Ravindran @ John Vs. the Superintendent of Customs  Insc 563 (14 May 2007)
B.P. SINGH & TARUN CHATTERJEE
CRIMINAL APPEAL NO.1202 OF 2005 Peter John Appellant Versus The Superintendent
of Customs Respondent B.P. Singh, J.
The appellants herein with one other namely, Hiralal were tried by the
Special District and Sessions Judge, Madurai in Crime Case No.320 of 2001
charged of the offences under Section 8 (c) read with Sections 22 and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to
as the "Act"). Learned District & Sessions Judge by his judgment
and order dated November 20, 2002 found them guilty of the offences with which
they were charged and sentenced them to undergo rigorous imprisonment for 10
years and to pay a fine of Rs.1,00,000/- and in default to undergo further
rigorous imprisonment for 2-1/2 years.
Each one of the accused aggrieved by the judgment of the Trial Court
preferred an appeal before the High Court of Judicature at Madras.
The Criminal Appeal preferred by the appellant Ravindran @ John was
registered as Criminal Appeal No.1144 of 2003 while the appeal of Peter John
was numbered as Criminal Appeal 14 of 2003. The High Court by its impugned
common Judgment and Order dated April 2, 2004 upheld the conviction of the
appellants but acquitted Hiralal against whom it found no satisfactory evidence
to prove the charges.
The appellants have preferred the instant appeals by special leave.
CRIMINAL APPEAL NO.1201 OF 2005
1. The facts of the case are that PWs 1 and 2 who were officials of the
Customs Sea Base Party, Tiruchendur on receiving specific information rushed to
the Kayalpattinam Bus Stand at about 3.00 a.m. on December 21, 2000 since there was reliable information that one person carrying psychotropic substance was to
At the bus stand they found appellant Ravindran and on suspecting him to be
the person concerned they informed him that they are going to conduct personal
search and asked him whether he would like the search to be conducted before a
Judicial Magistrate or a Gazetted Officer. The appellant did not insist on his
search before a Magistrate or Gazetted Officer. He was searched by PWs 1 and 2
in the presence of two independent witnesses namely, Ravi and Chandrasekar. The
appellant was found to be carrying a white coloured polythene bag.
On searching the bag one polythene packet was found inside the bag which was
opened in the presence of the independent witnesses. It was found to contain
white colour powder. On being asked the appellant informed them that the
substance was Diazepam. The same was, therefore, seized under Mahazar, Ex. P-2.
The packet was sealed and brought to the Customs Office since there was no
facility to weigh the substance and to prepare samples at the bus stand. The
two independent witnesses also accompanied the appellant and PWs 1 and 2. On
weighing, the substance was found to weigh 1.528 Kilograms. Two representative
samples each weighing 5 grams were drawn and sealed in two separate covers which
were duly packed, labeled and sealed with the customs seal. According to the
prosecution the substance seized was worth about Rs.75,000/-.
2. The case of the prosecution is that on further questioning the appellant
confessed his guilt and his confessional statement Exb.
P-4 was recorded. From the confessional statement of the appellant, the
involvement of the other two accused was revealed. The appellant was arrested
on December 21, 2000 while the other two accused were arrested on December 23, 2000. Peter John (co-accused) admitted that the plastic bag containing white
colour powder had been given to him by his friend Hiralal (co-accused) and that
he had handed over the same to the appellant for sale.
3. The report of the Chemical Analyst established that the sample on being
tested showed the presence of Diazepam. One other accused namely, Bharat Lal
was found involved in the conspiracy. It appears that he absconded and
therefore his trial was separated.
4. It was argued before the Trial Court as well as the High Court that the
conviction of appellant Ravindran was not justified in view of non-compliance
with the mandatory provisions of Section 42(2) of the Act. It was also
contended that the independent witnesses were not examined at the trial and that
was fatal to the case of the prosecution. The trial was also vitiated for
non-compliance with the mandatory provisions of Sections 50 and 57 of the Act.
The report of the Chemical Analyst was challenged on the ground that he had not
tested the sample for its components. The percentage of purity of the sample
was therefore not proved. The Trial Court as well as the High Court
concurrently held that there was no substance in any of the grounds urged on
behalf of the aforesaid appellant. Some of those points have been urged before
us as well. We find no substance in any of the points urged before us.
5. The submission that Section 42 of the Act was not complied with has been
rejected by the High Court holding that Section 42 was not at all attracted to
the facts and circumstances of the case. It also recorded a finding that even
if attracted, it had been complied with.
6. We hold that the High Court was right in coming to the conclusion that
Section 42 of the Act was not attracted to the facts of this case. In the
instant case on information received by PW-2 who communicated the same to PW-1,
the witnesses went to the bus stand where the person carrying the drug was
expected to arrive. The appellant was arrested at the bus stand. The appellant
was, therefore, not searched and arrested in exercise of power of arrest,
search, and seizure under Section 42 of the Act. Section 42 applies to a case
where the officers concerned on information received, or having reason to
believe from personal knowledge that any offence has been committed in relation
to any drug or psychotropic substance etc. and which is kept or concealed in
any building, conveyance or enclosed place may, between sunrise and sunset,
enter into and search any building, conveyance or place. They are also vested
with the power of search and seizure and authorized to arrest the person whom
they have reason to believe to have committed any offence punishable under this
Act. The facts of this case disclose that the arrest and seizure took place at
the bus stand and not in any building, conveyance or enclosed place. The High
Court has rightly held that the case was covered by Section 43 of the Act which
does not require the information of any person to be taken down in writing.
Similarly, there is no requirement that the concerned officer must send a copy
thereof to his immediate official superior within 72 hours. We, therefore, hold
in agreement with the High Court that Section 42 of the Act was not attracted
to the facts of the case. It is, therefore, unnecessary to burden this judgment
with decisions cited at the Bar regarding the effect of non-compliance with
Section 42 of the Act.
7. It was then submitted on behalf of the appellant that the provisions of
Section 50 of the Act which are mandatory in nature were not also complied
with. Reliance was placed on decision of this Union of India and Anr. Learned
Additional Solicitor General appearing on behalf of the Union of India
submitted that the aforesaid judgment of this Court has been explained in a
subsequent judgment of this Court in (2005) 4 SCC 350 State of H.P. Versus
Pawan Kumar in which it has been held that the observations relied upon in
Namdi Francis Nwazor were obiter on this point. In the later judgment it has
been held as under:- "A bag, briefcase or any such article or container,
etc. can, under no circumstances, be treated as body of a human being. They are
given a separate name and are identifiable as such. They cannot even remotely
be treated to be part of the body of a human being.
Depending upon the physical capacity of a person, he may carry any number of
items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a
gathri, a holdall, a carton etc. of varying size, dimension or weight.
However, while carrying or moving along with them, some extra effort or
energy would be required. They would have to be carried either by the hand or
hung on the shoulder or back or placed on the head. In common parlance it would
be said that a person is carrying a particular article, specifying the manner
in which it was carried like hand, shoulder, back or head etc. Therefore, it is
not possible to include these articles within the ambit of the word
"person" occurring in Section 50 of the Act".
8. In the instant case, it is not in dispute that the appellant was carrying
a plastic bag in which the drug in question duly packed had been kept. Section
50 is, therefore, not attracted to the facts of this case.
9. It was, however, contended before us that PWs 1 and 2 had not informed
the appellant of his legal right to get his person searched in the presence of
a Gazetted Officer or a Magistrate.
Merely informing him that he has an option to have his personal search done
in the presence of a Gazetted Officer or a Magistrate was not sufficient and
that he should have been informed of his legal right to get his personal search
done in the presence of a Gazetted Officer or a Magistrate. In this connection,
reliance is placed on the decision of this Court in (1999) 6 SCC 1 Pon Adithan
Versus Deputy Director, Narcotics Control Bureau, Madras. It was, however,
brought to our notice that the question as to whether the accused appellant is
not entitled to be informed of his right to be searched in the presence of a
Gazetted Officer or a Magistrate and that merely being asked as to whether the
accused-appellant would like to be searched in the presence of a Gazetted
Officer or a Magistrate would be sufficient compliance with the provisions of
Section 50 of the Act, has been referred to a larger Bench of this Court to
resolve the conflict of opinion on the interpretation of Section 50 of the Act.
(See (2005) 12 SCC 574).
10. In our view this question does not survive for our consideration because
we have earlier held that Section 50 was not attracted to the facts of this
case. If any drug was recovered from the personal search of the appellant as
explained in Pawan Kumar's case, the appellant could advance this argument to
challenge his personal search. That not being the case, the submission must be
rejected. An argument was advanced before us that if the search is found to be
illegal that is fatal to the case of the prosecution. Apart from the fact that
this question does not arise in the instant case, it cannot be said as a
general principle of law that the illegality of the seizure would in all cases
prove fatal to the case of the prosecution. As held by this Court in 2006 (9)
SCALE 644 Ritesh Chakarvarti Versus State of Madhya Pradesh although the effect
of the illegal search may not have any direct effect on the prosecution case,
it would all the same have a bearing on the appreciation of evidence of the
official witnesses and other materials depending on the facts of each case.
11. Learned counsel for the appellant argued that the two independent
witnesses in whose presence he had been searched were not examined at the
trial. Reliance was placed on an observation contained in paragraph 28 of the
report in (2004) 12 SCC 201 State of West Bengal and Others Versus Babu
Chakraborthy. In the instant case it is not disputed that two independent
witnesses were associated when the search was conducted. The search was,
therefore, conducted in accordance with law. But it is argued that failure to
examine the two witnesses is fatal to the case of the prosecution. In our view,
this is not the correct legal position. Even where independent evidence is not
examined in the course of the trial the effect is that the evidence of the
official witnesses may be approached with suspicion and the Court may insist on
corroboration of their evidence. In (2000) 4 SCC 465 Koluttumottil Razak Versus
State of Kerala this Court observed:- "In the present case, unfortunately,
apart from the evidence of the police officers there is absolutely no
independent evidence to ensure confidence in our mind that the search was in
fact conducted by PW 1 as he has claimed. As his evidence is required to be
approached with suspicion due to violation of Section 42 of the Act we may
require corroboration from independent sources that is lacking in this
In (2003) 8 SCC 449 M. Prabhulal Versus Assistant Directorate of Revenue
Intelligence, a similar question was raised in the context of the provisions of
the NDPS Act. This Court held:
"Next, the learned counsel contends that the independent witnesses of
the recovery of the contraband having not been examined and only police
witnesses having been examined, the recovery becomes doubtful. Reliance is
placed upon the decision in Pradeep Narayan Madgaonkar V. State of Maharashtra.
In the decision relied upon while observing that prudence dictates that
evidence of police witnesses needs to be subjected to strict scrutiny, it was
also observed that their evidence cannot be discarded merely on the ground that
they belong to the police force and are either interested in the investigating
or prosecuting agency, but as far as possible, corroboration of their evidence
in material particulars should be sought".
12. In the instant case we find that the courts below have critically
scrutinized the evidence of the prosecution witnesses applying the rule of
caution and we find no reason to disagree with their findings.
13. It was sought to be urged before us that evidence discloses that the
confessions were not made voluntarily. We permitted the learned counsel to
refer to the material on record and the concurrent findings recorded by the
Trial Court and the High Court.
We have noticed the fact that the confession was subsequently retracted. The
courts have in our view correctly appreciated the material on record and have
rightly come to the conclusion that apart from the confession of the appellant
Ravindran there was also other reliable evidence on record to prove his
complicity. We, therefore, find no merit in this submission.
14. It was lastly urged that though the Chemical Analyst had reported the
presence of Diazepam, he had not given particulars as to the proportion in
which its components were found. Counsel for the appellant placing reliance on
the judgment of this Court reported in (2005) 7 SCC 550 Amarsingh Ramjibhai
Barot Versus State of Gujarat submitted that this may have a bearing on the
question of sentence. In the instant case, we are concerned with Diazepam.
According to the Notification 20 grams of Diazepam is considered to be small
quantity. Any quantity in excess of 500 grams is commercial quantity. In the
instant case 1.528 Kilograms of Diazepam was found. In these facts the case is
clearly covered by Section 22 (c) of the Act. We, therefore, find no merit in
any of the submissions urged on behalf of the appellant Ravindran. His appeal
fails and is, therefore, dismissed.
CRIMINAL APPEAL NO.1202 OF 2005
1. The appellant in this appeal is Peter John whose complicity was disclosed
in the confessional statement of Ravindran.
The appellant Peter John and Hiralal were arrested at Salem on December 23,
2000. They were brought to Madurai where their confessions were recorded which
are Exbs. P-10 and P-11.
2. In his confessional statement appellant Peter John stated that the packet
in question was given to him by Hiralal (since acquitted). Hiralal had told him
that he had found the packet abandoned in the lavatory of a train and that it
was a Narcotic drug and could be sold for profit. He, further, confessed that
he had handed over the packet to appellant Ravindran for sale.
3. According to the confession of Hiralal Exb.P-11 he had got the packet
from his friend Bharatlal (absconding accused No.4).
He did not know the address of Bharatlal whom he had known for about a year
and a half. He further admitted that he had handed over the contraband to Peter
John for sale.
4. The prosecution relied upon the confessional statements to implicate the
appellant as well as Hiralal. The defence on the other hand contended that Exb.
P-10 and P-11 were obtained after prolonged custody since Custom Officials
arrested them in Salem and later brought them to Madurai. It was also submitted
that the confessional statements were subsequently retracted and, therefore, no
reliance could be placed on them. The confessional statement of a co- accused
could not be used as substantive evidence against the co- accused.
5. The High Court in its impugned judgment and order has found that the only
piece of evidence against Hiralal, A-3 was the confessional statement of the
co-accused which could not be used against him and which was not sufficient to
sustain the charge of conspiracy. It further noticed that according to Hiralal
the contraband had been given to him by Bharatlal and in turn he handed over
the same to appellant Peter John. The High Court observed that if he had really
handed over the contraband to Peter John he would have certainly made enquiries
about the sale of the contraband. Moreover, there is no mention about appellant
Ravindran in his confessional statement. No doubt he admitted that he used to
enquire from time to time as to whether the article had been sold, but the High
Court concluded that that was not sufficient to establish the link between A- 3
and A-2, much less the conspiracy between A-1, A-2 and A-3 namely, Ravindran,
Peter John and Hiralal. The High Court also observed that the Court would not
ordinarily act upon a retracted confession to convict the co-accused without
corroboration in material particulars.
6. The High Court, however, distinguished the case of appellant Peter John
holding that it was he who instructed Ravindran to go to the bus stand at
Kayalpattinam on December 21, 2000 with the contraband. Moreover, appellant
Ravindran and Peter John belonged to the same village. Appellant Peter John had
brought the contraband from Salem to be handed over to Ravindran. Lastly, Peter
John was frequently contacting Ravindran to know about the sale of the
7. It is not in dispute that the facts which have been relied upon by the
High Court are culled out from the confession of Peter John. The question is
whether the confessional statement of appellant Peter John is sufficient to
uphold his conviction particularly when the same has been retracted and there
is no other reliable evidence to convict him. In our view the benefit extended
to Hiralal ought to be extended to appellant Peter John as well. The High Court
did not find the confession of the co-accused reliable enough to be used either
against him, or his co-accused. Appellant Peter John and Hiralal were arrested
and brought to Madurai together and their confessions were recorded. The High
Court has not considered it safe to act on the confession of Hiralal and
acquitted him of the charge leveled against him. If the confession of Hiralal
could not be used against him, certainly it could not be used against appellant
Peter John a co- accused. Both the confessions were recorded one after the
While in the confession of appellant Peter John it was stated that Hiralal
had told him that he had found the packet abandoned in a running train, Hiralal
in his confessional statement stated that he had received the packet from his
friend Bharatlal and he had handed over the same to appellant Peter John. The
High Court has not accepted this part of the prosecution story because in that
event Hiralal would have been found guilty of having conspired to commit the
offence or at least could have been found guilty of abetment since he had
admitted that he had received the packet from Hiralal and handed over the same
to appellant Peter John for sale. In these circumstances, the evidence that
remains against the appellant Peter John is rather slender and it is not safe
to uphold his conviction on such evidence, particularly when the person who is
supposed to have given him the contraband has been given the benefit of doubt
by the High Court.
The charge against appellant Peter John is one of conspiracy to commit
offences under the Act. The High Court has not accepted the involvement in the
conspiracy of Hiralal who in his confessional statement claimed to have handed
over the contraband to appellant Peter John. If the confessional statement of
Hiralal is discarded, there remains no evidence except his own confession to
implicate the appellant Peter John. The High Court did not find it safe to act
on the retracted confession of Hiralal. The confession of the appellant was
also recorded by the same team of officers at about the same time.
The appellant also retracted his confession.
8. In these circumstances we are of the view that appellant Peter John is
also entitled to the benefit of doubt. We, accordingly, allow his appeal and
set aside his conviction and sentence. He shall be released forthwith unless
required in connection with any other case.