Raju Premji Vs.
Customs Ner Shillong Unit  INSC 971 (6 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1647 OF 2007 Raju
Premji .... Appellant Versus Customs NER Shillong Unit .... Respondent WITH CRIMINAL
APPEAL NO. 956 OF 2009 (Arising out of SLP (Crl.) No. 2047 of 2008) Arun
Kanungo .... Appellant Versus D. Pakyntein .... Respondent
S.B. SINHA, J.
two appeals involving common questions of law and fact are directed against a
judgment and order dated 6th September, 2007 passed by a Division Bench of the
Gauhati High Court in Criminal Appeal Nos. 3(SH) of 2006 and 4 )SH) of 2006
affirming a judgment of conviction and sentence dated 21st June, 2006 passed by
the learned Special Judge, NDPS, Shillong in Criminal (NDPS) Case No.26/2003
whereby both the appellants were convicted under Section 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act') and were
sentenced to undergo rigorous imprisonment for ten years each and to pay a fine
of Rs.1,00,000/- each; in default of payment of fine, to further undergo a
rigorous imprisonment for one year.
Raju Premji (A-4) was a resident of Shillong. He, however, had been carrying on
business in shoes in West Bengal. Appellant Arun Kanungo (A-3), however, is a
resident of Meghalaya. They along with two other accused, namely Yashihey Yobin
(A-1) and Lishihey Ngwazah Ngwazah (A-2) were prosecuted for commission of
offences under the NDPS Act.
placing on record the factual matrix of the matter, we may notice that whereas
accused Nos. 1 and 2 have been convicted for possession of 380 gms. of heroin,
appellants herein were convicted under Section 25 of the Act for abetment
thereof as they purported to have associated themselves with finding
prospective buyers in disposing of the contraband.
prosecution case in brief is that D. Pakyntein, PW-11, an Inspector in the
Office of the Commissioner of Customs, NER Shillong, received an information
from Special Operation Team of Meghalaya Police through N.K. Bhandari, PW-4, at
about 7.50 p.m. on 19th August, 2003 that one Yasihey Yobin of Dum Dum,
Nogthymmai, accused No.1, had kept some heroin at his residence and if a search
is conducted immediately, the contraband may be recovered. Thereafter Pakyntein
contacted R.M. Chyne, Superintendent (PW-7), B. Kar, Inspector (PW-2) and N.K.
All of them proceeded
towards the residence of accused No.1 to conduct the search. On reaching there,
they met the members of the Special Operation Team alongwith Yobin. After the
particulars of Yobin were ascertained, his house was searched in presence of
independent witnesses R.V. Dkha, PW-3 and D. Khyriem, PW-8, in course whereof
he took out one suitcase wherein he had allegedly kept the packet of heroin.
However, no heroin was found therein. On interrogation on the spot, Yobin
informed that his brother-in- law, Lisihey Ngwazah, accused No.2, must have
removed the same. He instructed his wife to contact him and ask him to come
back immediately with goods. Accused No.2 after sometimes turned up with a
black bag on his shoulder. On being asked, he opened the bag and took out the
contents thereof which included one suit case cover of camouflage denim made of
synthetic fabric and one green polythene bag, on opening whereof, one plastic
packet containing white powder wrapped with two pieces of English newspaper was
however, the information was received by M. Kharkrang, Additional
Superintendent of Police, PW-9, from his source who informed that he had been
offered to sell drugs by some people and they have to meet him at Keating Road,
whereupon plain clothes policemen were posted, who nabbed the appellants
therefrom. They were brought to the office of the Superintendent of Police.
Physical search was made of the appellants but nothing was found. They were
interrogated whereupon they allegedly disclosed that the drugs were in
possession of accused No.1.
At that point of
time, the Customs Officers were informed. Whereas the police officers reached the
village of accused No.1 first, the Customs Officers joined them later.
herein were in the custody of the police officers since evening of 19th August,
2003. Their custody was handed over to the customs officers.
4 It is now borne
out from the record that whereas all the accused made two statements each on
20th August, 2003 purported to be under Section 67 of the Act. So far as
accused No.4 is concerned the statements made by him were marked as Exts 17 and
18 whereas those of the accused No.3 are concerned, they were marked as Exts.
13 and 14. A formal first information report was lodged only in the afternoon
of 20th August, 2003. All the accused persons were formally arrested at 4.30
p.m. They were subjected to further interrogation and both the appellants made
a third statement on 21st August, 2003 which were marked as Exts. 19 and 15
respectively. They were produced before the Magistrate on the same day.
Whereas accused No.4
retracted from his confession on 4th November, 2003, other accused including
accused No.3 retracted therefrom while making their statements under Section
313 of the Code of Criminal Procedure.
charge sheet was filed against the appellants for commission of offences under
Section 21, 28 and 29 of the Act on 21st November, 2003.
They were convicted,
as stated aforesaid. Appeal preferred by them before the High Court have been
dismissed by the reason of the impugned judgment.
Accused Nos. 1 and 2
have not preferred any appeal before this Court against the judgment of the
U.U. Lalit, senior counsel and Mr. Vikas Mahajan, Advocate, in support of these
appeals would raise the following contentions :- a. The purported statements
having been made by the appellants before the authorized officers while in
custody, the same were hit under Section 26 of the Evidence Act, 1872.
b. Keeping in view
the fact that the accused were not summoned to make any statement and such
statements were made when they were in custody, the same were wholly
inadmissible in evidence.
c In any event, the
appellants having retracted from their earlier statements, no reliance could
have been placed thereupon in absence of any corroboration in material
d. Even if the
statements made by the accused are taken into consideration, they purported to
have offered sale of the contravention to one Bhiya Ji,, who had not been put
on trial, although summoned, the impugned judgments are liable to be set aside.
Shrabani Chakrabarty, learned counsel appearing on behalf of the respondent, on
the other hand, urged:- a. Appellants having made statements before the
officers of the customs authorities who were not police officers in terms of
Section 67 of the Act, bar in regard to inadmissibility of the statement as
contained in Section 26 of the Evidence Act, 1872 would not apply.
b Statements of the
appellants having been corroborated by the statements of other accused persons,
the impugned judgment is unassailable.
c. Accused Nos. 1 and
2 having been found to be in possession of the contraband and the appellants
having been found to have abetted them in commission of the crime, it was for
them to offer reasonable explanation in relation thereto.
III of the NDPS Act provides for prohibition, control and regulation. Chapter
IV provides for offences and penalties.
Section 8 of the Act
inter alia prohibits certain operations, except for the purposes mentioned
therein. Section 21 provides for punishment for contravention in relation to
manufactured drugs and preparations. Section 28 provides for punishment for
attempt to commit offences. Section 29 provides for punishment for abetment and
Act provides for stringent punishment. Where a statute confers drastic power
and provides for stringent penal provisions including the matter relating to
grant of bail, the conditions precedent therefor must be scrupulously complied
with. An information was received by the police authorities. The police
officers were empowered officers within the meaning of the provisions of the
NDPS Act. They were required to reduce the same into writing so as to apprise
the higher officers thereabout. No search warrant or authorisation was
obtained. Some plain clothes policemen were posted. In the own words of
prosecution witnesses and particularly those of PWs. 9 and 10, M. Kharkrang,
Additional Superintendent of Police, S.I. N. Thapa, respectively, the
appellants were nabbed. Raid was conducted inter alia by S.I. N. Thapa, PW-10.
They were taken in custody and brought to the office of PW-9.
Even then they were
not asked to make any statement. They were not even summoned. Their persons
were searched without complying with the provisions of Section 50 of the Act.
They were evidently interrogated.
Only on interrogation
they disclosed about the address of accused No.1. In the aforementioned
situation, it is difficult to comprehend as to why the customs officers had to
be informed. The police officers could themselves carry out the search and
seizure. They being empowered therefor should have exercised their own
jurisdiction. Customs Officers, we would assume, were invested with the powers
of an Officer Incharge of a Police Station in terms of a Notification issued
under Section 53 of the NDPS Act, but that does not mean, the police officers
were denuded of their jurisdiction thereunder.
the police authorities should have transferred the case to the customs
authorities defies any logic. It is admitted that appellants were taken to
Village Nonghymmai of which the accused No.1 was a resident by the police
officers including PWs. 9 and 10. Customs Officers joined them much later.
Search of the house of accused No.1 was not carried out by the customs officers
exclusively. All police officers present joined in the search. Evidently the
search was made after sunset. As information was received by PW-9 at about 6.30
pm; as is evident from the statement by him before the Court he left the house
of accused No.1 at about 10.00 p.m. while the customs officers had still been
carrying on some other formalities. All four accused were brought to the police
station for further interrogation and on the next date the customs officers
informed the police officers that both of them were required to be arrested. It
is at that time that their custody was handed over to the customs officers.
R.M. Chyne, indisputably was the officer before whom the purported statements
were made. There is nothing on record to show that any summons were served on
them. No such summon had been brought on record.
had been accepted that no deal was found to have taken place. The accused
persons and the informant were only talking amongst themselves.
He could not have even
heard their conversation. Admittedly the informant was one Bhaiya Ji. He had
not been examined for which no explanation has been offered.
three statements were taken from each of the accused.
The first one was a
narrative one. The second was in question and answer form. The third statement
was taken admittedly after the formal First Information Report was lodged.
stands admitted that the officer concerned, R.M. Chyne, PW-7, thought that the
accused could be examined times without number unless they make replies to
application of the provisions of Section 67 of the Act is required to be
considered in the aforementioned factual backdrop. It reads as under :-
"Section 67 - Power to call for information, etc.
Any officer referred
to in section 42 who is authorised in this behalf by the Central Government or
a State Government may, during the course of any enquiry in connection with the
contravention of any provisions of this Act,-- (a) call for information from
any person for the purpose of satisfying himself whether there has been any
contravention of the provisions of this Act or any rule or order made
(b) require any
person to produce or deliver any document or thing useful or relevant to the
(c) examine any
person acquainted with the facts and circumstances of the case."
empowered officer, therefore, is entitled to examine any person acquainted with
the facts and circumstances of the case, inter alia during the course of any
enquiry in connection with the contravention of any provision of the Act. As
the term `enquiry' is not defined under the NDPS Act, its meaning assigned in
Section 2(g) of the Code of Criminal Procedure as also in an etymological sense
and the manner may be held to be applicable.
the very beginning concededly the appellants were in the police custody. They
were put to interrogation by the police officers. They were not free persons.
They were under orders of restraint and thus would be in the custody of the
police officers. Any statement made by them while in custody of a police
officer would be inadmissible in evidence in terms of Section 26 of the Indian
Evidence Act, 1872, which reads as under :- "26. Confession by accused
while in custody of police not to be proved against him - No confession made by
any person whilst he is in the custody of a police-officer, unless it be made
in the immediate presence of a Magistrate, shall be proved as against such
Explanation - In this
section "Magistrate" does not include the head of a village
discharging magisterial functions in the Presidency of Fort St. George or
elsewhere, unless such headman is a Magistrate exercising the powers of a
Magistrate under the Code of Criminal Procedure,1898 (V of 1898)."
customs officer as per the Notification issued by the Central Government was an
officer incharge of the police station. All powers available to an officer
incharge of a police station, therefore, were available to him. One of the
attributes of the power of an officer incharge is a power to investigate into a
commission of cognizable offence. He can also file a charge sheet.
constitution Bench of this Court in State of Punjab v. Baldev Singh, [(1999) 6
SCC 172 ], held as under :- "28. This Court cannot overlook the context in
which the NDPS Act operates and particularly the factor of widespread
illiteracy among persons subject to investigation for drug offences. It must be
borne in mind that severer the punishment, greater has to be the care taken to
see that all the safeguards provided in a statute are scrupulously followed. We
are not able to find any reason as to why the empowered officer should shirk from
affording a real opportunity to the suspect, by intimating to him that he has a
right "that if he requires" to be searched in the presence of a
gazetted officer or a Magistrate, he shall be searched only in that manner. As
already observed the compliance with the procedural safeguards contained in
Section 50 are intended to serve a dual purpose -- to protect a person against
false accusation and frivolous charges as also to lend creditability to the
search and seizure conducted by the empowered officer. The argument that
keeping in view the growing drug menace, an insistence on compliance with all
the safeguards contained in Section 50 may result in more acquittals does not
appeal to us. If the empowered officer fails to comply with the requirements of
Section 50 and an order or acquittal is recorded on that ground, the
prosecution must thank itself for its lapses. Indeed in every case the end
result is important but the means to achieve it must remain above board. The
remedy cannot be worse than the disease itself.
The legitimacy of the
judicial process may come under a cloud if the court is seen to condone acts of
lawlessness conducted by the investigating agency during search operations and
may also undermine respect for the law and may have the effect of unconscionably
compromising the 13 administration of justice. That cannot be permitted."
would, for this purpose, assume that such confessions are not hit with Section
25 of the Evidence Act, 1872 but even then they must receive strict scrutiny.
This Court in
Kanhaiyalal v. Union of India, [(2008) 4 SCC 668], upon taking into
consideration number of decisions, held as under :- "43. The law involved
in deciding this appeal has been considered by this Court from as far back as
in 1963 in Pyare Lal Bhargava case. The consistent view which has been taken
with regard to confessions made under provisions of Section 67 of the NDPS Act
and other criminal enactments, such as the Customs Act, 1962, has been that
such statements may be treated as confessions for the purpose of Section 27 of
the Evidence Act, but with the caution that the court should satisfy itself
that such statements had been made voluntarily and at a time when the person
making such statement had not been made an accused in connection with the
a confessional statement is voluntary and free from any pressure must be judged
from the facts and circumstances of each case.
This Court in
Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate, [(2007) 8 SCC
254 ], has held as under :- 14 "20. We may, however, notice that recently
in Francis Stanly v. Intelligence Officer, Narcotic Control Bureau,
Thiruvananthapuram this Court has emphasised that confession only if found to
be voluntary and free from pressure, can be accepted.
purported to have been made before an authority would require a closer
scrutiny. It is furthermore now well settled that the court must seek
corroboration of the purported confession from independent sources."
In Noor Aga v. State
of Punjab and another, [2008 (9) SCALE 681], this Court held:- "102.
Section 25 of the Evidence Act was enacted in the words of Mehmood J. in Queen
Babulal [ ILR (1884)
6 All. 509 ] to put a stop the extortion of confession, by taking away from the
police officers as the advantage of providing such extorted confession during
the trial of accused persons. It was, therefore, enacted to subserve a high
any event if they were in custody of the police officers as also the customs
officers, although they were not accused in strict sense of the term, any
confession made by them would not be admissible in terms of Section 26 of the
Evidence Act, 1872.
counsel has relied upon a decision of the Kerala High Court in Kochan
Velayudhan v. State of Kerala, [AIR 1961 Kerala 8], wherein it was observed :-
"21. In Ramrao Ekoba v. The Crown, AIR 1951 Nag 237 Hemeon, J., held that:
failure to comply with the provisions regulating searches may cast doubts upon
the bona fide of the officers conducting the search, there is nothing in law
which makes the evidence relating to an irregular search inadmissible and a
conviction based on such evidence is not invalid on that ground alone".
confession was retracted by accused No.4 only after a few days.
The learned Special
Judge has taken into consideration the fact of such retraction. Taking into
consideration the facts and circumstances of the case, we are of the firm
opinion that confession cannot be said to have been made by the appellants
As the appellants
were not found to be in possession of the contraband, the burden of prove never
shifted on them.
the reasons abovementioned these appeals are allowed. The appellants are
directed to be released forthwith if not required in connection with any other
[ S.B. SINHA ]
[ R.M. LODHA ]