Union of India Vs. Munna
and Anr  Insc 503 (27 August 2004)
Arijit Pasayat & C.K.
Thakker (Arising out of S.L.P. (Crl.) No. 4126 of 2003 Arijit Pasayat,J.
The Union of India calls in question legality of the judgment rendered by a
Division Bench of the Allahabad High Court holding that respondent no.1
(hereinafter referred to as the 'accused') was not guilty of the offence
punishable under Section 20(b)(2) and Section 23 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short the 'NDPS Act'). The Trial Court
i.e. the 1st Additional Sessions Judge, Sidharthnagar had convicted the accused
guilty for the aforesaid offences, and sentenced him to undergo imprisonment
for 15 years and pay a fine of rupees one lakh with default stipulation.
Accusations which led to the trial of the accused are essentially as
On 17.10.1994 at about 6.30 p.m. Inspector of Customs Sri B.K.
Srivastava, Incharge Customs Station Khunwa, District Siddharthnagar,
received an information that a person carrying Charas from Nepal shall be
passing through the Customs Barrier (Khunwa Check Post).
Consequently, Sir B.K. Singh, complainant (PW-1) summoned two independent
witnesses and took position near the Barrier. At about 7.00 p.m. a Jeep bearing No. UTD 5560 was seen coming from Nepal side and when it reached near the
Barrier, the Customs Officer stopped the Jeep for its checking. Accused who was
the sole occupant of the Jeep stopped the vehicle. The Customs Officer in
presence of witnesses told the accused that search of his person and the Jeep
is to be taken because there is information that charas is concealed in the
cavity of the Jeep. He was also informed that if he so desired he shall be
taken before a Gazetted Officer for the purpose of search. Accused replied that
the Officer may himself take his search and there was no necessity to take him
before any Gazetted Officer. The Officer along with witnesses on inspection of
the Jeep was satisfied that the Jeep contained a Cavity. Subsequently the Jeep
along with the accused was brought to the Customs Office and in the presence of
witnesses cursory search of the Jeep resulted in the discovery of a cavity and
from smell it was clear that in this cavity charas was cleverly concealed. The
Officer immediately sent Sepoy Sri Saghir Ahmad to Badhni with a request that
Superintendent (Customs) Badhni may come immediately for the search of seized
jeep which contained charas in its cavity. The Superintendent came from Badhni
early in the morning at about 7.00 a.m.
next day and in his presence the search of the Jeep was conducted and charas
concealed in the cavity weighing 100 Kg. of the value of Rs.10,00,000/-, was
recovered. Samples were taken out, sealed in separate packets which contained
signature of the accused, witnesses and the officer and the remaining charas
was duly sealed. Since transportation of charas was in violation of Section 8
of the N.D.P.S.
Act, the Jeep containing the charas was also seized.
A Panchnama of the said recovery, interrogation and seizures was prepared at
the spot which were signed by the accused, witnesses and the Customs Officer.
The prosecution i.e. Union of India filed the criminal case no.68 of 1994.
According to the complaint, statements of the accused recorded by the
Inspector and the Superintendent are voluntary statements, and admissible in
In his voluntary statements recorded the accused clearly admitted the time,
place and mode of recovery of the seized charas which was cleverly concealed in
the Jeep driven by him. The statements are Exts.
Ka.2 and Ka.5 on the record.
The Customs Officer duly arrested the accused on 18.10.94 and produced him
before the competent court. One of the packets of the sealed sample of this charas
was sent to chemical examiner for analysis and a report from the chemical
examiner was received along with the envelope in which the sample was sent to
him. The report and the envelope were attached with the complaint and were Exts.
Ka-3 and Ka-4.
They were proved by PW-1. The report clearly established that the article
recovered from the possession of the accused was charas.
In order to substantiate the allegations four witnesses were examined. Sri
B.K. Srivastava, Inspector, Customs Station, Mahendra Singh (PW-2),
Superintendent Badhni who had come to the scene of occurrence on the next day
to supervise the recovery. Sita Ram (PW-3) @ Laddu is the witness of recovery.
Mantra Prasad (PW-4) is the Inspector Customs Khunwa. He was authorized by an
order dated 10.11.1994 by his superior officer to conduct the investigation in
the case and prosecute the accused.
On consideration of the evidence on record the Trial Court found the accused
guilty and recorded conviction as aforesaid. The same was challenged by an
appeal before the Allahabad High Court. Following points were urged to assail
legality of the judgment.
1. The accused was not in conscious possession of the contraband concealed
in the vehicle accompanied by the fact that source of information has not been
2. That there is non-compliance of Sections 42 and 43 of N.D.P.S.
3. That the only so called independent witness has not supported the
prosecution case. It casts serious doubt in the recovery of the contraband.
4. Failure of investigation to make full report of all particulars to his
immediate superior and non-compliance of procedure laid under Section 57 of the
N.D.P.S. Act, is fatal for the prosecution.
5. That no fair and proper option as required under Section 50 of the
N.D.P.S. Act was given to the accused before taking his search.
According to the High Court the factual position indicated that the accused
was not the real culprit. The owner of the vehicle and two other persons who
accompanied the accused for a part of the journey were real culprits. It came
to hold that the accused only possessed Rs.150/- at the time of his arrest and
he did not run away. In any event, the prosecution has failed to prove
conscious possession. It was also observed that there was violation of Section
42 of the Act.
The High Court felt that instead of accused, the authorities should have
gone after the owner of the vehicle and the other two persons who were
operating the same. The judgment of the Trial Court was set aside.
Learned counsel for the appellant submitted that the High Court has
proceeded on mere surmises and conjectures. The fact that accused was the
driver and he had Rs.150/- at the time of arrest or that he was having a salary
of Rs.1500/- per month are not relevant for adjudicating the guilt or otherwise
of the accused. Undisputedly, on the basis of voluntary statements of the
accused recorded by the Customs authorities, he had knowledge about contraband
being carried in the vehicle. The two persons to whom the High Court had made
reference were for a short time traveling in the vehicle. It is true that owner
of the vehicle may have some role to play in the crime but that is not
sufficient to hold that the accused was not guilty. There was specific evidence
on record about information given to the superior authorities and the High
Court has not considered the same and erroneously concluded violation of
Section 42. It was therefore submitted that the High Court was not justified in
Learned counsel for the State of U.P. supported the stand of the appellant.
There is no appearance on behalf of the accused in spite of service of notice.
We find that the High Court has not analysed the evidence in it proper
perspective and has acted on surmises and conjectures. It has also acted on
irrelevant materials leaving out of consideration relevant matters. The fact
that there was admission of the accused before the Customs authorities has not
been dealt with by the High Court. Such admission is not hit by either Section
25 or Section 26 of Indian Evidence Act, 1872 (in short the 'Evidence Act').
The effect of such admission was a relevant factor. Additionally, the effect of
Section 54 which raises presumption from possession has not been considered and
on the contrary, burden has been placed on the prosecution and it has been held
that prosecution was to establish that the possession was conscious. The effect
of the evidence relating to dispatch of information to the superior authorities
has also not been considered.
In view of the unsatisfactory analsysis of evidence and erroneous approach
to the statutory prescriptions, we consider this to be a fit case which needs
to be adjudicated afresh by the High Court. We remit the matter to the High
Court for fresh adjudication in accordance with law taking into account the
evidence on record and applicable provisions of the governing statute.
Appeal is disposed of accordingly.