Smt. Deviji and Another vs State of Bihar

S. N. Mukherjee, J.—All these four appeals arise out of the common judgment and order and as such they have been heard together and are being disposed of by this common judgment. These appeals have been directed against the judgment and order dated 19.7.2004 passed by Shri P.K. Shrivastava, Sessions Judge, Muzaffarpur in Trial No. 18 of 2003/18 of 2004 in N.D.P.S. Case No. 103 of 2000 wherein and whereunder the appellants have been convicted u/s 23 of the N.D.P.S. Act and sentenced, to undergo R.l. for 11 years each and further fine of Rs. one lac was imposed on each of the accused under the aforesaid Act and in default thereof they were convicted for further sentence to R.l. for two years each under the aforesaid Act.

All the appellants were charged u/s 23 of N.D.P.S. Act for carrying "Charas" by Amar Jyoti Bus, the value of which was Rs. 3,00,000/- and on demand by Custom Officer all of them failed to produce any valid document in support of possession, acquisition, importation of the said recovered 10 K.G. Charas which is in violation of Section 8 of the N.D.P.S. Act, committing an offence u/s 23 of the N.D.P.S. Act.

The case of prosecution in brief is that on 15.8.2000 at 2.30 A.M. the Customs Officers of Muzaffarpur intercepted Amar Jyoti Bus bearing registration No. BR-06D-2051 coming from Raxaul to Patna. The aforesaid appellants were found sitting in Bus on Seat Nos. 24, 25, 28, 29 and 30. On preliminary checking one lady accused, namely, Fatima was found concealing some articles in her body. On enquiry the male companion sitting by her side disclosed himself as Md. Shahid and husband of Fatima, accepting that Charas was concealed in the body of Fatima. Md. Shahid disclosed that the other co-accused persons, namely, Deviji, Muneshwar and Anil Kumar are the associates and appellant Deviji was concealing Charas in her body. Subsequently appellants Fatima and Deviji accepted that they had concealed Charas in their body. On their disclosure all the accused persons were brought to the Customs office, Muzaffarpur and for search and seizure. On requisition a lady constable of Central Excise, Muzaffarpur and two independent witnesses were deployed. According to the prosecution case the accused persons were given option as to whether they desire to be searched in presence of a Magistrate or before gazetted officer and on their desire the search and seizure were completed in presence of Superintendent of Customs, Muzaffarpur. The lady accused persons were searched by Mrs. Sangita, constable and three male accused persons were searched by Shri S.N. Singh. Inspector of Custom, Muzaffarpur. According to the case of the prosecution the mandatory provisions of Sections 41, 42, 43 and 50 of N.D.P.S. Act were followed. On search 4 K.Gs. of Charas was recovered from the body of the appellant Deviji which was kept and concealed in her person and 6 kgs. of Charas was recovered from the body of Fatima. It is alleged that the total weight of contraband Charas came to 10 K.gs. valued to Rs. 3,00,000/-. From the persons of the male accused persons, no contraband goods were recovered but on their statement and examination u/s 67 of N.D.P.S. Act, 1985, Md. Shahid stated that he had fitted the said Charas in the body of the lady accused persons in a hut near Dankan Hospital at Raxaul in presence of Anil Kumar and Muneshwar Sah, other accused persons in the complaint petition. It was admitted by the accused persons that earlier also they had brought the narcotics on the direction of Anil Kumar and delivered the same to Uttam Nagar, New Delhi. None of the accused persons produced any valid document in support of possession, acquisition, importation of the said Charas from Nepal to India and therefore, the seizure was made for violation u/s 8 of the N.D.P.S. Act and a copy of the seizure list was also handed over to the accused persons and in presence of the accused persons and independent witnesses, the sample of the charas was sealed and sent to the Chemical Examiner for chemical test. The chemical report has been received in which it has been found to be Charas as narcotics substance within the meaning of N.D.P.S. Act, 1985. In his statement Md. Shahid stated that Anil Kumar was bearing the cost of transportation and the bus fare for the journey between the Raxaul and Patna. Search and seizure memo was prepared, cash amount of Rs. 1340/- was recovered from the possession of appellant Anil Kumar and no cash was found from the possession of other accused persons. Cognizance was taken by the learned Sessions Judge u/s 23 of the N.D.P.S. Act.

On behalf of the defence it was urged that accused persons are innocent and they have been falsely implicated. On behalf of the defence one witness has been examined.

The prosecution has examined seven witnesses, P.W. 1 is Satvendra Narain Singh, who is Inspector, Central Excise, Muzaffarpur. His evidence is that on 15.8.2000 he alongwith senior Inspector Anup Kumar Singh and five constables were engaged in vehicle checking at Ram Dayalu Nagar. They suspected five persons travelling in Amar Jyoti Bus concealing some articles. Three persons were male and two were females. Evidence of this witness is that accused Shahid disclosed that contraband goods are being carried by female accused kept in their bodies. The female accused persons also confessed their guilt. They were taken to Custom office at Muzaffarpur. The evidence of this witness is that the accused persons were given option and they were asked as to whether they want to be searched by a gazetted officer or a Magistrate. All the accused persons have given their consent and in the handwriting of accused Anil Kumar the consent was taken. This witness has proved aforesaid consent memo as Exhibit-1. Five bus tickets were recovered from the aforesaid accused persons, which have been marked as Exts. 2/a to 2/g and after observing all the formalities, the search was made by the lady constables as earlier on requisition lady constables were called. The evidence of this witness is that charas was fitted in the body of female accused persons by Md. Shahid in presence of co-accused Anil Kumar and Muneshwar Sah. From the bodies of female accused persons 10 Kgs. of Charas was recovered. The seizure memo has been proved as Exhibit 3. Panchnama was prepared on which signature of witness Surendra Kumar was taken. Statement of the accused persons were recorded which were marked as Exts. 5 and 5 series. The evidence of this witness goes to show that the sample of contraband article was sent and test report was obtained. This witness has proved test report, Ext. 8. This witness is complainant of this case. This witness stated that he before taking the statement of accused had given warning that the statement can be used against them. As regards accused Anil Kumar it was stated by the witness that according to the version of Anil Kumar he was employed in Priority Express Courier Private in Delhi. On enquiry also he was found to be an employee of Courier of Delhi.

From the evidence of this witness it appears that in the seizure memo (Ext. 3) it is not clear as to what quantum of Charas was recovered from which accused persons. Seizure memo (Ext. 3) indicates that 10 Kgs. of Charas was recovered. In the seizure memo there is specific mention that at serial No. 1 and Serial No. 2 separate mention of the quantity of the Charas has been made 6 Kgs. and 4 Kgs. respectively with assessable value of Rs. 1,80,000/- and 1,20,000/- respectively bearing the L.T.Is. of appellants Smt. Fatima and Smt. Deviji as also appellants Md. Shahid, Muneshwar Sah and Anil Kumar. It has been submitted by the appellants that on the seizure list, there is no signature of the Gazetted Officer and the Magistrate. In examination-in-Chief this witness has stated that accused persons were produced before Superintendent of Customs a Gazetted Officer. In the statement of the accused persons (Ext. 1) they were asked about their option as to whether they want to be searched by the Gazetted Officer or the Magistrate. The accused persons had stated that they have no objection where they may be produced. As it appears from the cross-examination of this witness that there is no signature of any gazetted officer on the seizure memo. In his cross-examination this witness has stated that sample had been brought on the requisition and demand of Spl. P.P. and the sample is in sealed cover. The signatures of the accused persons in the sample have been proved and samples were marked as Ext. I and l/A.

P.W. 2 is Sangita Devi, a constable in Central Excise at Muzaffarpur. She made search of the body of two female accused persons from whose possession 10 Kgs. of charas were recovered. In her cross-examination this witness has stated that she does not know as to where the female accused persons were caught. P.W. 3 is also a constable in Central Excise Department. On 15.8.2000 he was posted at Muzaffarpur. He also supports the case of the prosecution stating that there were recoveries from the possession of two females. The five travellers were taken to Central Excise Office. This witness is not in position to say as to whether Rs. 1340/-was recovered from the possession of Anil Kumar or not.

P.W. 4 Surendra Kumar is seizure list witness. He has stated that from the person of one female Seven packets were recovered and from other female accused three packets were recovered. The seizure memo of the charas were prepared in his presence and he signed on them, which is marked as Ext. 2/C. According to this witness Panchanama (Ext. 4) was prepared in his presence and the same bears his handwriting signature. In his presence accused Muneshwar Sah and Anil Kumar made their signatures which are marked as Exts. 2, 2/d and 2/e. This witness identified all the five accused persons in the Court. This witness has also stated that there is no signature of Gazetted Officer on the seizure list and in his presence no written warning was given to the accused persons whose whereabouts were given by the Custom Officer. His evidence is that the recovered charas was sealed in one packet and again he stated that it was sealed in two packets and he signed on both packets.

P.W. 5 is another constable. His evidence also relates to recovery of 10 Kgs. of Charas from possession of the female accused persons. Seizure list of the recovered charas was also prepared.

P.W. 6 Ishwar Dayal is Customs Superintendent in Muzaffarpur. On 7.2.2001 he was Customs Superintendent in Muzaffarpur. According to him (this witness) S.D.J.M. (East), Muzaffarpur had gone to his office. He had seen the seized charas. It was weighed in his presence and he gave a certificate to that effect. The said certificate is marked as Ext. 12. In his cross-examination he stated that he is not in a position to say about the quantity of the charas. P.W. 7 is the Customs Inspector, Alok Kumar Singh. His evidence is that he was the member of the checking party. In his presence at about 1.30 P.M. Amar Jyoti bus was searched two females and three males were interrogated. Md. Shahid Appellant told that two females were with him and in their bodies there was charas. According to evidence of this witness, all the five persons were taken to custom office where two independent witnesses and one lady constable were called His evidence further indicates that a lady constable Sangita Devi made a search of the body of the two females and from the body of Deviji 5 Kgs. charas was recovered and from the body of Fatima 6 Kgs. charas was recovered. There was no recovery from the possession of any male accused persons. Seizure list was also prepared. This witness also stated that he has not put his signature on the seizure list nor Gazetted Officer of the department has put his signature on the seizure list nor the place of recovery has been mentioned. His evidence further indicates from whose possession how much quantity was recovered have not been mentioned. He does not remember whether option under the mandatory provision was obtained.

On behalf of the defence one Noor Jahan (D.W. 1) has been examined who stated that appellant Md.Shahid is her husband, there is no second marriage of appellant Shahid.

In this case a number of documents have been produced as stated by the prosecution. Ext. 1 is the option asked from the accused persons u/s 50 of the N.D.P.S. Act. Ext. 2 series are the signatures of the accused persons on the seizure memo. Ext. 3. Ext. 4 is the Panchnama bearing the signatures of the accused persons as well as the witnesses. In the aforesaid Panchnama the factum of confession of the accused persons in respect of recovery of charas in which the role of the appellant Anil Kumar as the person, who was leading with the aforesaid operation have been mentioned. This Panchnama has been marked as Ext. 4 which bears not only the record of confession of the accused persons but also evidence of seizure of the contraband articles. These documents attribute the main role of dealing with charas to Anil Kumar. Exts. 5 to 5/C are the statements of accused persons for smuggling of Charas from Nepal. They stated about their associates being the appellants including appellants, Smt. Deviji and Smt. Fatima. The appellant Fatima is second wife of Md. Shahid as stated in the confession of Md. Shahid (Ext. 5). His confession also indicates that Charas was tied with the body of the second wife Fatima, and another woman, Deviji. His confession also indicates about the role of Anil Kumar in dealing with the charas and it was Anil Kumar who is the person from whom the charas was transported. There was no recovery from his possession and there was no recovery from Muneshwar Sah, Anil Kumar. There is recovery from female accused Fatima and Smt. Deviji. Appellant Deviji also had given the statement stating recovery. She is neighbour of Appellant Fatima and her husband, appellant Md. Shahid. Their confession have been marked as Exts. 5/a and 5/B. There is also confessional statements of other appellants namely, Muneshwar Sah, Ext. 5/C. Anil Kumar, Ext. 5/d who have confessed their guilt about illegal transportation of charas. The contraband article was forwarded for examination vide memo Ext. 6 and examination report is Ext. 11.

On behalf of the defence, it has been stated on behalf of Md. Shahid that no contraband article was recovered from his possession and that the accused persons are innocent. There is no evidence against this appellant regarding recovery of contraband articles. It has been contended that the confessional statement of the appellants is no ground for conviction. It is submitted that on the basis of statement of co-accused persons the appellants have been convicted. There is no compliance of mandatory provision of Section 50 of N.D.P.S. Act.

On behalf of appellant Anil Kumar, it is submitted that nothing incriminating has been recovered from his possession except sum of Rs, 1340. With reference to evidence of P.W. 1 at paragraph 15 it has been stated that the seizure list did not contain the signature of Magistrate or the gazetted officer nor he had given any option to the Magistrate or the gazetted officer for getting the appellants searched before them. The further defence case is that there is violation of mandatory provision of Section 50 of the Act. It has also been contended that in their confessional statement the appellants Deviji and Fatima have not disclosed the name of the appellant Anil Kumar. It has also been submitted that search and seizure memo (Ext. 3) have not been prepared separately in respect of each and every accused and the same has not been signed by P.W. 6, Superintendent of Customs before whom search and seizure was said to be effected, and hence the seizure list was not prepared in presence of either gazetted officer or the Magistrate as provided u/s 50 of the N.D.P.S. Act and thus the seizure is illegal. It has, therefore, been indicated that it was wrongly observed by the learned Court below that the search and seizure was done in presence of the gazetted officer.

P.W. 6 the Superintendent of Custom pointed out that he is not in a position to say that as to what quantity of contraband articles were recovered. The main plank of defence contention is non-compliance of Section 50 of the N.D.P.S. Act. A Division Bench decision of this Court reported in [2004(1) East Cr.C. 315 (Pat.) Cr, Appeal No. 260 of 2001] by quoting various decisions of the apex court that provisions of Section 50 of the N.D.P.S. Act are mandatory. Section 50 of the N.D.P.S. Act lays down as follows:--

Section-50-"Condition under which search of persons shall be conducted- (1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer or any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) ... .... .....

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) ..... .... ...."

A Constitution Bench of the Supreme Court in State of Punjab Vs. Baldev Singh, etc. etc., while considering the question observed:

"Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the investigating Officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act."

It is worthwhile to state that P.W. 1, the Inspector, has stated that the Superintendent of Customs is Gazetted Officer and in his presence search was said to have been made has not put his signature on the seizure list. It is not clear from the evidence of P.W. 6, Superintendent Customs whether he was posted at Muzaffarpur on the date of search. He has not stated anything about search and seizure. However, the statement of the accused persons and the endorsements thereon indicate that search was conducted in presence of Superintendent of customs.

It has been indicated that the Constitution Bench of the Supreme Court, as reported in State of Punjab Vs. Baldev Singh, etc. etc., , held that it is an obligation of the empowered Officer to comply with the provisions of Section 50 of the N.D.P.S. Act. It was held as follows:--

"Similarly if the person concerned requires, on being so informed by the empowered Officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search bad.

(emphasis added)

It was further held that:

"The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal."

In the aforesaid decision it was held that the safeguard and protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of the evidence derived from such search.

In the case of K. Mohanam vs. State of Kerala, (2000)10 SCC 222, after noticing the aforequoted finding in Baldev Singh''s case, the Supreme Court observed:

"If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communication to him that he had a right under law to be searched so....."

(emphasis added)

The prosecution no doubt proved that the suspects were informed of their right to be searched before a gazetted officer but it is also required that on being so informed by the empowered Officer or otherwise that the search be conducted in presence of the gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal. It has been pointed out that P.W. 6 is the Superintendent of Customs. His evidence is that the seized charas was weighed in his presence and he gave a certificate to that effect which is marked as Ext. 12. P.W. 1 the Complainant, Investigating Officer, then Inspector, Central Excise Office, Muzaffarpur, had stated that Superintendent of Custom is a gazetted officer and in his presence search was made but he had not put his signature on seizure list. But it appears from the voluntary statement of the appellants Deviji and Fatima (Exts. 5A & 5/B) and other-appellants (Exts. 5, 5/C and 5/d) that search was conducted in presence of Custom Superintendent by lady constables. There appears to be such endorsements on the aforesaid documents.

An opinion was exercised by the suspects concerned and it was imperative on the part of the Investigating Officer to get the search conducted in presence of a gazetted officer and in paragraph 3 of his evidence, P.W. 1 had stated that in presence of Superintendent of Customs seizure was affected by the female constable, thus there is documentary evidence besides his oral statement that in presence of Superintendent of Customs search and seizure were affected. These are documents of confession coupled with recovery of contraband charas testifying the same (Exts. 5 to 5/d).

The defence contention in the memo of appeal, Cr. Appeal No. 660 of 2004, is that the mandatory provisions u/s 50 of N.D.P.S. Act has not been followed in the instant case. Seizure memo was said to have been prepared in Customs office. Option was exercised by the accused persons for search to be conducted by the Gazetted officer, (Ext. 1). It appears that the prosecution has given evidence to prove that the search was conducted in presence of the Custom Superintendent, a gazetted Officer. (Exts. 5 to 5/d). The Investigating Agency appears to have followed the procedure as envisaged by the statute. There appears to be compliance on the part of the Investigating authority to render account of evidence regarding observance of Section 50 of the N.D.P.S. Act in the matter of search conducted in presence of the gazetted officer or a Magistrate. The prosecution has given evidence of the due safeguard or protection to be searched in presence of the gazetted officer or a Magistrate as incorporated in Section 50 of the N.D.P.S. Act having been followed scrupulously. The Supreme Court laid emphasis in the said Constitution Bench judgment that the Court must be satisfied about due compliance of Section 50 of the N.D.P.S. Act requirements and the prosecution should get opportunity to establish such compliance. The prosecution had been given opportunity and the same was availed. Search statements (Exts. 5 and 5/d) mainly of appellants Fatima and Deviji bear signature or endorsement of a gazetted officer.

The aforesaid Constitution Bench judgment has been followed in subsequent decision of the Supreme Court also as reported in (2001)3 SCC 28; Gurbax Singh vs. State of Haryana, as reported in Kalema Tumba Vs. State of Maharashtra and Another, .

The confession of the accused persons, namely, Muneshwar Shah, Md. Shahid and Anil Kumar from whose possession there was no recovery recorded vide Ext. 5 series before the Customs and Excise officials have to be assessed in the background of legal position. The confession of accused persons as well as co-accused persons before Customs officials, under the given circumstances would be inadmissible in the evidence. In a case u/s N.D.P.S. Act while considering the validity of the confessional statement of the accused persons to the Superintendent of Excise, it was held by the Hon''ble Supreme Court that the conviction based only on the confession of the accused and also other accused from whom offending article was recovered, the conviction and sentence passed against the appellant cannot be upheld. The aforesaid position of law was delineated by the Supreme Court as reported in AIR 2001 Supreme Court page 2422 relying upon the decision of the Apex Court as reported in 1964 S.C. 828.

In view of the aforesaid discussion since the prosecution has proved the case against Smt. Deviji and Mrs. Fatima in Cr. Appeal No. 597 of 2004, we do not feel inclined to interfere with the finding of the Court below in this regard. The said appeal is dismissed. But the charge against appellants, Muneshwar Sah, Md. Shahid and Anil Kumar u/s 23 of the N.D.P.S. Act has not been proved beyond reasonable doubt. The judgment and sentence against appellants Muneshwar Sah, Md. Shahid and Anil Kumar are set aside. They shall be set at liberty forthwith if not required in any other case. The aforesaid Cr. Appeal Nos. 621 of 2004, 642 of 2004 and 660 of 2004 are allowed.

Manohar Lal Visa, J.

I agree.