P. Ahammed Koya vs State of Kerala

M.M. Pareed Pillay, J.—Appellant is the accused in S.C. 143 of 1989 of the Assistant Sessions Court, Badagara. He was charged u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act'') for having been found in possession of 115 grams of Opium. The Assistant Sessions Judge convicted and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1,00,000/-. In default of payment of fine he has to undergo rigorous imprisonment for a further period of two years. Prosecution alleges that on 7-12-1987 at about 3.45 p.m. the accused while travelling in a bus belonging to Kerala State Road Transport Corporation was found in possession of 115 grams of Opium. P.W. 1 Superintendent of Special Customs Preventive Unit got information that smuggled gold was carried by a passenger in a bus. He proceeded towards Quilandy. He checked vehicles coming from the northern side at Chengottukavu. The bus coming from Payyannur to Perinthalmanua was stopped at Chengottukavu. Accused was one of the passengers in the bus. P.W. 1 searched the body of the accused in the presence of P.W. 4 and other independent witnesses. A packet wrapped in a sheet of newspaper was found in his underwear pocket. Biack sticky substance suspected to be Opium was found in the possession of the accused. It weighed 115 grams. P.W. 4 has corroborated the evidence of P.W. 1. P.W. 1 recorded Ext. P2 statement of the accused. P.Ws. 2 and 3 who are witnesses in Ext. P1 mahazar supported the evidence of P.W. 1 regarding the seizure of the packet from the accused.

The learned counsel for the accused submitted that Ext. P1 and the evidence of P.Ws. 2 and 3 do not agree and that alone is sufficient to suspect the prosecution case. In Ext. P1 it is stated that P.Ws. 2 and 3 came to the place of occurrence as required by the Superintendent of the Special Customs Preventive Unit. P.Ws. 2 and 3 stated that they happened to be there quite casually. P.W. 1 has also stated so. Counsel for the accused submitted that in view of the evidence of P.Ws. 1 to 3 as aforesaid the version in Ext. P1 cannot be true and as the prosecution case from the start is shrouded in suspicion the accused is entitled to benefit of doubt. The above inconsistency is not in any way detrimental to the prosecution case especially when the accused has confessed to the possession of the contraband article.

It is contended by the accused that there is no evidence to hold that P.W. 1. is an authorised officer u/s 42 of the Act and so the prosecution has no legal validity. Section 53 enables the Central Government after consultation with the State Government by notification to invest any officer of the departments of Central Excise, Narcotics, Customs, Revenue, Intelligence or Border Security Force or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under the Act. in exercise of the powers conferred by Section 53(1) the Central Government by order dated 14-11-1975 has empowered the officers of and above the rank of Inspector in the Departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers and perform the duties of an officer in charge of a police station for the investigation of offences under the Act. In view of the notification there is no merit in the contention that P.W. 1 is not an authorised officer who is empowered u/s 42 to make any search. It is also pertinent to note that when P.W. 1 was cross examined, no question was put to him challenging his competency under the Act to search the accused.

Ext. P2 statement of the accused which is admitted by him shows that he was searched by P.W. 1 and Opium was seized from him. Accused while questioned u/s 313 Cr. P.C. admitted that he had signed Ext. P2. Accused contended that Ext. P2 confession before P.W. 1 who is invested with powers of an officer in charge of the police station u/s 53 of the Act is inadmissible in evidence u/s 25 of the Evidence Act. Section 53 of the Act invests officers of certain departments with powers of an officer in charge of a police station Counsel for the accused contended that P.W. 1 being invested with such a power is virtually a police officer and so the confession of the accused before him is not admissible in evidence.

The question to be considered is whether P.W. 1 an officer invested with powers u/s 53 of the Act analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence is a police officer within the meaning of Section 25 of the Evidence Act.

The Supreme Court had occasion to consider whether Customs Officers to whom confessional statements were made could be said to be police officers within the meaning of Section 25 of the Evidence Act. It was contended by the prosecution that powers of arrest, search, seizure and recording of evidence conferred on Customs Officers under the Customs Act are not sufficient to make them police officers coming within Section 25 Evidence Act. The rival contention was that the officers on whom such powers are conferred are really police officers irrespective of their official designation. The Supreme Court in The State of Punjab Vs. Barkat Ram, held that the primary function of the police is prevention and detection of crime while customs are mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties i.e. they are more concerned with the goods and customs duty, than with the offender. The Supreme Court held that the duties of the Customs Officers were substantially different from those of the police officers and merely because they possessed certain powers having similarity with those of police officers it would not make them police officers within the meaning of Section 25 of the Evidence Act.

In Balkishan A. Devidayal v. State of Maharashtra (1980-4-S.C.C. 600) the question which arose for determination was whether an Inspector of the Railway Protection Force enquiring into an offence u/s 3 of the Railway property (Unlawful Possession) Act, 1966 can be said to be a "police officer" u/s 25 Evidence Act. The Supreme Court, after a review of the case law concluded thus:

In the light of the above discussion, it is clear that an officer of the RPF conducting an inquiry u/s 8 (1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making as investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the magistrate concerned u/s 173 of the Code, which has been held to be the clinching attribute of an investigating ''police officer''. Thus, judged by the test laid down in Badku Joti Savant, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a ''police officer'' within the meaning of Section 25 of the Evidence Act....

Thus, the legal position is that even if an officer is invested under any special law with powers analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence, he does not ipso facto become a police officer within the meaning of Section 25 Evidence Act, unless he has the power to lodge a report u/s 173 Cr. P.C. In a recent case [Rajkumar Karwal v. Union of India (1990-2- S.C.C. 409)] the Supreme Court considered whether officers of the Department of Revenue Intelligence who have been invested with the powers of an officer-in-charge of police station u/s 53 of the Act are "police officers" within the meaning of Section 25 Evidence Act and the confessional statement of the accused recorded by them during the investigation of a case is admissible against him. The Supreme Court held that a confessional statement recorded by such officer is admissible in evidence as against him. In view of the settled legal position, it cannot be held that Ext. P2 is inadmissible in evidence.

P.W. 1 is invested with the powers u/s 53 of an officer-in-charge of a police station investigating a cognizable offence. But he has no power to lodge a report u/s 173 of the Cr. P.C. Any person on whom power to investigate under Chapter. XII of the Cr. P.C. is conferred can be said to be a police officer. The essential attribute of a police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet u/s 173 of the Cr. P.C. Under the Act P.W. 1 has no such power. As the provisions of the Act do not vest in the officers appointed u/s 53 all the powers of a police officer under Chapter XII of the Criminal Procedure Code including the power to submit a report u/s 173, it is not possible to hold that confession made before P.W. 1 is hit by Section 25 of the Evidence Act.

In Ajay Dixit Vs. State of U.P. and Others, the Supreme Court held thus:

If the evidence of extra judicial confession is reliable, trust-worthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon.

There is neither any rule of law nor of procedure that evidence furnished by confession cannot be relied upon unless corroborated by some other credible evidence. What the Court has to guard itself is that the confession comes from a source unpolluted and free from every suspicion. In a case where the testimony of the witness who speaks about the confession is unbiased and free from any blemishes and he not in any way antagonistic to the accused the Court cannot ignore it whimsically or arbitrarily. If the confession is voluntary and true, it can certainly constitute the basis of a conviction. Accused has no case at any time that he was threatened and coerced by P.W. 1 to give Ext. P2 statement. There is no law that confession constitutes an inferior category of evidence and the Court should discard it. The value of the evidence surely depends upon the veracity of the witness to whom it was made. In Narayan Singh and Others Vs. State of M.P., the Supreme Court held that it is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. The veracity of the confession would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak about it. Viewed from any angle P.W. 1''s evidence stands unassailed. As the accused himself admitted his signature in Ext. P2 statement and as there is corroboration of the evidence of P.W. 1 with regard to the seizure of the contraband article from the accused, evidentiary value of the confession cannot just be ignored. In every case where the confession statement of an accused is reliable and beyond reproach, the Court can certainly accept it as any other admissible evidence.

Another contention of the accused is that statutory right available to him was denied as he was not taken before the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the Magistrate as provided u/s 50 of the Act. Counsel submitted that the failure to produce the accused before the nearest Gazetted Officer or Magistrate is violative of the mandates of Section 50 and this has vitiated the trial. Counsel relied on Hakam Singh v. Union Territory. Chandigarh (1988 F.A.J. 396) and contended that the accused being not informed of his right u/s 50 before he was searched has caused material prejudice to him and so conviction is illegal. In Jayapalan v. State (1989 F.A.J. 43) the Delhi High court held that the Investigating Officer ought to have given the option to the accused as to whether he desired to have the search carried out in the presence of a Gazetted Officer or Magistrate and only after ascertaining it search should have been carried out. The Court held that such an option was not given to the accused and that was detrimental to the prosecution. With great respect, I cannot agree.

Section 50 does not require the officer who wants to effect the search to ascertain the opinion of the accused as to whether he wants the search to be conducted in the presence of a Gazetted Officer or a Magistrate. A reading of the Section would clearly show that it is for the accused to make such a request before the search is made. Section 50 stipulates that if the person who is to be searched requires the officer that he should be taken before a Gazetted Officer or a Magistrate that should be done. Section 50 does not make it incumbent upon the officer who makes the search to ascertain the opinion of the accused in this regard. Whenever the accused requires that he be searched in the presence of a Gazetted Officer or a Magistrate, the officer who is duly authorised u/s 42 to make the search has to take him before a Gazetted Officer or a Magistrate. Section 50 (2) makes the position crystal clear. Section 50 (2) states that if such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate. Unless and until such a request is made by the accused, the officer is not bound to take the accused before a Gazetted Officer or a Magistrate.

It is contrary to all rules of construction to read words into an Act which are not there unless it is absolutely necessary to do so. [See AIR 1945 108 (Privy Council) ]. To say that P.W. 1 ought to have alerted the accused of his right to be produced before a Gazetted Officer or a Magistrate is to read something which is not there in Section 50 of the Act. Rules of interpretation do not permit the Court to do so unless the Section is meaningless or of doubtful meaning. In The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, Venkatarama Aiyar J. quoted the following observation of Lord Loreburn L.C. in Vickers v. Evans (1910-79-LJK B 955) :

We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.

If the Legislature wanted the officer to ascertain from the accused whether he desired to have the search before the Gazetted Officer or Magistrate, it could have been easily stated so in Section 50. Obviously that was not the intention of the Legislature. Section 50 gives the accused only the right to be searched before Gazetted Officer or Magistrate, if he so requires. It does not enjoin the officer to ascertain from the accused whether he wants to be searched before a Gazetted Officer or a Magistrate. When Section 50 is totally silent about it, Court cannot incorporate it. To do so would amount to legislation and not construction. In Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, the Supreme Court held :

In construing a statute it is not competent to any court to proceed upon the assumption that the Legislature has made a mistake and even if there is some defect in the phraseology used by the Legislature the court cannot aid the defective phrasing of an Act or add and amend, or by construction, make up deficiencies which are left in the Act.

It is useful to refer to the following passage in page 33 of Maxwell on Interpretation of Statutes (12th Edition):

It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.

In Thompson v. Goold & Co. (1910 A.C. 409 at page 420) Lord Mersey said:

It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.

From a reading of Section 50 it is not possible to hold that the officer who is empowered to search the accused is bound to bring to his notice of his right to be produced before a Gazetted Officer or a Magistrate. The section does not lead to any absurdity if availability of such aright is not made known to the accused. Contention of the accused that he was denied of an option provided u/s 50 and hence the entire trial is illegal is not tenable.

Another contention of the accused is that the sample was not properly sealed and sent to the Analyst. The Analyst''s report Ext. P3 shows that the scat on the packet was intact and found tallied with the sample seal provided. There is no evidence in the case to doubt the identity of the sample taken from the accused. P.W. l''s evidence was found trustworthy by the trial Court. To hold differently there is no material before this Court.

Next contention is that the chemical examiner who issued Ext. Pl was not competent to issue the certificate. As the Government have issued notification, it cannot be held that Ext. P3 certificate is without any validity. The certificate is admissible u/s 293 (1) read with Section 293 (4) (a) of the Cr. P.C.

Delay in sending the contraband article to the Court is another ground of attack on the prosecution case. The contraband article was received in Court on 14-12-1987 and it was sent to the Laboratory only on 2-3-1988. Ext. P4 shows that P.W. 1 had sent a forwarding note on 11-12-1987 itself. The failure to send the same by the Court to the Analyst immediately has not caused any prejudice to the accused as Opium is not an article which is likely to be decayed during the course of time. Ext. P3 also does not indicate of any difficulty encountered by the Analyst in analysing the sample. Section 54 of the Act contains a rule of evidence and lays down that in any trial under the Act the accused who fails to account satisfactorily for the possession of any incriminating drug, substance or material shall be presumed to have committed an offence in relation to such drug, substance, material. The burden is entirely upon the accused to account his possession of the contraband article satisfactorily, Section 54 states that unless and until the contrary is proved, it has to be presumed that the accused has committed an offence. Accused could not discharge his burden under the Act regarding the seizure of the contraband article from him.

There is no merit in the appeal. The appeal is dismissed.