57 of the NDPS Act were directory. The accused has not been able to show that any prejudice has been caused to him.

In the light of the above discussion I am of the considered opinion that the present appeal is totally devoid of any merit and the same deserves to be dismissed. I order accordingly. Intimation be sent to all the concerned about the decision of this matter.