Noor Aga Vs. State of
Punjab & ANR. [2008] INSC 1067 (9 July 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. 1034 OF 2008 [Arising out of SLP (Crl.) No.
5597 of 2006] Noor Aga ...Appellant Versus State of Punjab & Anr.
...Respondents
S.B. SINHA, J :
Leave granted.
INTRODUCTION Several
questions of grave importance including the constitutional validity of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the
Act"), the standard and extent of burden of proof on the prosecution
vis-`-vis accused are in question in this appeal which arises out of a judgment
and order dated 9.06.2006 passed by the High Court of Punjab and Haryana in
Criminal Appeal No. 810-SB of 2000 whereby and whereunder an appeal filed by
the applicant against the judgment of 2 conviction and sentence dated 7.6.2000
under Section 22 and 23 of the Act has been dismissed.
PROSECUTION CASE
Appellant is an Afghan national.
He was arrested and
later on prosecuted under Sections 22 and 23 of the Act allegedly for carrying
1 kg 400 grams of heroin as a member of crew of Ariana Afghan Airlines.
Appellant arrived at
Raja Sansi Airport at about 6 p.m. on 1.08.1997.
He presented himself
before the authorities under the Customs Act, 1962 (for short "the Customs
Act") for customs clearance. He was carrying a carton with him said to be
containing grapes. The cardboard walls of the said carton were said to have two
layers. As some concealment in between the layers was suspected by one Kulwant
Singh, an Inspector of the Customs Department, the appellant was asked as to
whether he had been carrying any contraband or any other suspicious item. Reply
thereto having been rendered in the negative, a search was purported to have
been conducted.
3 Kulwant Singh, who
examined himself as PW-1 before the trial court, allegedly asked the appellant
as to whether he intended to be searched by a Magistrate or a Gazetted officer
of the Customs Department; in response whereto, he exercised his option for the
latter, whereupon one Shri K.K.
Gupta, Superintendent
of the Customs Department and two independent witnesses, Mohinder Singh and
Yusaf were sent for. K.K. Gupta disclosed his identity to the appellant as a
Gazetted officer working in the Customs Department.
The layers of the walls
of the carton were thereafter separated, wherefrom 22 packets of polythene
containing brown powder were allegedly recovered. The same was weighed; the
gross weight whereof was found to be 1 kg. 400 grams. Representative
homogeneous samples from each packet in small quantities were taken weighing 5
gms. each. They were purported to have been sealed with a seal bearing No. 122
of the Customs Department. The cardboard carton was also sealed with the same
seal. The recovered item being of brown colour was taken in possession vide
recovery memo (Ex. PB), Panchanama (Ex. PC) prepared by Shri Kulwant Singh. The
entire bulk was put into cotton bags and sealed.
ARREST AND PURPORTED
CONFESSION 4 Although the appellant had all along been in the custody of the Customs
Department, he was formally arrested at about 3 p.m. on 2.08.1997, i.e., 15
hours after the recovery having been effected. Grounds of arrests allegedly
were supplied to him. His body was also searched wherefor his jamatalashi was
prepared which was marked as Ex. PE.
Appellant purported
to have confessed his guilt on 2.08.1997 as also on 4.08.1997.
INVESTIGATION Samples
were sent to the Central Forensic Laboratory on 5.08.1997.
The weight of the
said samples was found to be 8.7 gms. The document is said to have been
tinkered with, as the words "net weight" were crossed and converted
into `gross weight'.
The alleged
contraband was found to be of white colour containing Diacetyl Morphine. The
report was submitted on 2.09.1997; on the basis whereof a complaint Ex. PL was
filed in the Court and in a consequence thereof, appellant was to put on trial
having been charged under Sections 22 and 23 of the Act.
5 The contraband
articles were produced before the Magistrate on 30.01.1999. The purpose for
production is mired in controversy. Whereas the appellant contends that the
same was done for the purpose of authentication, according to the respondent,
it was produced for the purpose of obtaining a judicial order for destruction
thereof. No order, however, was passed by the learned Magistrate for
destruction of the contraband. No application for destruction was also filed.
PROCEEDINGS At the
trial, the following witnesses were examined on behalf of the State:
PW-1 Kulwant
Singh-lnspector Customs (Complainant and investigating officer) PW-2 KK Gupta-
Superintendent-Customs (A Gazzeted Officer) PW-3 Ashok Kumar- Inspector,
Customs Department (Deposited sample) PW-4 Rajesh Sodhi-Deputy Commissioner
Custodian of case property from 1-8-97 to 4-897 PW-5 KK Sharma-lnspector
Incharge- Malkhana Appellant, in his examination under section 313 of the Code
of 6 Criminal Procedure in categorical terms denied that the carton belonged
to him. He also retracted from his alleged confession.
The learned
Additional Sessions Judge by his order and judgment dated 7.06.2000 convicted
the appellant under Sections 22 and 23 of the Act and sentenced him to undergo
rigorous imprisonment for 10 years and also imposed a fine of Rs. 1 lakh on
him.
Aggrieved by and
dissatisfied with the said judgment and order of the learned Additional
Sessions Judge, the appellant filed an appeal before the High Court of Punjab
and Haryana. The High Court dismissed the said appeal by a judgment and order
dated 9.06.2006. Appellant is, thus, before us.
CONTENTIONS Ms. Tanu
Bedi, learned counsel appearing on behalf of the appellant, in support of this
appeal, submits:
(i) The provisions of
Sections 35 and 54 of the Act being draconian in nature imposing reverse burden
on an accused and, thus, being contrary to Article 14 (2) of the International
Covenant on Civil and Political Rights providing for `an accused to be innocent
until proved guilty' must be held to be ultra vires Articles 14 and 21 of the
Constitution of India.
(ii) Burden of proof
under the Act being on the accused, a heightened standard of proof in any event
is required to be discharged by the prosecution to establish the foundational
facts and the same having not been done in the instant case, the impugned
judgment is liable to be set aside.
(iii) The prosecution
having not produced the physical evidence before the court particularly the
sample of the purported contraband materials, no conviction could have been
based thereupon.
(iv) Independent
witnesses having not been examined, the prosecution must held to have failed to
establish actual recovery of the contraband from the appellant.
(v) There being huge
discrepancies in the statements of official witnesses in regard to search and
seizure, the High Court judgment is fit to be set aside.
(vi) The purported
confessions of the appellant before the customs authorities are wholly
inadmissible in evidence being hit by Section 25 of the Indian Evidence Act, as
Section 108 of the Customs Act should be read in terms thereof coupled with
Sections 53 and 53A of the Act.
Mr. Kuldip Singh,
learned counsel appearing on behalf of the State, 8 on the other hand, would
contend:
i.
The
learned Trial Judge as also the High Court upon having examined the materials
brought on records by the prosecution to hold that the guilt of the accused
sufficiently has been established in the case, this Court should not interfere
with the impugned judgment.
ii.
Appellant
having exercised his option of being searched by a Gazetted Officer; and the
legal requirements of Sections 42 and 50 of the Act must be held to have been
fully complied with. In any event, search and seizure of the carton did not
attract the provisions of Section 50 of the Act.
iii.
Despite
some discrepancies in the statements of the witnesses as regards recovery, the
same cannot be said to be a vital flaw in the case of the prosecution so as to
make the impugned judgment unsustainable. The learned Trial Judge as also the
High Court had considered the practices prevailing in the Customs Department
for the purpose of appreciating the evidence brought on record, and having
recorded their satisfaction with regard thereto, the impugned judgments do not
warrant any interference.
iv.
Any
confession made before the customs authorities in terms of 9 Section 108 of
the Customs Act is not hit by Section 25 of the Indian Evidence Act and the
same, thus, being admissible in evidence could have been relied upon for the
purpose of recording a judgment of conviction.
AN OVERVIEW OF THE
STATUTORY PROVISIONS Before embarking upon the rival contentions of the
parties, as noticed hereinbefore, it is appropriate to notice the relevant
provisions of the Act as also the Customs Act, 1962.
The purported
recovery was made by the Customs Department. In terms of the provisions of the
Act they were entitled to make investigations as also file the chargesheet.
The Act was enacted
to consolidate and amend the law relating to narcotic drugs to make stringent
provisions for the control and regulation of operations relating to narcotic
drugs and psychotropic substances. It was enacted to implement the provisions
of the International Conventions on Narcotic Drugs and Psychotropic Substances
and the matters connected therewith.
10 Section 2(xiv) of
the Act defines "narcotic drug" to mean coca leaf, cannabis (hemp),
opium poppy straw and includes all manufactured drugs.
"Illicit
traffic", in relation to narcotic drugs and psychotropic substances, has
been defined in Section 2(viiia) of the Act, inter alia, to mean:
"(iv) dealing in
any activities in narcotic drugs or psychotropic substances other than those
referred to in sub-clauses (i) to (iii); or (v) handling or letting out any
premises for the carrying on of any of the activities referred to in
sub-clauses (i) to (iv);"
"Commercial
quantity" has been defined in Section 2(viia) to mean any quantity greater
than the quantity specified by the Central Government by notification in the
official gazette.
Indisputably, the
commercial quantity prescribed for heroin is only 250 gms.
"International
Conventions" have been specified in Section 2(ix) of the Act.
Chapter II of the Act
enables the Central Government to take measures as may be necessary or
expedient inter alia for the purpose of 11 preventing and combating abuse of
and illicit traffic therein including constitution of an authority or hierarchy
of authorities by such name or names as may be specified in the order for the
purpose of exercising such of the powers and functions of the Central
Government under the Act and for taking measures with respect to such of the
matters referred to in sub- section (2) as being specified therein, subject, of
course, to the supervision and control of the Central Government.
Chapter III provides
for prohibition, control and regulation. Section 8 inter alia bars possession,
sale, purchase, transport of any narcotic drugs except for medical or
scientific purposes and in the manner and the extent provided by the provisions
of the Act or the Rules or orders framed thereunder. Section 9 of the Act
empowers the Central Government to make rules inter alia permitting and
regulating possession of narcotic substance, subject, however, to the
provisions contained in Section 8 thereof.
Chapter IV provides
for offences and penalties. Section 22 provides for punishment for
contravention in relation to psychotropic substances.
Section 23 provides
for punishment for illegal import into India, export from India or
transshipment of narcotic drugs and psychotropic substances.
12 The punishment
under both the provisions in case of commercial quantity provides for rigorous
imprisonment for a term which shall not be less than ten years but which may
extend to twenty years and shall also be liable to fine which shall not be less
than one lakh rupees but which may be extended to two lakh rupees. The proviso
appended thereto, however, empowers the court, for reasons to be recorded in
the judgment, to impose a fine exceeding two lakh rupees.
Section 35 of the Act
provides for presumption of culpable mental state. It also provides that an
accused may prove that he had no such mental state with respect to the act
charged as an offence under the prosecution.
Section 54 of the Act
places the burden of proof on the accused as regards possession of the
contraband to account for the same satisfactorily.
Section 37 of the Act
makes offences cognizable and non-bailable. It contains a non-obstante clause
in terms whereof restrictions have been imposed upon the power of the court to
release an accused on bail unless the following conditions are satisfied:
"(i) the Public
Prosecutor has been given an opportunity to oppose the application for such
release, and (ii) where the Public Prosecutor opposes the application, the
court is satisfied that there are reasonable grounds for believing that he is
not 13 guilty of such offence and that he is not likely to commit any offence
while on bail."
The said limitations
on the power of the court to grant bails as provided for in clause (b) of
Section (1) of Section 37 of the Act are in addition to the limitations
provided for under the Code of Criminal Procedure, 1973 or any other law for
the time being in force.
Section 39 provides
for the power of the court to release certain offenders on probation.
We may notice that
the restrictions on the power of the court to suspend the sentence as envisaged
in Section 39 of the Act has been held to be unconstitutional in Dadu @
Tulsidas v. State of Maharashtra [(2000) 8 SCC 437], subject, of course, to the
restrictions for grant of bail as contained in Section 37 of the Act.
Section 42 provides
for power of entry, search, seizure and arrest without any warrant or
authorization by an officer who is otherwise empowered by the Central
Government by general or special order.
If the authorities or
officers specified therein have any reason to believe from personal knowledge
or information given by any person and taken down in writing that any narcotic
drug or psychotropic substances in respect of which an offence punishable under
the Act has been committed, 14 they may enter into and search such building,
conveyance or enclosed place at any time between sunrise and sunset and detain,
search and arrest any person whom he has reason to believe to have committed an
offence punishable under the Act.
Section 43, however,
empowers an officer of any department mentioned in Section 42 to detain and
search any person who he has reason to believe has committed an offence
punishable under the Act in a public place. Section 50 provides for the
conditions under which search of persons are to be conducted. Section 51
provides for application of the Code of Criminal Procedure, 1973 insofar as
they are not inconsistent with the provisions of the Act. Section 52 provides
for disposal of persons arrested and articles seized. Section 52-A provides for
disposal of seized narcotic drugs and psychotropic substances; sub-section (2)
whereof reads as under:
"(2) Where any
narcotic drugs or psychotropic substances has been seized and forwarded to the
officer in charge of the nearest police station or to the officer empowered
under Section 53, the officer referred to in sub-section (1) shall prepare an
inventory of such narcotic drugs or, psychotropic substances containing such
details relating to their description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars of the narcotic drugs or
psychotropic substances or the packing in which they are packed, country of
origin and other particulars as the officer referred to in sub-section (1) may
consider relevant to the identity of the 15 narcotic drugs or psychotropic
substances in any proceedings under this Act and make an application, to any
purpose of,- (a) Certifying correctness of the inventory so prepared; or (b)
Taking, in the presence of such Magistrate, photographs substances and
certifying such photographs as true; or (c) Allowing to draw representative
samples of such drugs or substances, in the presence of such Magistrate and
certifying the correctness of any list of samples so drawn."
Indisputably, the
proper officers of the 1962 Act are authorized to take action under the Act as
regards seizure of goods, documents and things.
We may notice Section
110 of the 1962, sub-section (1) whereof reads as under:
"110. Seizure of
goods, documents and things. - (1) If the proper officer has reason to believe
that any goods are liable to confiscation under this Act, he may seize such
goods:
Provided that where
it is not practicable to seize any such goods, the proper officer may serve on
the owner of the goods an order that he shall not remove, part with, or
otherwise deal with the goods except with the previous permission of such
officer.
(1A) The Central
Government may, having regard to the perishable or hazardous nature of any
goods, depreciation in the value of the goods with the passage of time,
constraints of storage space for the goods or any other relevant
considerations, by notification in the Official Gazette, specify the goods or
class of goods which shall, as soon as may be after its seizure under subsection
(1), be 16 disposed of by the proper officer in such manner as the Central
Government may, from time to time, determine after following the procedure
hereinafter specified.
(1B) Where any goods,
being goods specified under sub-section (1A), have been seized by a proper
officer under sub-section (1), he shall prepare an inventory of such goods
containing such details relating to their description, quality, quantity, mark,
numbers, country of origin and other particulars as the proper officer may
consider relevant to the identity of the goods in any proceedings under this
Act and shall make an application to a Magistrate for the purpose of - (a)
certifying the correctness of the inventory so prepared; or (b) taking, in the
presence of the Magistrate, photographs of such goods, and certifying such
photographs as true; or (c) allowing to draw representative samples of such
goods, in the presence of the Magistrate, and certifying the correctness of any
list of samples so drawn.
(1C) Where an
application is made under sub- section (1B), the Magistrate shall, as soon as
may be, allow the application."
Indisputably, the
Central Government has issued guidelines in this behalf being Standing Order
No. 1 of 1989 dated 13.06.1989 which is in the following terms:
"WHEREAS the
Central Government considers it necessary and expedient to determine the manner
in which the narcotic drugs and psychotropic substances, as specified in
Notification No. 4/89 dated the 29th May, 1989 (F. No. 664/23/89- 17 Opium,
published as S.O. 381(E) ), which shall, as soon as may be, after their
seizure, be disposed of, having regard to their hazardous nature, vulnerability
to theft, substitution and constraints of proper storage space;
Now, therefore, in
exercise of the powers conferred by sub-section (1) of Section 52A of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), (hereinafter
referred to as `the Act'), the Central Government hereby determines that the
drugs specified in the aforesaid Notification shall be disposed off in the
following manner..."
These guidelines
under the Standing order have been made under Statute, and Heroin is one of the
items as substances listed for disposal under Section I of the Standing Order.
Paragraphs 3.1 and
6.1 of the Standing Order read as under:
"Preparation of
inventory
3.1 After sampling,
detailed inventory of such packages/containers shall be prepared for being
enclosed to the panchnama. Original wrappers shall also be preserved for
evidentiary purposes.
Certificate of
destruction
6.1 A certificate of
destruction (in triplicate (Annexure III) containing all the relevant data like
godown entry, no., file No., gross and net weight of the drugs seized etc.
shall be prepared and duly endorsed by the signature of the Chairman as well as
Members of the Committee. This could also serve the purpose of panchanama. The
original 18 copy shall be posted in the godown register after making necessary
entries to this effect, the duplicate to be retained in the seizure case file and
the triplicate copy will be kept by the Disposal Committee. "
CONSTITUTIONALITY
Presumption of innocence is a human right as envisaged under Article 14(2) of
the International Covenant on Civil and Political Rights. It, however, cannot
per se be equated with the fundamental right and liberty adumbrated in Article
21 of the Constitution of India. It having regard to the extent thereof would
not militate against other statutory provisions (which, of course, must be read
in the light of the constitutional guarantees as adumbrated in Articles 20 and
21 of the Constitution of India).
The Act contains
draconian provisions. It must, however, be borne in mind that the Act was
enacted having regard to the mandate contained in International Conventions on
Narcotic Drugs and Psychotropic Substances.
Only because the
burden of proof under certain circumstances is placed on the accused, the same,
by itself, in our opinion, would not render the impugned provisions
unconstitutional.
A right to be
presumed innocent, subject to the establishment of certain foundational facts
and burden of proof, to a certain extent, can be 19 placed on an accused. It
must be construed having regard to the other international conventions and
having regard to the fact that it has been held to be constitutional. Thus, a
statute may be constitutional but a prosecution there under may not be held to
be one. Indisputably, civil liberties and rights of citizens must be upheld.
A Fundamental Right
is not absolute in terms.
It is the consistent
view of this Court that `reason to believe', as provided in several provisions
of the Act and as defined in Section 26 of the Indian Penal Code, on the part
of the officer concerned is essentially a question of fact.
The procedures laid
down under the Act being stringent in nature, however, must be strictly
complied with.
In Directorate of
Revenue and Another v. Mohammed Nisar Holia [(2008) 2 SCC 370], this Court
held:
"11. Power to
make search and seizure as also to arrest an accused is founded upon and
subject to satisfaction of the officer as the term "reason to
believe" has been used. Such belief may be founded upon secret information
that may be orally conveyed by the informant. Draconian 20 provision which may
lead to a harsh sentence having regard to the doctrine of "due
process" as adumbrated under Article 21 of the Constitution of India
require striking of balance between the need of law and enforcement thereof, on
the one hand, and protection of citizen from oppression and injustice on the
other."
Application of
international law in a case involving war crime was considered by the
Constitutional Court of South Africa in State v. Basson [2004 (6) BCLR 620
(CC)] opining:
"The rules of
humanitarian law constitute an important ingredient of customary international
law. As the International Court of Justice [("the ICJ)] has stated, they
are fundamental to the respect of the human person and "elementary
considerations of humanity. The rules of humanitarian law in armed conflicts
are to be observed by all States whether or not they have ratified the
Conventions that contain them because they constitute intransgressible
principles of international customary law. The ICJ has also stressed that the
obligation on all governments to respect the Geneva Conventions in all
circumstances does not derive from the Conventions themselves, but from the
general principles of humanitarian law to which the Conventions merely give
specific expression."
It was furthermore
observed: "When allegations of such serious nature are at issue, and where
the exemplary value of constitutionalism as against lawlessness is the very 21
issue at stake, it is particularly important that the judicial and
prosecutorial functions be undertaken with rigorous and principled respect for basic
constitutional rights. The effective prosecution of war crimes and the rights
of the accused to a fair trial are not antagonistic concepts. On the contrary,
both stem from the same constitutional and humanitarian foundation, namely the
need to uphold the rule of law and the basic principles of human dignity,
equality and freedom."
[See also `War,
Violence, Human Rights, and the overlap between national and international law:
Four cases before the South African Constitutional Court' by Albie Sachs, 28 Fordham
International Law Journal 432] The provision for reverse burden is not only
provided for under the special acts like the present one but also under the
general statutes like the Indian Penal Code. The Indian Evidence Act provides
for such a burden on an accused in certain matters, as, for example, under
Section 113A and 113B thereof. Even otherwise, this Court, having regard to the
factual scenario involved in cases, e.g., where husband is said to have killed
his wife when both were in the same room, burden is shifted to the accused.
22 Enforcement of
law, on the one hand and protection of citizen from operation of injustice in
the hands of the law enforcement machinery, on the other, is, thus, required to
be balanced.
The constitutionality
of a penal provision placing burden of proof on an accused, thus, must be
tested on the anvil of the State's responsibility to protect innocent citizens.
The court must assess
the importance of the right being limited to our society and this must be
weighed against the purpose of the limitation. The purpose of the limitation is
the reason for the law or conduct which limits the right. {See S v. Dlamini; S
v. Dladla and others 1999(7) BCLR 771 (CC)} While, however, saying so, we are
not unmindful of serious criticism made by the academies in this behalf.
In Glanville
Williams, Textbook of Criminal Law (2nd Edn.) page 56, it is stated:
"Harking back to
Woolmington, it will be remembered that Viscount Sankey said that "it is
the duty of the prosecution to prove the prisoner's guilt, subject to the
defence of insanity and subject also to any statutory exception". ... Many
statutes shift the persuasive burden. It has become a matter of routine for
Parliament, in respect of the most 23 trivial offences as well as some serious
ones, to enact that the onus of proving a particular fact shall rest on the
defendant, so that he can be convicted "unless he proves" it."
But then the
decisions rendered in different jurisdictions are replete with cases where
validity of the provisions raising a presumption against an accused, has been
upheld.
The presumption
raised in a case of this nature is one for shifting the burden subject to
fulfillment of the conditions precedent therefor.
The issue of reverse
burden vis-`-vis the human rights regime must also be noticed. The approach of
the Common Law is that it is the duty of the prosecution to prove a person
guilty. Indisputably this common law principle was subject to parliamentary
legislation to the contrary. The concern now shown worldwide is that the
Parliaments had frequently been making inroads on the basic presumption of
innocence. Unfortunately unlike other countries no systematic study has been
made in India as to how many offences are triable in the Court, where the legal
burden is on the accused. In the United Kingdom it is stated that about 40% of
the offences triable in the Crown Court appear to violate the presumption. (See
- The Presumption of Innocence in English Criminal Law, 1996 Crim.L.R. 306, at
309).
24 In Article 11(1)
of the Universal Declaration of Human Rights (1948) it is stated :-
"Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law...."
Similar provisions
have been made in Article 6.2 of the European Convention for the protection of
Human Rights and Fundamental Freedoms (195) and Article 14.2 of the
International Covenant on Civil and Political Rights (1966).
The legal position
has, however, undergone a drastic change in the United Kingdom after coming
into force of the Human Rights Act, 1998.
The question as to
whether on the face of Article 6.2 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950), the doctrine of
reverse burden passes the test of constitutionality came up for consideration
before the House of Lords in Regina v. Lambert : ( [2001] UKHL 37 : [2001] 3
All ER 577) wherein the following two questions came up for consideration:-
"The first is whether a defendant is entitled to rely on convention rights
when the court is hearing an appeal from a decision which was taken before the
Human 25 Rights Act, 1998 came into effect. The second is whether a reverse
burden provision in section 28(2) and (3) of the Misuse of Drugs Act, 1971 is a
compatible with the presumption of innocence contained in article
6.2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms."
Sub-section (2) of Section 28 of the Misuse of Drugs Act, 1971, with which the
House was concerned, reads as under:- "(2) Subject to sub-section (3)
below, in any proceedings for an offence to which this section applies it shall
be a defence for the accused to prove that he neither knew of nor suspected nor
had reason to suspect the existence of some fact alleged by the prosecution
which it is necessary for the prosecution to prove if he is to be convicted of
the offence charged."
Lord Steyn stated the
law thus :- "Taking into account that section 28 deals directly with the
situation where the accused is denying moral blameworthiness and the fact that
the maximum prescribed penalty is life imprisonment, I conclude that the
appellant's interpretation is to be preferred. It follows that section 28
derogates from the presumption of innocence. I would, however, also reach this
conclusion on broader grounds. The distinction between constituent elements of
the crime and defensive issues will sometimes be unprincipled and arbitrary.
After all, it is sometimes simply a matter of which drafting technique is
adopted: a true constituent element can be removed from the definition of the
crime and cast as a defensive issue whereas any definition of an offence can be
reformulated so as to include all possible defences within it. It is 26
necessary to concentrate not on technicalities and niceties of language but
rather on matters of substance. I do not have in mind cases within the narrow
exception "limited to offences arising under enactments which prohibit the
doing of an act save in specified circumstances or by persons of specified
classes or with specified qualifications or with the licence or permission of
specified authorities";
Section 28 of the
Misuse of Drugs Act, 1971 was read in the manner which was compatible with
convention rights opining that Section 28(2) and (3) create an evidential
burden on the accused.
Applicability of the
doctrine of compatibility may be somewhat equated (essential differences
although cannot be ignored) with the applicability of the doctrine of
constitutionality in our country.
Sections 35 and 54 of
the Act may have to be read in the light of Articles 14 and 21 of the
Constitution of India.
We may notice that
Sachs, J. in State v. Coetzee [(1997) 2 LRC 593] explained the significance of
the presumption of innocence in the following terms :- "There is a paradox
at the heart of all criminal procedure in that the more serious the crime and
the greater the public interest in securing convictions of the guilty, the more
important do constitutional protections of the accused become. The starting point
of any balancing enquiry where constitutional rights are concerned must 27 be
that the public interest in ensuring that innocent people are not convicted and
subjected to ignominy and heavy sentences massively outweighs the public
interest in ensuring that a particular criminal is brought to book... Hence the
presumption of innocence, which serves not only to protect a particular
individual on trial, but to maintain public confidence in the enduring
integrity and security of the legal system. Reference to the prevalence and
severity of a certain crime therefore does not add anything new or special to
the balancing exercise. The perniciousness of the offence is one of the givens,
against which the presumption of innocence is pitted from the beginning, not a
new element to be put into the scales as part of a justificatory balancing
exercise. If this were not so, the ubiquity and ugliness argument could be used
in relation to murder, rape, car- jacking, housebreaking, drug-smuggling,
corruption . . .
the list is
unfortunately almost endless, and nothing would be left of the presumption of
innocence, save, perhaps, for its relic status as a doughty defender of rights
in the most trivial of cases".
In R. v. Hansen
[(2007) NZSC 7], while construing Section 6(6) of the Misuse of Drugs Act, 1975
the New Zealand Supreme Court held as under :
"In the context
of a prosecution for an offence of possession of controlled drugs for the
purpose of supply, that reversal of the onus of proof is obviously inconsistent
with the aspect of the presumption of innocence that requires the Crown to
prove all elements of a crime beyond reasonable doubt. While the Crown must
prove to that standard that the person charged was in possession of the
stipulated quantity of drugs, the jury can 28 convict even if it is left with
a reasonable doubt on the evidence over whether the accused had the purpose of
supply of the drugs concerned. Indeed, as Lord Steyn pointed out in R v
Lambert, the jury is obliged to convict if the version of the accused is as
likely to be true as not."
However, in our
opinion, limited inroad on presumption would be justified. We may consider the
question from another angle.
The doctrine of res
ipsa loquitur providing for a reverse burden has been applied not only in civil
proceedings but also in criminal proceedings.
Home vs. Dorset Yacht
Company [1970 (2) ALL E.R. 294], House of Lords developed the common law
principle and evolved a presumptive duty to care.
It is, however, of
some interest to note that in Syed Akbar vs. State of Karnataka [AIR 1979 SC
1848] this Court held:
"28. In our
opinion, for reasons that follow, the first line of approach which tends to
give the maxim a larger effect than that of a merely permissive inference, by
laying down that the application of the maxim shifts or casts, even in the
first instance, the burden on the defendant who in order to exculpate himself
must rebut the presumption of negligence against him, cannot, as such, be
invoked in the trial of criminal cases where the accused stands charged for
causing injury or death by 29 negligent or rash act. The primary reasons for
non- application of this abstract doctrine of res ipsa loquitur to criminal
trials are: Firstly, in a criminal trial, the burden of proving everything essential
to the establishment of the charge against the accused always rests on the
prosecution, as every man is presumed to be innocent until the contrary is
proved, and criminality is never to be presumed subject to statutory exception.
No such statutory exception has been made by requiring the drawing of a
mandatory presumption of negligence against the accused where the accident
"tells its own story" of negligence of somebody. Secondly, there is a
marked difference as to the effect of evidence viz. the proof, in civil and
criminal proceedings. In civil proceedings, a mere preponderance of probability
is sufficient, and the defendant is not necessarily entitled to the benefit of
every reasonable doubt; but in criminal proceedings, the persuasion of guilt
must amount to such a moral certainty as convinces the mind of the Court, as a
reasonable man beyond all reasonable doubt. Where negligence is an essential
ingredient of the offence, the negligence to be established by the prosecution
must be culpable or gross and not the negligence merely based upon an error of
judgment. As pointed out by Lord Atkin in Andrews v. Director of Public
Prosecutions, "simple lack of care such as will constitute civil
liability, is not enough"; for liability under the criminal law "a
very high degree of negligence is required to be proved. Probably, of all the
epithets that can be applied `reckless' most nearly covers the case".
(emphasis supplied)
The said dicta was followed in Jacob Mathew vs. State of Punjab [(2005) 6 SCC
1]. We may, however, notice that the principle of `res ipsa loquitur' has been
applied in State of A.P. v. C. Uma Maheswara Rao & 30 Anr. [2004 (4) SCC
399] {see also B. Nagabhushanam v. State of Karnataka (2008) 7 SCALE 716}.
The Act specifically
provides for the exceptions.
It is a trite law
that Presumption of innocence being a human right cannot be thrown aside, but
it has to be applied subject to exceptions.
Independence of
judiciary must be upheld. The superior courts should not do something that would
lead to impairment of basic fundamental and human rights of an accused. We may
incidentally notice a decision of the Privy Council in an appeal from the
Supreme Court of Mauritius in The State v. Abdul Rashid Khoyratty, [2006] UKPC
13. In that case, an attempt on the part of the Parliament to curtail the power
of the court to grant bail in respect of the Dangerous Drugs Act (Act No.32 of
1986) was held to be unconstitutional being contrary to the doctrine of
separation of power, necessary to protect individual liberty stating that the
power to grant bail is exclusively within the judicial domain. A constitutional
amendment to overcome the impact of the said decision was also held to be
unconstitutional by the Supreme Court of Mauritius. In Abdul Rashid Khoyratty
(supra), the Privy Council upheld the said view.
31 Dealing with the
provisions of Sections 118(b) and 139 of the Negotiable Instruments Act, 1881
in Krishna Janardhan Bhat v. Dattatraya G. Hegde [2008 (1) SCALE 421] this
Court upon referring to Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC
16], opined:
"32. But, we may
at the same time notice the development of law in this area in some
jurisdictions.
The presumption of
innocence is a human right. [See Narender Singh & Anr. v. State of M.P.
(2004) 10 SCC 699,
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC
294 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (2007) 1
SCC 70] Article 6(2) of he European Convention on Human Rights provides :
"Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law". Although India is not bound by the
aforementioned Convention and as such it may not be necessary like the
countries forming European countries to bring common law into land with the
Convention, a balancing of the accused's rights and the interest of the society
is required to be taken into consideration. In India, however, subject to the
statutory interdicts, the said principle forms the basis of criminal
jurisprudence. For the aforementioned purpose the nature of the offence,
seriousness as also gravity thereof may be taken into consideration. The courts
must be on guard to see that merely on the application of presumption as
contemplated under Section 139 of the Negotiable Instruments Act, the same may
not lead to injustice or mistaken conviction. It is for the aforementioned
reasons that we have taken into 32 consideration the decisions operating in
the field where the difficulty of proving a negative has been emphasized. It is
not suggested that a negative can never be proved but there are cases where
such difficulties are faced by the accused e,g,. honest and reasonable mistake
of fact. In a recent Article "The Presumption of Innocence and Reverse
Burdens : A Balancing Duty" published in [2007] C.L.J. (March Part) 142 it
has been stated :- "In determining whether a reverse burden is compatible
with the presumption of innocence regard should also be had to the pragmatics
of proof. How difficult would it be for the prosecution to prove guilt without
the reverse burden? How easily could an innocent defendant discharge the
reverse burden? But courts will not allow these pragmatic considerations to
override the legitimate rights of the defendant.
Pragmatism will have
greater sway where the reverse burden would not pose the risk of great
injustice - where the offence is not too serious or the reverse burden only
concerns a matter incidental to guilt. And greater weight will be given to
prosecutorial efficiency in the regulatory environment."
The above stated
principles should be applied in each case having regard to the statutory
provisions involved therein.
We may, however,
notice that recently in M/s. Seema Silk & Sarees & Anr. v. Directorate
of Enforcement & Ors. [2008 (7) SCALE 624], in a 33 case where the
constitutionality of the provisions of Sections 18(2) and 18 (3) of the Foreign
Exchange Regulation Act, 1973 were questioned on the ground of infringing the
`equality clause' enshrined in Article 14 of the Constitution of India, this
Court held:
"16. A legal
provision does not become unconstitutional only because it provides for a
reverse burden. The question as regards burden of proof is procedural in
nature. [See Hiten P. Dalal v. Bratindranath Banerjee,(2001) 6 SCC 16 and M.S.
Narayana Menon v. State of Kerala, (2006) 6 SCC 39]
17. The presumption
raised against the trader is a rebuttable one. Reverse burden as also statutory
presumptions can be raised in several statutes as, for example, the Negotiable
Instruments Act, Prevention of Corruption Act, TADA, etc.
Presumption is raised
only when certain foundational facts are established by the prosecution. The
accused in such an event would be entitled to show that he has not violated the
provisions of the Act. In a case of this nature, particularly, when an appeal
against the order of the Tribunal is pending, we do not think that the
appellants are entitled to take the benefit thereof at this stage. Such
contentions must be raised before the criminal court.
18. Commercial
expediency or auditing of books of accounts cannot be a ground for questioning
the constitutional validity of a Parliamentary Act. If the Parliamentary Act is
valid and constitutional, the same cannot be declared ultra vires only because
the appellant faces some difficulty in writing off the bad debts in his books
of accounts. He may do so. But that does not mean the statute is
unconstitutional or the criminal prosecution becomes vitiated in law.
34 Provisions
imposing reverse burden, however, must not only be required to be strictly
complied with but also may be subject to proof of some basic facts as envisaged
under the statute in question.
The provisions of
Section 35 of the Act as also Section 54 thereof, in view of the decisions of
this Court, therefore, cannot be said to be ex facie unconstitutional. We
would, however, keeping in view the principles noticed hereinbefore examine the
effect thereof, vis-`-vis the question as to whether the prosecution has been
able to discharge its burden hereinafter.
BURDEN OF PROOF The
provisions of the Act and the punishment prescribed therein being indisputably
stringent flowing from elements such as a heightened standard for bail, absence
of any provision for remissions, specific provisions for grant of minimum
sentence, enabling provisions granting power to the Court to impose fine of
more than maximum punishment of Rs.2,00,000/- as also the presumption of guilt
emerging from possession of Narcotic Drugs and Psychotropic substances, the
extent of burden to prove the foundational facts on the prosecution, i.e.,
`proof beyond all reasonable doubt' would be more onerous. A heightened
scrutiny test would be 35 necessary to be invoked. It is so because whereas,
on the one hand, the court must strive towards giving effect to the
parliamentary object and intent in the light of the international conventions,
but, on the other, it is also necessary to uphold the individual human rights
and dignity as provided for under the UN Declaration of Human Rights by
insisting upon scrupulous compliance of the provisions of the Act for the
purpose of upholding the democratic values. It is necessary for giving effect
to the concept of `wider civilization'. The courts must always remind itself
that it is a well settled principle of criminal jurisprudence that more serious
the offence, the stricter is the degree of proof. A higher degree of assurance,
thus, would be necessary to convict an accused. In State of Punjab v. Baldev
Singh, (1999) 3 SCC 977, it was stated:
"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."
[See also Ritesh
Chakravarty v. State of Madhya Pradesh, JT 2006 (12) SC 416] It is also
necessary to bear in mind that superficially a case may have an ugly look and
thereby, prima facie, shaking the conscience of any court 36 but it is well
settled that suspicion, however high may be, can under no circumstances, be
held to be a substitute for legal evidence.
Sections 35 and 54 of
the Act, no doubt, raise presumptions with regard to the culpable mental state
on the part of the accused as also place burden of proof in this behalf on the
accused; but a bare perusal the said provision would clearly show that
presumption would operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An initial burden exists
upon the prosecution and only when it stands satisfied, the legal burden would
shift. Even then, the standard of proof required for the accused to prove his
innocence is not as high as that of the prosecution. Whereas the standard of
proof required to prove the guilt of accused on the prosecution is "beyond
all reasonable doubt" but it is `preponderance of probability'on the
accused. If the prosecution fails to prove the foundational facts so as to
attract the rigours of Section 35 of the Act, the actus reus which is
possession of contraband by the accused cannot be said to have been
established.
With a view to bring
within its purview the requirements of Section 54 of the Act, element of
possession of the contraband was essential so as to shift the burden on the
accused. The provisions being exceptions to the 37 general rule, the generality
thereof would continue to be operative, namely, the element of possession will
have to be proved beyond reasonable doubt.
Whether the burden on
the accused is a legal burden or an evidentiary burden would depend on the
statute in question. The purport and object thereof must also be taken into
consideration in determining the said question. It must pass the test of
doctrine of proportionality. The difficulties faced by the prosecution in
certain cases may be held to be sufficient to arrive at an opinion that the
burden on the accused is an evidentiary burden and not merely a legal burden.
The trial must be fair.
The accused must be
provided with opportunities to effectively defend himself. In Sheldrake v.
Director of Public Prosecutions [(2005) 1 All ER 237] in the following terms:
"21. From this
body of authority certain principles may be derived. The overriding concern is
that a trial should be fair, and the presumption of innocence is a fundamental
right directed to that end. The convention does not outlaw presumptions of fact
or law but requires that these should be kept within reasonable limits and
should not be arbitrary. It is open to states to define the constituent
elements of a criminal offence, excluding the requirements of mens rea.
But the substance and
effect of any presumption adverse to a defendant must be examined, and must be
reasonable. Relevant to any judgment on reasonableness or proportionality will
be the opportunity given to the defendant to rebut the 38 presumption, maintenance
of the rights of the defence, flexibility in application of the presumption,
retention by the court of a power to assess the evidence, the importance of
what is at stake and the difficulty which a prosecutor may face in the absence
of a presumption. Security concerns do not absolve member states from their
duty to observe basic standards of fairness. The justifiability of any
infringement of the presumption of innocence cannot be resolved by any rule of
thumb, but on examination of all the facts and circumstances of the particular
provision as applied in the particular case."
(emphasis added) It
is, however, interesting to note the recent comments on Sheldrake (supra) by
Richard Glover in an Article titled "Sheldrake Regulatory Offences and
Reverse Legal Burdens of Proof" [(2006) 4 Web JCLI] wherein it was stated:
"It is apparent
from the records in Hansard (implicitly if not expressly) that the Government
was content for a legal onus to be on the defendant when it drafted the Road
Traffic Act 1956. An amendment to the Bill was suggested in the Lords
"which puts upon the accused the onus of showing that he had no intention
of driving or attempting to drive a motor vehicle" (Lord Brabazon 1955,
col 582). Lord Mancroft, for the Government, although critical of the amendment
stated: "...the Government want to do exactly what he wants to do. We
have, therefore, to try to find some means of getting over this technical
difficulty" (Lord Mancroft 1955, col 586). It is submitted that this 39
tends to suggest that the Government intended a reverse legal burden.
The reverse legal
burden was certainly in-keeping with the tenor of the 1956 Act to "keep
death off the road" (Lord Mancroft 1954, col 637) by increased regulation
of road transport, particularly in the light of a sharp increase in reported
road casualties in 1954 - there was an 18 per cent increase (Lord Mancroft
1954, col 637). The Times lead article for the 4 July 1955 (at 9d) stressed the
Bill's importance for Parliament:
"They have the
casualty lists - 5,000 or more killed on the roads every year, 10 times as many
killed and more than 30 times as many slightly hurt". This was "a
national scandal". The Earl of Selkirk, who introduced the Bill in the
Lords, remarked that "we require a higher standard of discipline on the
roads" (The Earl of Selkirk 1954, col 567) and Lord Mancroft commented
specifically in relation to `being drunk in charge' that "...we should be
quite right if we erred on the side of strictness" (Lord Mancroft 1955, col
586).
Notwithstanding this
historical background it was, of course, open to their Lordships in Sheldrake
to interpret section 5(2) as only imposing an evidential burden on the
defendant. Lord Bingham referred to the courts' interpretative obligation under
the Human Rights Act 1998 s3 as "a very strong and far-reaching one, and
may require the court to depart from the legislative intention of
Parliament" ([2004] UKHL 43, para 28).
However, he must also
have had in mind further dicta from the recent judgment in Ghaidan v
Godin-Mendoza:
40 "Parliament
is charged with the primary responsibility for deciding the best way of dealing
with social problems. The court's role is one of review. The court will reach a
different conclusion from the legislature only when it is apparent that the
legislature has attached insufficient importance to a person's Convention
rights" (Lord Nicholls, [2004] UKHL 30, para 19. Also see Johnstone [2003]
UKHL 28, para 51).
That is, the Courts
should generally defer (11) to the Legislature or, at least, allow them a
discretionary area of judgment (R v DPP, ex p Kebilene [1999] UKHL 43; [2000] 2
AC 326, 380- 381). (Lord Hoffman has criticised the use of the term `deference'
because of its "overtones of servility, or perhaps gratuitous concession"
R (ProLife Alliance) v BBC [2003] UKHL 23, paras 75-762; WLR 1403, 1422.) This
principle now appears firmly established, as is evident from the decision of an
enlarged Privy Council sitting in Attorney-General for Jersey v Holley [2005]
UKPC 23. Lord Nicholls, who again delivered the majority judgment (6-3),
stated:
"The law of
homicide is a highly sensitive and highly controversial area of the criminal
law. In 1957 Parliament altered the common law relating to provocation and
declared what the law on this subject should thenceforth be. In these
circumstances it is not open to judges now to change (`develop') the common law
and thereby depart from the law as declared by Parliament"
(para 22).
Parliament's
intentions also appear to have been of particular importance in the recent case
Makuwa [2006] EWCA Crim 175, which concerned the 41 application of the
statutory defence provided by the Immigration and Asylum Act 1999 s31(1) to an
offence under the Forgery and Counterfeiting Act 1981 s3 of using a false instrument.
The question was whether there was an onus on a refugee to prove that he (a)
presented himself without delay to the authorities; (b) showed good cause for
his illegal entry and (c) made an asylum claim as soon as was reasonably
practicable.
Moore-Bick LJ's
judgment was, with respect, rather confused. He appeared to approve gravamen
analysis when he stated that the presumption of innocence was engaged by a
reverse burden (paras 28 and 36). However, he then stated that the statutory
defence did not impose on the defendant the burden of disproving an essential
ingredient of the offence (para 32), in which case it is clear that the
presumption of innocence was not engaged.
Nonetheless, he did,
at least, recognise the limits of gravamen analysis, which was clearly
inapplicable to sections 3 and 31 as the statutory defence applied to a number
of other offences under the same Act and the Immigration Act 1971 (para 32).
His Lordship acknowledged that particular attention should be paid to
Parliament's actual intentions (para 33), as had been the case in Sheldrake.
In light of the above
it is submitted that their Lordships in Sheldrake, as in Brown v Stott [2000]
UKPC D3; [2003] 1 AC 681, 711C-D, PC, were entitled to uphold a legal rather
than an evidential burden on the defendant and to take into account other
Convention rights, namely the right to life of members of the public exposed to
the increased danger of accidents from unfit drivers (European Convention on
Human Rights and Fundamental Freedoms, article 2). That is, there were sound
policy reasons for imposing a reverse legal burden, 42 which will be the
subject of further discussion in the second part to this article."
Whereas in India the
statute must not only pass the test of reasonableness as contained in Article
14 of the Constitution of India but also the `liberty' clause contained in
Article 21 of the Constitution of India, in England it must satisfy the
requirements of the Human Rights Act 1998 and consequently the provisions of
European Conventions of Human Rights.
Placing persuasive
burden on the accused persons must justify the loss of protection which will be
suffered by the accused. Fairness and reasonableness of trial as also
maintenance of the individual dignity of the accused must be uppermost in the
court's mind.
In a case involving
infringement of trade mark, the House of Lords in R. v. Johnstone [(2003) 3 All
ER 884] stated the law, thus:
"[52] I turn to
s 92. (1) Counterfeiting is fraudulent trading. It is a serious contemporary problem.
Counterfeiting has adverse economic effects on genuine trade. It also has
adverse effects on consumers, in terms of quality of goods and, sometimes, on
the health or safety of consumers. The Commission of the European Communities
has noted the scale of this `widespread phenomenon with a global impact.'
Urgent steps are needed to combat counterfeiting and piracy (see the Green
Paper, Combating Counterfeiting and Piracy in the Single Market 43 (COM (98)
569 final) and its follow up (COM (2000) 789 final). Protection of consumers
and honest manufacturers and traders from counterfeiting is an important policy
consideration. (2) The offences created by s 92 have rightly been described as
offences of `near absolute liability'. The prosecution is not required to prove
intent to infringe a registered trade mark.
(3) The offences
attract a serious level of punishment: a maximum penalty on indictment of an
unlimited fine or imprisonment for up to ten years or both, together with the
possibility of confiscation and deprivation orders. (4) Those who trade in
brand products are aware of the need to be on guard against counterfeit goods.
They are aware of the need to deal with reputable suppliers and keep records
and of the risks they take if they do not. (5) The s 92 (5) defence relates to
facts within the accused person's own knowledge: his state of mind, and the
reasons why he held the belief in question. His sources of supply are known to
him. (6) Conversely, by and large it is to be expected that those who supply
traders with counterfeit products, if traceable at all by outside
investigators, are unlikely to be co-operative. So, in practice, if the
prosecution must prove that a trader acted dishonestly, fewer investigations
will be undertaken and fewer prosecutions will take place.
[53] In my view
factors (4) and (6) constitute compelling reasons why the s 92(5) defence
should place a persuasive burden on the accused person. Taking all the factors
mentioned above into account, these reasons justify the loss of protection
which will be suffered by the individual. Given the importance and difficulty
of combating counterfeiting, and given the comparative ease with which an
accused can raise an issue about his honesty, overall it is fair and 44
reasonable to require a trader, should need arise, to prove on the balance of
probability that he honestly and reasonably believed the goods were
genuine."
The same principle
applies to this case.
CASE AT HAND
Confession of the Appellant With the aforementioned principles in mind, let us
consider the evidence brought on record by the respondents.
We may, at the
outset, notice that a fundamental error has been committed by the High Court in
placing explicit reliance upon Section 108 of the Customs Act.
It refers to leading
of evidence, production of document or any other thing in an enquiry in
connection of smuggling of goods. Every proceeding in terms of sub-section (4)
of Section 108 would be a judicial proceeding within the meaning of Sections
193 and 228 of the Indian Penal Code. The enquiry contemplated under Section
108 is for the purpose of 1962 Act and not for the purpose of convicting an
accused under any other statute including the provisions of the Act.
45 Appellant
contended that the purported confessions recorded on 2.08.1997 and 4.08.1997
were provided by an officer of the Customs Department roughly and later the
same were written by him under threat, duress and under gun point and had,
thus, not been voluntarily made.
The High Court should
have considered the question having regard to the stand taken by the appellant.
Only because certain personal facts known to him were written, the same by
itself would not lead to the conclusion that they were free and voluntary.
Clause (3) of Article
20 of the Constitution provides that no person accused of any offence shall be
compelled to be a witness against himself.
Any confession made
under Section 108 of the Customs Act must give way to Article 20(3) wherefor
there is a conflict between the two. A retracted confessional statement may be
relied upon but a rider must be attached thereto namely if it is made
voluntary. The burden of proving that such a confession was made voluntarily
would, thus, be on the prosecution. It may not be necessary for us to enter
into the question as to whether the decisions of this Court that a Custom
Officer is not a Police Officer should be revisited in view of the decision of
this Court in Balkrishna Chhaganlal Soni v. State of West Bengal [(1974) 3 SCC
567, wherein it was stated :
46 "On the
proved facts the gold bar is caught in the criminal coils of Section 135, read
with Sections 111 and 123, Customs Act, as the High Court has found and little
has been made out before us to hold to the contrary."
It may also be of
some interest to note the decision of this Court in State of Punjab v. Barkat
Ram [AIR 1962 SC 276], holding:
"17. There has,
however, arisen a divergence of opinion about officers on whom some powers
analogous to those of police officers have been conferred being police officers
for the purpose of S. 25 of the Evidence Act. The view which favours their
being held police officers, is based on their possessing powers which are
usually possessed by the police and on the supposed intention of the
legislature at the time of the enactment of S. 25 of the Evidence Act to be
that the expression 'police officer, should include every one who is engaged in
the work of detecting and preventing crime. The other view is based on the
plain meaning of the expression and on the consideration that the mere fact
that an officer who, by no stretch of imagination is a police officer, does not
become one merely because certain officers similar to the powers of a police
officer are conferred on him."
It was pointed out
that the power of a Police Officer as crime detection and custom officer as
authorities invested with a power to check the smuggling of goods and to impose
penalty for loss of revenue being 47 different, they were not Police Officers
but then the court took notice of the general image of police in absence of
legislative power to enforce other law enforcing agencies for the said purpose
in the following terms :
"23. It is also
to be noticed that the Sea Customs Act itself refers to police officer in
contradistinction to the Customs Officer. Section 180 empowers a police officer
to seize articles liable to confiscation under the Act, on suspicion that they
had been stolen. Section 184 provides that the officer adjudging confiscation
shall take and hold possession of the thing confiscated and every officer of
police, on request of such officer, shall assist him in taking and holding such
possession. This leaves no room for doubt that a Customs Officer is not an
officer of the Police.
24. Section 171-A of
the Act empowers the Customs Officer to summon any person to give evidence or
to produce a document or any other thing in any enquiry which he be making in
connection with the smuggling of any goods."
The extent of right
to a fair trail of an accused must be determined keeping in view the
fundamental rights as adumbrated under Article 21 of the Constitution of India
as also the International Convention and Covenants chartered in Human Rights.
We cannot lose sight of the fact that criminal justice delivery system
prevailing in our country lacks mechanisms to remedy systemic violations of the
accused's core constitutional rights which include the right to effective
assistance of counsel, the right to have 48 exculpatory evidence disclosed,
and the right to be free from suggestive eyewitness identifications, coerced
custodial interrogation and the fabrication of evidence. (See Aggregation in
Criminal Law by Brandon L. Garrett : April 2007 California Law Review Vol. 95
No.2 page 385 at 393).
When, however, the
custom officers exercise their power under the Act, it is not exercising its
power as an officer to check smuggling of goods;
it acts for the
purpose of detection of crime and bringing an accused to book.
This Court in Barkat
Ram (supra) left the question, as to whether officers of departments other than
the Police on whom the powers of Officer-in-charge of a Police Station under
Chapter XIV of the Code of Criminal Procedure has been conferred are police
officers or not for the purpose of Section 25 of the Act, open, stating:
34. In the Oxford
Dictionary, the word "police" is defined thus :
"The department
of government which is concerned with the maintenance of public order and
safety, and the enforcement of the law; the extent of its functions varying
greatly in different countries and at different periods.
The civil force to
which is entrusted the duty of maintaining public order, enforcing regulations
for the prevention and 49 punishment of breaches of the law and detecting
crime; construed as plural, the members of a police force; the constabulary of
a locality."
Shortly stated, the
main duties of the police are the prevention and detection of crimes. A police
officer appointed under the Police Act of 1861 has such powers and duties under
the Code of Criminal Procedure, but they are not confined only to such police
officers. As the State's power and duties increased manifold, acts which were
at one time considered to be innocuous and even praiseworthy have become
offences, and the police power of the State gradually began to operate on
different subjects. Various Acts dealing with Customs, Excise, Prohibition,
Forest, Taxes etc., came to be passed, and the prevention, detection and
investigation of offences created by those Acts came to be entrusted to
officers with nomenclatures appropriate to the subject with reference to which
they functioned. It is not the garb under which they function that matters, but
the nature of the power they exercise or the character of the function they
perform is decisive.
The question,
therefore, in each case is, does the officer under a particular Act exercise
the powers and discharge the duties of prevention and detection of crime? If be
does, he will be a police officer."
Section 25 of the
Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal
[ILR (1884) 6 All. 509] to put a stop to the extortion of confession, by taking
away from the police officers 50 as the advantage of proving such extorted
confession during the trial of accused persons. It was, therefore, enacted to
subserve a high purpose.
The Act is a complete
code by itself. The customs officers have been clothed with the powers of
police officers under the Act. It does not, therefore, deal only with a matter
of imposition of penalty or an order of confiscation of the properties under
the Act but also with the offences having serious consequences.
Section 53 of the Act
empowers the customs officers with the powers of the Station House Officers. An
officer invested with the power of a police officer by reason of a special
statute in terms of sub-section (2) of Section 53 would, thus, be deemed to be
police officers and for the said purposes of Section 25 of the Act shall be
applicable.
A legal fiction as is
well known must be given its full effect. [See UCO Bank and Anr. v. Rajinder
Lal Capoor 2008 (6) SCALE 1] Section 53A of the Act makes such a statement
relevant for the purposes of the said Act. The observations of the High Court,
thus, that confession can be the sole basis of conviction in view of Section
108 of the Customs Act, thus, appear to be incorrect.
51 An inference that
the appellant was subject to duress and coercion would appear from the fact
that he is an Afgan National. He may know English but the use of expressions
such as `homogenous mixture', `drug detection kit', `independent witnesses'
which evince a knowledge of technical terms derived from legal provisions,
possibly could not be attributed to him. Possibility of fabrication of
confession by the officer concerned, thus, cannot altogether be ruled out.
The constitutional
mandate of equality of law and equal protection of law as adumbrated under
Article 14 of the Constitution of India cannot be lost sight of. The courts, it
is well settled, would avoid a construction which would attract the wrath of
Article 14. It also cannot be oblivious of the law that the Act is complete
code in itself and, thus, the provisions of the 1962 Act cannot be applied to
seek conviction thereunder.
This Court in Alok
Nath Dutta v. State of West Bengal [2006 (13) SCALE 467], stated :
"We are not
suggesting that the confession was not proved, but the question is what would
be the effect of a retracted confession. It is now a well- settled principle of
law that a retracted confession is a weak evidence. The court while relying on
such retracted confession must satisfy itself that the same is truthful and
trustworthy. Evidences brought on records by way of judicial confession 52
which stood retracted should be substantially corroborated by other independent
and cogent evidences, which would lend adequate assurance to the court that it
may seek to rely thereupon."
[See also Babubhai
Udesinh Parmar v. State of Gujarat, (2006) 12 SCC 268 ].
In Pon Adithan v.
Deputy Director, Narcotics Control Bureau, Madras [(1999) 6 SCC 1], whereupon
reliance has been placed by the High Court, this Court had used retracted
confession as a corroborative piece of evidence and not as the evidence on the
basis whereof alone, a judgment of conviction could be recorded.
There is another aspect
of the matter which cannot also be lost sight of.
A search and seizure
or an arrest made for the purpose of proceeding against a person under the Act
cannot be different only because in one case the authority was appointed under
the Customs Act and in the other under another. What is relevant is the purpose
for which such arrest or search and seizure is made and investigation is
carried out. The law applicable in this behalf must be certain and uniform.
53 Even otherwise
Section 138B of the 1962 Act must be read as a provision containing certain
important features, namely:
(a) There should be
in the first instance statement made and signed by a person before a competent
custom official.
(b) It must have been
made during the course of enquiry and proceedings under the Customs Act.
Only when these
things are established, a statement made by an accused would become relevant in
a prosecution under the Act. Only then, it can be used for the purpose of
proving the truth of the facts contained therein. It deals with another
category of case which provides for a further clarification. Clause (a) of
sub-section (1) of Section 138B deals with one type of persons and clause (b)
deals with another. The Legislature might have in mind its experience that
sometimes witnesses do not support the prosecution case as for example panch
witnesses and only in such an event an additional opportunity is afforded to
the prosecution to criticize the said witness and to invite a finding from the
court not to rely on the assurance of the court on the basis of the statement
recorded by the Customs Department and for that purpose it is envisaged that a
person may be such whose statement was recorded but while he was examined
before the court, it 54 arrived at an opinion that is statement should be
admitted in evidence in the interest of justice which was evidently to make
that situation and to confirm the witness who is the author of such statement
but does not support the prosecution although he made a statement in terms of
Section 108 of the Customs Act. We are not concerned with such category of
witnesses.
Confessional
statement of an accused, therefore, cannot be made use of in any manner under
Section 138B of the Customs Act. Even otherwise such an evidence is considered
to be of weak nature.
{See Gopal Govind
Chogale v. Assistant Collector of Central Excise and another, [1985 (2) BomCR
499 Paras 12-14]} NON PRODUCTION OF PHYSICAL EVIDENCE The prosecution alleged
that 1.4 kgs heroin was concealed in a cardboard container for carrying grapes
and were recovered from the appellant at Raja Sansi Airport. Essential key
items necessary to prove the same were:
"i) The
cardboard carton allegedly used for carrying the heroin to test the veracity.
55 ii) The bulk,
which establishes the quantity recovered.
iii) The three
homogenous samples of five grams each taken from the bulk amount of heroin,
which would be essential in ascertaining whether the substance that the accused
was allegedly in possession of was, in fact, heroin."
Indisputably, the
cardboard carton was not produced in court being allegedly missing. No
convincing explanation was rendered in that behalf.
The High Court, in
its judgment, stated:
"The case set up
by the prosecution is that the appellant being a member of a crew party, was in
possession of his luggage, which included the cardboard carton, from which the
recovery of heroin was allegedly effected. The appellant himself had presented
the said carton along with the other luggage for custom clearance. From these facts,
at least one thing is clear that the carton which was carrying the contraband,
was under his immediate control. The argument advanced by Mr. Guglani is that
the luggage which was being carried by the crew members, had no specific
identification slips as in the case of an ordinary passenger travelling in an
aircraft. So what was being carried in the carton was within the knowledge of
the appellant alone and, therefore, the element of possession and control of
the contraband qua the appellant is writ large and the presumption of culpable
mental state under Section 35 and 54 of the Act has to be drawn against
him."
56 The inference was
drawn only on the basis of a mere assertion of the witness that the cardboard
carton wherefrom the contraband was allegedly recovered as the one which had
been in possession of the appellant without any corroboration as regards the
purported "apparent practice of crew members carrying their own
luggage" and there being no identification marks on the same. No material
in this behalf has been produced by the respondent. No witness has spoken of
the purported practice. For all intent and purport another presumption has been
raised by the High Court where for no material had been brought on record. No
explanation has been given as to what happened to the container. Its absence
significantly undermines the case of the prosecution. It reduces the
evidentiary value of the statements made by the witnesses referring the fact of
recovery of the contraband there from.
Preservance of original
wrappers, thus, comes within the purview of the direction issued in terms of
Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such
guidelines could not be said to be an error which in a case of this nature can
conveniently be overlooked by the Court.
We are not oblivious
of a decision of this Court in Chief Commercial Manager, South Central Railway,
Secunderabad & Ors. v. G. Ratnam & 57 Ors. [(2007) 8 SCC 212] relating
to disciplinary proceeding, wherein such guidelines were held not necessary to
be complied with but therein also this Court stated:
"In the cases on
hand, no proceedings for commission of penal offences were proposed to be
lodged against the respondents by the investigating officers."
In Moni Shankar v.
Union of India & Anr. [(2008) 3 SCC 484], however, this Court upon noticing
G. Ratnam (supra), stated the law thus:
"15. It has been
noticed in that judgments that Paras 704 and 705 cover the procedures and
guidelines to be followed by the investigating officers, who are entrusted with
the task of investigation of trap cases and departmental trap cases against the
railway officials. This Court proceeded on the premise that the executive
orders do not confer any legally enforceable rights on any persons and impose
no legal obligation on the subordinate authorities for whose guidance they are
issued.
16. We have, as
noticed hereinbefore, proceeded on the assumption that the said paragraphs
being executive instructions do not create any legal right but we intend to
emphasise that total violation of the guidelines together with other factors
could be taken into consideration for the purpose of arriving at a conclusion
as to whether the department has been able to prove the charges against the
delinquent official.
17. The departmental
proceeding is a quasi judicial one. Although the provisions of the Evidence Act
are not applicable in the said proceeding, principles of natural justice are
required to be complied with. The Court exercising power of judicial review are
entitled to consider as to whether while inferring commission of misconduct on
the part of a delinquent officer relevant piece of evidence has been taken into
consideration and irrelevant facts have been excluded therefrom. Inference on
facts must be based on evidence which meet the requirements of legal
principles. The Tribunal was, thus, entitled to arrive at its own conclusion on
the premise that the evidence adduced by the department, even if it is taken on
its face value to be correct in its entirety, meet the requirements of burden
of proof, namely - preponderance of probability. If on such evidences, the test
of the doctrine of proportionality has not been satisfied, the Tribunal was
within its domain to interfere.
We must place on
record that the doctrine of unreasonableness is giving way to the doctrine of
proportionality. (See - State of U.P. v. Sheo Shanker Lal Srivastava [(2007) 4
SCC 669] and Coimbatore District Central Cooperative Bank v. Coimbatore
Distarict Central Cooperative Bank Employees Association and Anr. [2004 QB
1004]."
It was furthermore
opined :
"It may be that
the said instructions were for compliance of the Vigilance Department, but
substantial compliance therewith was necessary, even if the same were not
imperative in character.
A departmental
instruction cannot totally be ignored. The Tribunal was entitled to take the
same into consideration along with other materials brought on record for the
purpose of arriving at a 59 decision as to whether normal rules of natural
justice had been complied with or not."
Guidelines issued
should not only be substantially complied, but also in a case involving penal
proceedings, vis-`-vis a departmental proceeding, rigours of such guidelines
may be insisted upon. Another important factor which must be borne in mind is
as to whether such directions have been issued in terms of the provisions of
the statute or not.
When directions are
issued by an authority having the legal sanction granted therefor, it becomes
obligatory on the part of the subordinate authorities to comply therewith.
Recently, this Court
in State of Kerala & Ors. v. Kurian Abraham (P) Ltd. & Anr. [(2008) 3
SCC 582], following the earlier decision of this Court in Union of India v.
Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are
mandatory in nature.
Logical corollary of
these discussions is that the guidelines such as those present in the Standing
Order cannot be blatantly flouted and substantial compliance therewith must be
insisted upon for so that sanctity of physical evidence in such cases remains
intact. Clearly, there has been no substantial compliance of these guidelines
by the investigating 60 authority which leads to drawing of an adverse
inference against them to the effect that had such evidence been produced, the
same would have gone against the prosecution.
Omission on the part
of the prosecution to produce evidence in this behalf must be linked with
second important piece of physical evidence that the bulk quantity of heroin
allegedly recovered indisputably has also not been produced in court.
Respondents contended that the same had been destroyed. However, on what
authority it was done is not clear. Law requires that such an authority must
flow from an order passed by the Magistrate. Such an order whereupon reliance
has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that
at no point of time any prayer had been made for destruction of the said goods
or disposal thereof otherwise. What was necessary was a certificate envisaged
under Section 110(1B) of the 1962 Act. An order was required to be passed under
the aforementioned provision providing for authentication, inventory etc. The
same does not contain within its mandate any direction as regards destruction.
The only course of action the prosecution should have resorted to is to obtain
an order from the competent court of Magistrate as envisaged under Section 52A
of the Act in terms whereof the officer empowered under Section 53 upon
preparation of an inventory of narcotic 61 drugs containing such details
relating to their description, quality, quantity, mode of packing, marks,
numbers or such other identifying particulars of the narcotic drugs or
psychotropic substances or the packing in which they are packed, country of origin
and other particulars as he may consider relevant to the identity of the
narcotic drugs or psychotropic substances in any proceedings there under make
an application for any or all of the following purposes :
"(a) Certifying
correctness of the inventory so prepared; or (b) Taking, in the presence of
such Magistrate, photographs substances and certifying such photographs as
true; or (c) Allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate and certifying the correctness
of any list of samples so drawn."
Sub-section (3) of
Section 52A of the Act provides that as and when such an application is made,
the Magistrate may, as soon as may be, allow the application. The reason where for
such a provision is made would be evident from sub-section (4) of Section 52A
which reads as under :
"52A. Disposal
of seized narcotic drugs and psychotropic substances.
62 (4)
Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972)
or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an
offence under this Act, shall treat the inventory, the photographs of narcotic
drugs or psychotropic substances and any list of samples drawn under sub-
section (2) and certified by the Magistrate, as primary evidence in respect of
such offence."
Concededly neither
any such application was filed nor any such order was passed. Even no notice
has been given to the accused before such alleged destruction.
We must also notice a
distinction between Section 110(1B) of the 1962 Act and Section 52A(2) of the
Act as sub-section (4) thereof, namely, that the former does not contain any
provision like sub-section (4) of Section 52A. It is of some importance to
notice that paragraph 3.9 of the Standing Order requires pre-trial disposal of
drugs to be obtained in terms of Section 52A of the Act. Exhibit PJ can be
treated as nothing other than an order of authentication as it is a certificate
under Section 110(1B) of the 1962 Act as the aspect of disposal clearly provided
for under Section 52A of the Act is not alluded to. The High Court in its
judgment purported to have relied upon an assertion made by the prosecution
with regard to prevalence of a purported general practice adopted by the
Customs Department to 63 obtain a certificate in terms of the said provision
prior to destruction of case property, stating:
"To a specific
query put to Mr. Guglani by the Court with regard to aforesaid arguments, he
fairly states that the general practice adopted by the Customs Department is
that before destroying the case property, a certificate is obtained u/s 100
(1B) of Customs Act. He states that in this regard, a sample as per the
provisions contained in sub clause (c) to clause (1B) is also drawn for the
purposes of certification of correctness so that at a later stage, the identity
of the case property is not disputed.
May be, in my view,
some irregularities are committed in this case by the Customs Department while
obtaining the order Exhibit PJ) from the court for the reason that if the case
property was to be destroyed, at least a notice should have been given to the
accused on the application moved u/s 100 (1B) of the Customs Act or at least a
specific request in this regard should have been made in the application but at
the same time, the aforesaid irregularity cannot be said to be a vital flaw in
the case of the prosecution for which the appellant can derive any benefit
especially under the circumstances when confessional statements made by the
appellant are held to be made voluntary as observed by me hereinabove...
Similarly, non- production of cardboard card board carton is also not fatal to
the prosecution."
The question which
arises for our consideration is as to whether it is permissible to do so.
Evidently it is not. Firstly because taking recourse to 64 the purported
general practice adopted by the Customs Department is not envisaged in regard
to prosecution under the Act. Secondly, no such general practice has been
spoken of by any witness. A statement made at the Bar as regards existence of
such a purported general practice to say the least cannot be a substitute of
evidence whereupon only the court could rely upon. Secondly, the High Court
failed to take into consideration that a certificate issued under Section
110(1B) of the 1962 Act can be recorded as a certificate of authentication and
no more; authority for disposal would require a clear direction of the Court in
terms of Section 52A of the Act.
Thirdly, the High
Court failed and/or neglected to consider that physical evidence being the
property of the Court and being central to the trial must be treated and
disposed of in strict compliance of the law.
The High Court
proceeded on the basis that non-production of physical evidence is not fatal to
the prosecution case but the fact remains that a cumulative view with respect
to the discrepancies in physical evidence creates an overarching inference
which dents the credibility of the prosecution. Even for the said purpose the
retracted confession on the part of the accused could not have been taken
recourse to.
The last but not the
least, physical evidence relating to three samples taken from the bulk amount
of heroin were also not produced. Even if it is 65 accepted for the sake of
argument that the bulk quantity was destroyed, the samples were essential to be
produced and proved as primary evidence for the purpose of establishing the
fact of recovery of heroin as envisaged under Section 52A of the Act.
The fate of these
samples is not disputed. Two of them although were kept in the malkahana along
with the bulk but were not produced. No explanation has been offered in this
regard. So far as the third sample which allegedly was sent to the Central
Forensic Science Laboratory, New Delhi is concerned, it stands admitted that
the discrepancies in the documentary evidence available have appeared before
the court, namely:
i) While original
weight of the sample was 5 gms, as evidenced by Ex. PB, PC and the letter
accompanying Ex.PH, the weight of the sample in the laboratory was recorded as
8.7 gms.
ii) Initially, the
colour of the sample as recorded was brown, but as per the chemical examination
report, the colour of powder was recorded as white.
We are not oblivious
of the fact that a slight difference in the weight of the sample may not be
held to be so crucial as to disregard the entire prosecution case as ordinarily
an officer in a public place would not be carrying a good scale with him. Here,
however, the scenario is different.
66 The place of
seizure was an airport. The officers carrying out the search and seizure were
from the Customs Department. They must be having good scales with them as a
marginal increase or decrease of quantity of imported articles whether
contraband or otherwise may make a huge difference under the Customs Act.
We cannot but also
take notice other discrepancies in respect of the physical evidence which are:
i) The bulk was kept
in cotton bags as per the Panchnama, Ex PC, while at the time of receiving them
in the malkhana, they were packed in tin as per the deposition of PW 5.
ii) The seal, which
ensures sanctity of the physical evidence, was not received along with the
materials neither at the malkhana nor at the CFSL, and was not produced in
Court.
Physical evidence of
a case of this nature being the property of the court should have been treated
to be sacrosanct. Non-production thereof would warrant drawing of a negative
inference within the meaning of Section 114(g) of the Evidence Act. While there
are such a large number of discrepancies, if a cumulative effect thereto is
taken into consideration on the basis whereof the permissive inference would be
that serious doubts are 67 created with respect of the prosecution's endeavour
to prove the fact of possession of contraband from the appellant.
This aspect of the
matter has been considered by this Court in Jitendra v. State of U.P. [(2004)
10 SCC 562], in the following terms :
"In the trial it
was necessary for the prosecution to establish by cogent evidence that the
alleged quantities of charas and ganja were seized from the possession of the
accused. The best evidence would have been the seized materials which ought to
have been produced during the trial and marked as material objects. There is no
explanation for this failure to produce them. Mere oral evidence as to their
features and production of panchanama does not discharge the heavy burden which
lies on the prosecution, particularly where the offence is punishable with a
stringent sentence as under the NDPS, Act."
Several other lacunae
in the prosecution case had been brought to our notice. The samples had been
kept at the airport for a period of three days.
They were not
deposited at the malkhana. It was obligatory on the part of the Customs
Department to keep the same in the safe custody. Why such precautions were not
taken is beyond anybody's comprehension.
The High Court,
however, opined that the physical evidence was in safe custody. Such an
inference was drawn on the basis that the seals were 68 intact but what was
not noticed by the High Court is that there are gaping flaws in the treatment,
disposal and production of the physical evidence and the conclusion that the
same was in safe custody required thorough evidence on the part of the
prosecution which suggests that the sanctity of the physical evidence was not
faulted. It was not done in the present case.
PW-1 Kulwant Singh,
Inspector-Customs, in his deposition, stated:
"I had told the
accused that I asked the accused that his search be conducted under Section 50
of the N.D.P.S.
Act before a gazetted
officer or a magistrate. I did not mention this fact in the panchanama Ex. PC.
It is incorrect to suggest that version in Ex. PA was roughly drafted by the
department and given to the accused for writing. It is also incorrect to
suggest that the accused was not aware of the provisions of Section 50 of the
N.D.P.S. Act, 1985. It is incorrect to suggest that after the recovery of
heroin from the cartoon, the option for the personal search of the accused was
given to the accused that whether he be searched before a gazetted officer or
before a magistrate. It is correct that on the panchanama Ex. PC on thumb
impression mark `A', witness No. 2 is written but his name is not specifically
written."
The samples taken allegedly
contained the signature of the appellant as also those of the custom officials.
PW-1, in his deposition, stated:
"I have also not
brought the relevant samples in the court today. It is incorrect to suggest
that I have deliberately not produced the samples in the 69 court today. So
far as I remember, three seals were affixed on the test memo sent to the
Chemical Examiner. The sample was sent to the office of Chemical Examiner on
4.8.1997. I do not send the samples myself. The signatures of both the
independent witnesses were not appended on the sealed samples and the case
property.
Volunteered, the
accused had signed the remaining bulk and the samples. It is incorrect that
portion Ex.PG/1 was later on incorporated at my instance."
However, in Exhibit
PH against the column `marking on envelope (s)/ packet (s)' there was a blank
line. It did not say a word with regard to the accused's signature on the
sample. Exhibit PC, however, suggests that the samples bore the appellant's
signature. The sample, thus, with only a seal of custom by itself cannot be
stated to be one recovered from the appellant specially when the prosecution
case is that it contained accused's signature and date of it which is not found
on the original. The independent witnesses did not sign the samples. The
original seal was not produced. It is a mystery to whom the seal was entrusted.
Thus, the change in colour, weight of the sample as also the absence of the
accused's signature thereupon cannot be totally ignored.
PW-2 Shri K.K. Gupta
stated:
70 "The
panchnama was prepared after the recovery at about 8.30 P.M. before me. I did
not make offer to the accused myself regarding the search of the accused that
whether he wants to be searched before a gazetted officer or before a magistrate.
In my presence, the panchnama was not read over to the accused. It is correct
that the only signatures of the accused were obtained on panchnama Ex.
PC in my presence. I
had gone through the panchnama and then I signed the same."
He furthermore accepted:
"It is correct
that many recoveries have been effected from the passengers Arian Afghan
Airlines earlier to this recovery and cases are pending before this
court."
PW-1 stated that seal
had been given to PW-4, Rajesh Sodhi, Deputy Commissioner, but PW-4 denied the
same.
His deposition, inter
alia, is to the following effect:
"In August 1997,
I was posted at A.C. In charge Raja Sansi Airport. On 1.8.1997, heroin One kg.
460 grams was
recovered from the accused (1.460 Kgs.). This recovery was made by Inspector
Kulwant Singh and K.K. Gupta Supdt. Customs and I was informed of this
recovery. Samples and remaining bulk were handed over to me by Kulwant Singh,
Inspector bearing seal No.122 of the Customs Divn. Amritsar. There is no
Malkhana of the Customs department at the Raja Sansi Airport. On 4.8.1997
samples were handed over to Ashok Kumar for taking to the Central Revenue
Control Laboratory, Delhi. Remaining 71 case property was given to Kulwant
Singh for depositing the same in Malkhana at Amritsar. So long as the case
property remained in my possession the same was not tampered with.
Cross-examination by
Sh. D.S. Attari, Adv. I was not given sample seal along with the case property
by Inspector Kulwant Singh. Sample was of 5 grams. I do not remember whether 5
grams weight was gross or net. I did not made entry regarding receipt of sample
and the case property.
I also did not make
any entry regarding sending the samples to the Central Revenue Control
Laboratory at New Delhi. It is wrong to suggest that sample and the case
property was not deposited with me by Kulwant Singh. I also did not produce the
case property in the court. It is wrong to suggest that I have deposed falsely
being official witness."
The seal was not even
deposited in the malkhana. As no explanation whatsoever has been offered in
this behalf, it is difficult to hold that sanctity of the recovery was ensured.
Even the malkhana
register was not produced. There exist discrepancies also in regard to the time
of recovery. The recovery memo Exhibit PB shows that the time of seizure was
11.20 pm. PW1, Kulwant Singh and PW2, K.K. Gupta, however, stated that the time
of seizure was 8.30 pm. Appellant's defence was that some carton left by some
passenger 72 was passed upon him being a crew member in this regard assumes
importance (See Jitendra (supra) Para 6).
Panchnama was said to
have been drawn at 10.00 pm as per PW1 whereas PW2 stated that panchnama was
drawn at 8.30 pm. Exhibit PA, containing the purported option to conduct
personal search under Section 50 of the Act, only mentioned time when the
flight landed at the airport.
In Baldev Singh
(supra), it was stated :
"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 dual purpose - to protect a person against false accusation and
frivolous charges as also to lend credibility 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 73 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
think 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
judicial process may come under 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 law and may have the effect of unconscionably
compromising the administration of justice. That cannot be permitted."
Independent Witnesses
It is accepted that when the appellant allegedly opted for being searched by a
Magistrate or a Gazetted Officer, Kuldip Singh called K.K. Gupta,
Superintendent Customs, PW2) and independent witnesses Mahinder Singh and
Yusaf. Whereas K.K. Gupta was examined as PW2, the said Mahinder Singh and
Yusuf were not examined by the prosecution. There is nothing on record to show
why they could not be produced. Their status in life or location had also not
been stated. It is also not known as to why only the said two witnesses were
sent for. The fact remains that they had not been examined. Although examination
of independent witnesses in all 74 situations may not be imperative, if they
were material, in terms of Section 114(e) of the Evidence Act, an adverse
inference could be drawn.
In a case of his
nature, where there are a large number of discrepancies, the appellant has been
gravely prejudiced by their non- examination. It is true that what matters is
the quality of the evidence and not the quantity thereof but in a case of this
nature where procedural safeguards were required to be strictly complied with,
it is for the prosecution to explain why the material witnesses had not been
examined.
Matter might have
been different if the evidence of the Investigating Officer who recovered the
material objects was found to be convincing. The statement of the Investigating
Officer is wholly unsubstantiated. There is nothing on record to show that the
said witnesses had turned hostile.
Examination of the
independent witnesses was all the more necessary inasmuch as there exist a
large number of discrepancies in the statement of official witnesses in regard
to search and seizure to which we may now take note of.
Discrepancies in the
Statements of Official Witnesses Section 50 of the Act provides for an option
to be given. This Court in Baldev Singh (supra) quoted with approval the
decision of the Supreme 75 Court of United States in Miranda v. Arizona
[(1966) 384 US 436] in the following terms :
"The Latin maxim
salus populi suprema lex (the safety of the people is the supreme law) and
salus republicae suprema lex (safety of the State is the supreme law) coexist
and are not only important and relevant but lie at the heart of the doctrine
that the welfare of an individual must yield to that of the community. The
action of the State, however, must be `right, just and fair'."
Justness and fairness
of a trial is also implicit in Article 21 of the Constitution.
A fair trial is again
a human right. Every action of the authorities under the Act must be construed
having regard to the provisions of the Act as also the right of an accused to
have a fair trial.
The courts, in order
to do justice between the parties, must examine the materials brought on record
in each case on its own merits. Marshalling and appreciation of evidence must
be done strictly in accordance with the well known legal principles governing
the same; where for the provisions of the Code of Criminal Procedure and
Evidence Act must be followed.
76 Appreciation of
evidence must be done on the basis of materials on record and not on the basis
of some reports which have nothing to do with the occurrence in question.
Article 12 of the
Universal Declaration of Human Rights provides for the Right to a fair trail.
Such rights are enshrined in our Constitutional Scheme being Article 21 of the
Constitution of India. If an accused has a right of fair trial, his case must
be examined keeping in view the ordinary law of the land.
It is one thing to
say that even applying the well-known principles of law, they are found to be
guilty of commission of offences for which they are charged but it is another
thing to say that although they cannot be held guilty on the basis of the
materials on record, they must suffer punishment in view of the past experience
or otherwise.
PW1 states that he
had asked the accused that a search be conducted under the Act before a
Gazetted Officer or a Magistrate but the same was not mentioned in the
panchnama Exhibit PC. If the evidence of PW1 in that behalf is correct, we fail
to understand how PW2 satisfied himself that an 77 option had been given to
the accused to be searched before a gazetted officer. Exhibit PA shows that
option to search was given after the recovery was made since it is stated
therein:
"After recovery
the custom officer informed his senior officer and was asked whether I would
like to present myself for personal search before a Magistrate or a Gazetted
Officer"
The said document,
therefore, indicates that the gazetted officer or the independent witnesses
were not present at the time of purported recovery.
Exhibit PC, however,
shows the presence of independent witnesses at the time of recovery. The
credibility of the statements, having regard to these vital discrepancies
stands eroded.
A person who is
sought to be arrested or searched has some rights having regard to the decision
of this Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416]. D.K.
Basu rule states that if a person in custody is subjected to interrogation, he
must be informed in clear and unequivocal terms as to his right to silence.
This rule was also invoked in Balbir Singh (supra).
We are not oblivious
that the decision of State of Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC
350] wherein Section 50 of the Act having 78 been held to be inapplicable in
relation to a search of a bag but in this case the appellant's person had also
been searched. The High Court disregarded that although Exhibit PA may not
affect a technical compliance of Section 50 of the Act on taking a complete and
circumspect view of the materials brought on record, but the same, in our
opinion, affect the credibility of the documentary evidence and the statements
of the official witnesses, namely, PW1 and PW2. If origin of principle has not
been followed and discrepancies and contradictions have occurred in the
statements of PW1 and PW2 the same would cause doubt on the credibility of
prosecution case and their claim of upholding procedure established by law in
effecting recovery.
CONCLUSION Our
aforementioned findings may be summarized as follows :
1. The provisions of
Sections 35 and 54 are not ultra vires the Constitution of India.
2. However,
procedural requirements laid down therein are required to be strictly complied
with.
3. There are a large
number of discrepancies in the treatment and disposal of the physical evidence.
There are contradictions in the 79 statements of official witnesses.
Non-examination of independent witnesses and the nature of confession and the
circumstances of the recording of such confession do not lead to the conclusion
of the appellant's guilt.
4. Finding on the
discrepancies although if individually examined may not be fatal to the case of
the prosecution but if cumulative view of the scenario is taken, the
prosecution's case must be held to be lacking in credibility.
5. The fact of
recovery has not been proved beyond all reasonable doubt which is required to
be established before the doctrine of reverse burden is applied. Recoveries
have not been made as per the procedure established by law.
6. The investigation
of the case was not fair.
We, therefore, are of
the opinion that the impugned judgment cannot be sustained which is set aside
accordingly.
Before, however,
parting with this judgment, we would like to place emphasis on the necessity of
disposal of such cases as quickly as possible.
The High Courts
should be well advised to device ways and means for 80 stopping recurrence of
such a case where a person undergoes entire sentence before he gets an
opportunity of hearing before this Court.
The appeal is allowed
with the aforementioned observations.
...............................J.
[S.B. Sinha]
................................J.
[V.S. Sirpurkar]
New
Delhi;
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