Hasan Ismail Dalvi vs Narcotic Control Bureau & Anr.
2001 Latest Caselaw 201 Bom

JUDGMENT

N. V. Dabholkar, J.

1. Three appellants were tried vide N.D.P.S. Special Case No. 417 of 1991 in the Court of Special Judge for Greater Bombay. By the Judgment delivered on 18th, 19th and 26th of November of 1996, learned Special Judge held accused No. 1 guilty for the offences punishable under Sections 21, 23. 28 read with 29 of the N.D.P.S. Act and 120-B of the I.P.C., so also Section 135(1)(a)(ii) of the Customs Act, 1962 and Section 13(2) of the F.E.R.A.Act. He is sentenced to suffer rigorous imprisonment for 13 years and fine of Rs. 2,000, in default, rigorous imprisonment for two years, on the first count and rigorous imprisonment for one year on the second count.

Accused Nos. 2 and 3 are held guilty for the identical charges, except under Section 13(2) of the F.E.R.A. Act and each of them is sentenced to suffer rigorous imprisonment for 10 years, fine of Rs. 1,00,000/- in default rigorous imprisonment for one year.

Accused Nos. 2 and 3 are separately sentenced to suffer rigorous imprisonment fpr one year for the offence punishable under Section 135(1)(a)(ii) of the Customs Act. 1962.

Substantive sentences of all the accused are directed to run concurrently and they are granted set off for under trial detention period.

The judgment, conviction and sentence is being challenged by the three accused by three Independent appeals.

Henceforth, the appellants are being referred by their status as before the Trial Court, for the sake by brevity.

2. According to prosecution story, the Investigating Officer -Superintendent Shri Sawant (P.W. 5) on 11.3.1991 received reliable information that Charles Willey, a British National was likely to travel by flight SR 199 of Swiss Air departing Mumbai on 12.3.1991 at 0135 Hrs. with heroin in his possession. Shri Sawant typed the information and placed it before the Deputy Director Shri Kakkar with suggestion to intercept the suspect at Sahar International Airport. Shri Kakkar called N.C.B. Officials including the Assistant Director Shri Rohatgi, Intelligence Officers S/Shri Gujariya and Naik. After discussion the officers were instructed about interception of the passenger.

The party led by Shri Sawant and consisting S/Shri Gujaria and Naik reached International Airport at Departure Customs Counter at midnight of 11 and 12th of March, 1991. Shri Gujaria, on instructions, procured two panchas, namely, Kiran kumar and Vijay. Shri Naik confirmed by checking the manifest that suspect passenger was likely to board the flight.

After sometime Shri Gujaria intercepted accused No. 1, after customs clearance. The team members disclosed their identity and demanded travel documents from accused No. 1. He produced passport, Swiss air ticket, boarding pass and xerox copy of the application for extension of visa. The documents confirmed that the passenger intercepted was the suspect under information. A baggage claim tag was discovered, affixed to the air ticket.

Accused No. 1 was taken to baggage examination hall, where he identified a black carry all bag as his baggage. The baggage identification tag tucked to the baggage tallied with the baggage claim tag found with the air ticket on the basis of serial number. Accused No. 1 was intimated about the information and that he was to be searched on suspicion for possession of narcotics. He was also apprised of his right under Section 50 of the Act. The accused declined the offer, took out a key from his trouser pocket and opened the lock on the bag identified by him. The bag contained some personal effects and when emptied, it was heavy at the bottom. On close examination of the bottom, it was noticed that it had a fiat and a package was affixed to the flap with the help of adhesive tape. Inside the carbon paper package 2 polythene bags were found which contained brown powder. The powder tested positive for heroin on the field identification kit. The contraband was taken to post office and weighed. Each bag weighed 525 grams.

Powder from both the bags was emptied in third polythene bag, mixed and then three samples of 5gms, each were taken in polythene bags, which were heat sealed. Three samples were then kept in separate envelopes and sealed and marked C/I. C/II and C/III. Remaining major bulk, after heat sealing polythene bag, was put in a cardboard box, which was duly tied, labelled and sealed. By putting trouser, kurta, key and lock in it, carry all bag was kept in a paper envelope and then in a cardboard carton, which was closed with the adhesive tape and sealed. All the articles were labelled with labels signed by panchas, accused No. 1 and the officer.

Nothing Incrementing was recovered in search of a briefcase in the custody of accused No. 1. But on personal search 195 Sterling Pounds,

100 US Dollars and three half cut currency notes were recovered. Three half cut currency notes were of American, Dutch and Indian currency i.e. 5 US Dollars. 10 Guilden and Rs. 10/- denominations respectively.

The travel documents recovered from the accused were also seized after marking them as K-I to K-V and obtaining signatures of panchas, N.C.B. Officer and accused No. 1 on those, except on the passport.

Accused and seized articles were brought to N.C.B. office and led before the Assistant Director Shri Rohatgi. Shri Naik was directed to investigate further into the matter.

It appears that Shri Sawant recorded statements of accused Charles under Section 67 of the N.D.P.S. Act read with Section 108 of the Customs Act on 12lh, 13th and 14th of March, 1991 (Exhibits 66, 67 and 68) and also on 14.4.1991 (Exhibit 70).

The Intelligence Officer Shri Naik recorded the statements of accused No. 2 Hassan twice on 14.3.1991 (Exhibits 39 and 40) and again on 30.7.1991. He also recorded statements of accused No. 3 (Exhibits 46, 48 and 50) on 20.3.1991, 21.3.1991 and 24.4.1991.

According to prosecution, the statements revealed that accused Nos. 2 and 3 had acted as interpreter and taxi driver respectively for accused No. 1 and also otherwise rendered assistance in drug trafficking.

Another Intelligence Officer Ramesh Ramnathan, at the instructions of Assistant Director, on 12.3.1991, between 6 to 8 p.m., searched the premises owned by one Shri Khan, being FlatNo. 18, Transworld Terrace. Fokland Road Bombay and seized documents which contain envelope, photographs, vehicle insurance receipt, report and its xerox copy. On 20.3.1991 at between 1430 Hrs. to 1630 Mrs. he searched flat C/2, II floor. Saifi Chambers, Khandia Street, in presence of accused No. 2, at the instructions of Shri Sawant. This was said to be flat of accused No. 2 and a telephone diary, electricity bill, visiting card of super trading, one photograph and passport of accused No. 2 were seized. After this search and seizure, accused No. 2 was taken to N.C.B. office with the searching party.

On 20.3.1991 at the instructions of Shri Sawant, Shri Ramnathan searched premises G-16, I Floor, Gaothan, II Lane, Juhu and also KCW 1/2/3, Sea Shore, behind Palm Beach, Juhu. between 1500-1600 Hrs. and 1700-1730 Hrs. respectively. First premises were occupied by one Mrs. Reeta and the second by one Mr. Neil Creado. Few documents were recovered from each of the premises. It also appears that at all four premises searched, there were telephone connections.

On 13.3.1991 Shri Naik deposited one sample to Deputy Chief Chemist and another sample was sent to Forensic Science Laboratory on the same day. The positive reports of the analysis were received in due course of time.

After obtaining the sanction to prosecute under section 137(1) of the Customs Act. 1962 dated 25.5.1991 Shri Naik launched prosecution by complaint filed in the Special Court on 30.5.1991.

3. The prosecution has relied upon oral evidence of complainant who also recorded statements of accused Nos. 2 and 3 - Intelligence Officer Naik (P.W.3). Superintendent of Police Shri Sawant (P.W. 5), under whose supervision accused No. 1 was intercepted; Intelligence Officer Ramesh

(P.W.2) who carried searches of premises and Intelligence Officer Mohan (P.W. 1), who was raiding party member. The panch witness Kirankumar (P.W. 4) is examined at Exhibit 59, and Assistant Chemical Analyser Shri Kadam (P.W.6) is examined at Exhibit 72.

The prosecution also relies upon the statements of all three accused recorded on more than one occasions in each case, several panchanamas and reports of Analysers.

4. Relying upon the admission by accused No. 1 during his statement under Section 313 of the Code of Criminal Procedure, supported by the travel documents, learned Judge held that interception of accused No. 1 as alleged stands proved beyond reasonable doubts. Relying upon the oral evidence of NCB Officials and panch witness, supported by bag Identification tag verification, the learned Judge believed the prosecution story that accused No. 1 identified baggage and same was taken search of. In spite of some discrepancies in the oral evidence about it. In the light of statement to that effect in the panchanama, the learned Judge has accepted the prosecution story that accused opened the bag with a key taken out from his trouser pocket. The learned Judge also believed the story of recovery of contraband from the bag identified by the accused on the strength of oral evidence supported by the contents in the panchanama Exhibit 10.

In the light of state in which the reserved sample and bulk contraband were produced before the Trial Court, the learned Judge did not find any substance in the challenge of defence to the process of preparing and sealing of samples.

The learned Judge refused to disbelieve the panch witness, merely because he had acted as a panch on earlier occasions, in view of the fact that he is an employee of airlines and readily available at the airport. Considering the oral evidence of Chemical Analyser, learned Judge found same to be reliable and also capable of lending some support to the fact that sample reached the Laboratory in a sealed condition.

On assessing the evidence in the form of certificate issued by Special Metropolitan Magistrate (Exhibit 51), about pre-trial disposal and destruction certificate (Exhibit 52), the learned Judge felt that, the prosecution evidence regarding samples not being tampered till those were analysed, was strengthened.

As far as the statements of accused No. 1 Exhibits 66, 67, 68 and 70 learned Judge found those to be reliable. This is because, the statements are in the handwriting of accused himself. Apart from incriminating material, these also contain the personal details (details, which could not have been known to anybody else) there were some details, such as taxi number and name of the taxi driver, which led to further investigation and confirmation of correctness of statement of accused No. 1.

The statements of accused No. 2 recorded at Exhibits 39 to 41 are also believed by the learned Judge to be voluntary statements, because those are also in the handwriting of accused No. 2 and the contents indicated that accused had tried to repel the claim of N.C.B. officials that his role was much more than that of interpreter between the drug traffickers. According to the learned Judge this indicated the liberty enjoyed by accused No. 2 during the course of recording his statement.

In view of the fact brought on record by the defence during the course of cross-examination of P.W.3 Naik, that accused No. 3 was permitted to leave N.C.B. office during the time gaps between the statements, learned Judge felt that there was nothing suspicious about the statement being volunteered, although it was recorded in the handwriting of N.C.B. Officials and not in the language well-understood by accused No. 3 i.e. Hindi.

The learned Judge also found that statements inter se provide corroboration of involvement of three accused persons in the offence. The learned Judge, therefore, was not inclined to accept the defence theory of extracting the statements by torture.

In the light of information recorded at Exhibit 62 and deposition of Superintendent Shri Sawant, the arguments on behalf of accused No. 1 that Section 42 of the N.D.P.S. Act was not complied witb. because name of the informant was not disclosed and Exhibit 62 also contained the suggestion that the suspect may be intercepted at the airport, are rejected by the learned Judge. The learned Judge observed that recording of the information under section 42 can be treated as abundant precaution taken by the prosecution. He is of the view that since search and seizure was effected at the public place i.e. airport and Section 43 of the Act does not prescribe recording of such information, compliance of Section 42 was not necessary.

Relying upon the Full Bench judgment of this High Court in Ebanezer Adebaya @ Monday Obtor v. State of Maharshtra, the learned Judge observed that since the contraband was recovered from the baggage that was already checked in by accused No. 1, compliance of section 50 not necessary. The argument of defence, that ultimately baggage was opened by accused with a key from his pocket and hence it must be said that when searched, search of the baggage was the search of the person of accused; was, therefore, rejected.

The learned Judge has also observed that the grounds of arrest were informed to accused Nos. 1 and 3 although were not informed to accused No. 2, but that did not cause prejudice to his defence.

In view of the above reasons and observations, the learned Judge arrived at a finding of guilt against all three appellants and imposed conviction and sentences as described earlier.

5. Advocate Mr. Merchant representing appellant/original accused No. 1 assailed the impugned Judgment by pleading that there is no compliance of mandatory provisions of N.D.P.S. Act. 1985 viz. Section 42(2) as also Section 50. He also claimed that there is also no proper compliance of requirements of Sections 55 and 57 of the said Act. Accordingto Advocate Mr. Merchant, the Trial Court could not have recorded the finding of guilty in view of the such non-compliance.

So far as the statements recorded under Section 67 of the N.D.P.S. Act read with Section 108 of the Customs Act, Mr. Merchant urged that those are obtained under duress and while accused was wrongfully detained. Those are also recorded without warning the accused that the statement was likely to be used as evidence against him. It is therefore claimed that the statements are neither admissible in evidence nor trustworthy.

Since the case as against Accused Nos. 2 and 3 is mainly founded on the statements of three accused, as recorded under Section 67 of the N.D.P.S. Act and Section 108 of the Customs Act, learned Counsel Mrs. Ponda and Mr. Hingorani have attacked those statements on similar grounds as pleaded by Mr. Rizvi. It is also added that due to warning before recording statements to the effect that in case the statements were found to be false, the accused were liable to be prosecuted for the offence under Section 193 of the I.P.C., the Statements could not be said to be voluntary. Mrs. Ponda pointed out that 3rd statement of her client was obtained., under promise of making him an accomplice witness and was thus involuntary. Mr. Hingorani in addition also pleaded that there are indications in the statement of his client that the statements are involuntary.

Thedetails of the arguments can be dealt with while dealing with each ground.

6. Compliance of section 50 of the N.D.P.S. Act :-

This contention is raised only in support of appeal preferred by original Accused No. 1 Charles Willey. It is the claim of prosecution that after P.W. 1 Mohan Gujaria intercepted Accused No. 1 on his custom clearance and after verifying his identity on the basis of travel documents, such as passport and air ticket, he was taken to baggage examination hall, where he identified a black carry-all-bag as his baggage. The prosecution also claims that the baggage Identification tag attached to the baggage tallied in serial number with the baggage claim tag found with the air ticket of accused No.1. According to prosecution accused took out the key from his trouser pocket and opened the lock on the bag identified by him.

It was contended by Advocate Mr. Rizvi that although, according to prosecution story, initially the baggage was in the identification hall, when it was opened, it was in the custody of accused No. 1 and therefore, this was a case covered by para 5(b) as carved out in the Full Bench Judgment of this High Court in Ebanzzar Adebaya v. B. S. Rawat, Collector of Customs, and therefore, it was, in fact, search of person of accused and the compliance of requirements of Section 50(1) of the N.D.P.S. Act was mandatory.

Having gone through the prosecution evidence it can be seen that P.W. 1 Mohan Gujaria, P.W. 3 Prashant Naik and P.W. 5 Superintendent Sawant were the members of raiding party, so far as department is concerned. However, the prosecution has chosen not to obtain any details regarding search and seizure of Accused No. 1 from complainant Prashant Naik during his deposition. P.W. 4 Kirankumar, Chief Traffic Assistant at Sahar International Airport was procured as panch witness.

On reference to deposition of these witnesses, nobody except Mr. Sawant have claimed that the accused was apprised of his right under Section 50 to be searched in the presence of a Magistrate or a Gazetted Officer. However, Mr. Sawant has deposed that he informed Accused No. 1 of the information, which he had received and after disclosing identity of all N.C.B, Officers, Accused No. 1 was told that they wanted to search

his person and baggage on the suspicion of possession of narcotics. Mr. Sawant also states that he offered to Accused No. 1 "if the wished such search could be taken before me or any other Gazetted Officer or a Magistrate".

In absence of any such claim in the depositions of remaining three members of raiding party, contemporary document of the incident i.e., panchnama drawn at the time of search and seizure, which is at Exh. 10, was referred in order to ascertain reliability of the claim of Superintendant Sawant. Unfortunately, panchnama does not record any such appraisal to Accused No. 1 by Superintendent Sawanl. The deposition of Mr. Sawant to the effect that he had apprised accused of his right under Section 50 to be searched in presence of a Gazetted Officer or a Magistrate, will have therefore be ignored, being an improvement.

Otherwise also, the appraisal as stated by Mr. Sawant whether could have been sufficient to comply Section 50 or it was an attempt to discourage accused from exercising the right, can be a debatable issue. This is because Mr. Sawant has put himself first in the order of options, which accused could exercise, as can be seen from the manner of appraisal quoted in the earlier para.

However, it is the claim of the prosecution that since the contraband was recovered from the baggage that was already checked in by the accused, Section 50 of the Act is not at all attracted and for the purpose learned A.P.P., Ms. Kejriwal has also placed reliance upon Full Bench Judgment in the matter of Ebariezer Adebaya (supra).

While considering the interpretation of clause "to search any person" the Full Bench of this High Court formulated in para 5 of its judgment the questions required to be considered as follow :-

However, the question which requires consideration is what meaning can be assigned to the phrase "to search any person" used in Section 50 of the N.D.P.S. Act, whether "to search any person" means :-

(a) search of articles on the person or body of the person ;

(b) would include search of articles in immediate possession such as bag and other luggage carried by him or in physical possession of the person to be searched;

OR

(c) would include search of bag or luggage which are presumed to be in possession of the person even though it may be lying in a house, or railway compartment or at the airport ;

AND

(d) whether application of Section 50 can be extended to a case of search of a place, conveyance or an house, if the accused is physically present at the time of search.

After taking into consideration plethora of reported cases including the decision of Hon'ble the Apex Court in Ali Mustafa Abdul Rahman Moosa v. State of Kerala, the Full Bench recorded that the personal search would be confined to clauses (a) and (b), but it would not include and cannot be extended to clauses (c) and (d).

In the present matter the appellant and the prosecution have claimed the case of appellant to be falling in the category (b) and (c) respectively.

Clause (b) as drafted by Full Bench Includes two sub-clauses :-

(i) articles in immediate possession such as bag or other luggage carried by him

(ii) articles in physical possession of the person to be searched.

The phrase "immediate possession" used in clause (b) is illustrated by Full Bench by extension "such as bag or other luggage carried by him". Immediate possession as contemplated in this clause is synonymous to physical possession as referred in the latter half. An article cannot be carried by a person without involving bodily contact or an activity with the article. Therefore, extension "carried by him" suffixed to "immediate possession" makes that clause synonymous to "physical possession". An article detached from the person of accused, therefore, would not come within the ambit of clause (b).

Such an interpretation stands confirmed on reference to clause (c) wherein Full Bench has included articles lying in a house or railway compartment or at the airport, as the articles presumed to be in possession of the person, but, declined to rule that Section 50 would be attracted for search of such articles.

In the present matter, baggage was lying in the identification hall. Merely because it was placed before accused for opening the lock by Investigating Officer, clause (b) as drafted by the Full Bench would not be attracted.

It must therefore be said that Section 50 has no application so far as search of the baggage of accused No. 1 and seizure of contraband from the same. Finding of learned Trial Court to that effect is fully justified. The prosecution, therefore, cannot suffer for want of compliance of Section 50 of the Act.

7. Regarding balance of Section 42 of the N.D.P.S., Act, 1985.

Advocate Shri Merchant has referred to the information received by Superintendent Shri Sawant and recorded by him which is at Exhibit 62, as also deposition of Shri Sawant (P.W. 5 -Exh. 61).

On reference to Exh. 62 Shri Merchant claimed that only opening part that "a reliable information received in the office indicates that one Mr. Charles Willey, British National is likely to carry a quantity of heroin" is the information received. The latter half of the first paragraph in Exhibit 62 is personal knowledge of Shri Sawant, since he claims that he developed the information, whereupon further details were known that said Charles was expected to travel by Flight No. SR-199 of Swiss Air, estimated time of departure 0135 Hrs. of 12.3.1991.

On the basis of cryptic text that is available in Exhibit 62 i.e. further intelligence collected and developed, it is difficult to accept the proposition of Shri Merchant that latter half of the information was personal knowledge of Shri Sawant. Be that as it may. On reference to Section 42(1) it is not possible to read in between the lines that the officer is also required to reduce into writing his personal knowledge, on the basis of which he reasonably believes that any narcotic drugs and psychotropic substances in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence about commission of such offence is kept or concealed in any

building etc. It is only when information is received from a third person, the officer receiving the information is obliged to take down the same in writing.

In case the argument of Shri Merchant is to be accepted and latter half from para 1 of Exh. 62 is to be believed as personal knowledge of Shri Sawant, it would not require any compliance either of Sec. 42(1) and (2) of the N.D.P.S. Act, 1985. However, since it is not the case ofShri Sawant either in Exh. 62 or in his deposition that further intelligence was collected by him personally, it must be presumed that he collected it through others, may be departmental subordinates. Therefore, initial information as well as additional intelligence collected, attract provisions of section 42(1) and (2) and those are required to be complied with in relation to both parts of the information.

Shri Merchant has also taken an exception to para 2 of Exh. 62, in fact Shri Sawant during the course of his deposition has explained that this was his suggestion, put up to his superior, while placing the information before him. It is not possible to read anything adverse to the prosecution merely because Shri Sawant so incorporated his submission, appending to the information recorded. It may be taking into consideration that section 42(1) has not prescribed any particular register, format or manner in which the information received from any source should be recorded. Therefore the additional para suggesting interception of the suspect at International Airport merely because the same is added to the information recorded, causes no infraction of Section 42.

In fact, this additional paragraph incorporating proposed action lends support to the deposition of Shri Sawant that he had placed this information before his superior I.e. Deputy Director. Narcotics Cell Shri R. N. Kakkar.

It is not the claim of Shri Sawant that he had prepared copies of information and sent those to his immediate superior. There need not be controversy over the statement of Shri Merchant Advocate that Deputy Director Shri Kakkar was not the immediate superior of Shri Sawant. It has come on record that one Shri Rohatgi was Assistant Director and report under section 57 of the Act. after search and seizure, was submitted to Shri Rohatgi. The contention of the Appellant that Section 42(2) is not complied, because copies were not submitted to immediate superior officer i.e. Assistant Director Shri Rohatgi deserves to be considered.

On reference to prosecution evidence P.W. 1 Mohan Gujaria has joined the raiding party directly at Airport and therefore offers no evidence regarding the manner in which information was received, its recording and further process about the same. As already referred above. P.W. 3 Prashant Naik, inspite of being a member of raiding party has chosen to furnish evidence only recording the investigation after search of and seizure from accused No. 1. Panch witness Kiran was called only at the time of interception and therefore has no knowledge as to how information was received, recorded and processed.

Shri Sawant is the officer who received, recorded and processed the Information. He states that after preparing Exh. 62 he initialled the same with date, time and place before Shri Kakkar, Dy. Director who has put his initials on the same after scoring the endorsement "DD" in testimony

of having noted the same. Thus it is not the claim of Shri Sawant that copy of information was tendered to his immediate superior official i.e. Asstt. Director Shri Rohatgi.

The learned A.P.P., has tried to gain ground by relying upon quite a few reported Judgments. The judgments can be considered in two parts :-

In Kalema Tumba v. N.C.B., decided on 16.1.1998. Division Bench of this High Court observed as under :-

"...... when the intelligence information is received in immediate presence of superior officer and there is discussion with him about the Interception of the accused, we have no hesitation in holding that merely because the information has not been sent to superior officer, it cannot be held that Section 42 is violated."

Receipt of information in presence of superior officer and discussion about the same with him was thus felt to he substantial compliance of Section 42 by this Court.

In a recent decision another Division Bench of this Court has taken divergent view. In Ganesh Lingam v. State of Maharashtra, decided on 15.3.2000, it was observed :

"Section 42(2) of the N.D.P.S. Act, 1985 casts a mandatory obligation on the officer, who has recorded the information in writing to send its copy forthwith to the immediate superior. Where the Legislature in all its wisdom enacts a provision, it is with the avowed object that it should be enforced in the manner Intended by it . It is manifest from a perusal of Section 42(2) that the legislative intent is that the officer recording the information in writing, received under Section 42(1) of the N.D.P.S. Act, should forthwith send its copy to the immediate superior official. That imperative would not be discharged, if orally that Information is conveyed by him to his official superior."

Although in the reported case information was said to have been communicated to Immediate superior official orally, fact remains that the situation was held to be infraction of Section 42(2) because the requirement was not compelled with in the manner intended by the Legislature.

In view of the observations in latter judicial pronouncement, reliance by learned A.P.P. on Kalema Tumba's case (supra) is not Justifiable and it must be said that by not submitting a copy of information to Asstt. Director Shri Sawant has failed to comply Section 42(2).

Another set of judicial pronouncements is relied upon by learned A.P.P. and in all these matters, it has been held that, when the search and seizure is in a public place, procedure under Section 42(2) of the Act is not required to be followed.

In Ashok v. State of Maharashtra, the accused were accosted near the telephone pole by the side of a primary school, and in the judgment delivered on 1.9.1999, a Division Bench of this Court at Nagpur, observed that since the accused were found near primary school, Ganeshpeth, which was a public place, the provision of Section 43 and not of Section 42 was attracted and Section 43 does not contemplate recording of the

information received or submission of a copy thereof to immediate superior.

In Duraiswami v. State of Maharashtra, decided on 8.10.1999 by another Division Bench of this Court, relying upon observations of the Supreme Court in Sayar Puri v. State of Rajasthan held that since the raid was on the public place, procedure under Section 42(2) was not required to be followed.

Similar view was recorded by Division Bench of this Court in pronouncement dated 15.12.99 in the matter of Loonguram v. State of Maharashtra, All these decisions apparently follow the ratio laid down by the Hon'ble Apex Court in Sayar Puri's case (supra).

In view of decision of Hon'ble the Apex Court by a Bench of three Judges decided on Abdul Mansoori v. State of Gujarat, argument of learned A.P.P. by placing reliance upon the earlier judgments of Bombay High Court as well as Apex Court, cannot be sustained. In this matter. Hon'ble the Apex Court has observed :-

"Police Officer admitted that he proceeded on getting prior information from a constable and the information was precisely one falling within purview of Section 42 of the Act and not Section 43 as per which he was not obliged to take down the Information and hence, cannot wriggle out on the conditions stipulated in the said sub-section, and there was non-compliance of section 42 of the Act."

Although there in non-compliance of Section 42(2) of the Act, that by itself will not entail acquittal of Accused. In Abdul Rashid Ibrahim Mansori's case, decided by Division Bench of 3 Judges, Hon'ble the Apex Court, while accepting the contention of learned Counsel for the State that non-compliance with Section 42 cannot be visited with greater consequences than what has been held by the Constitution Bench of that Court, regarding non-compliance with the conditions in Section 50 of the Act, observed that "we do not think that a different approach is warranted regarding non-compliance with Section 42 also". It was further observed:-

"The action of the officer who claims to have exercised it on the strength of such unrecorded information, could become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused."

8. The prosecution has relied upon the statements of all three accused persons recorded under Section 67 of the N.D.P.S. Act, so far as Accused Nos. 2 and 3 are concerned and under Section 67 of the N.D.P.S. Act read with Section 108 of the Customs Act so far as Accused No. 1 is concerned. The Statements of Accused No. 1 were recorded by Superintendent Shri Sawant, whereas the statements of Accused Nos. 2 and 3 were recorded by Intelligence Officer Shri Prashant Naik. The appellants have challenged the admissibility as also the reliability of these statements, which also contain the confessional statements.

It is contended by the appellants that they were continuously detained for the purpose of recording their statements, their arrests were shown on deferred date and those were extracted under compulsion in the form

of threat, inducement and promise etc. According to appellants the statements are therefore hit by Article 20(3) of the Constitution of India. It is also contended that before recording any of the statements, recording officer does not seem to have cautioned any of the accused persons that he is not bound to make a statement, and if he makes a statement the same is likely to be used as evidence against him. It is therefore pleaded that the statements should be deemed to have been obtained under compulsion and should be held inadmissible and unreliable.

Advocate Shri Merchant arguing for Accused No. 1 has placed reliance on couple of judgments of this High Court recorded in bail applications, for a limited purpose of illustrating as to when the accused can be said to be arrested. In the reported matter Suaibo Ibow Cassama v. Union of India, the accused was intercepted on 2nd November, 1991 at 5.30 a.m. and was produced before the Magistrate only on 4th November, 1991. It was observed :-

"There is also no dispute before me that the restrictions imposed on the petitioner were total ever since he was apprehended at the airport in early hours of 2nd November, 1991. Undoubtedly, the petitioner was not allowed to go out of clutches of the Customs Officers from 5.30 a.m. on 2nd November, 1991 and therefore it is impossible to say that the petitioner was not arrested at 5.30 a.m. on 2nd November, 1991."

It was held that there was no doubt that the arrest of the petitioner was complete by 5.30 a.m. on 2nd November, 1991.

In another judgment in Ashak Hussain v. The Assistant Collector of Customs (P), the applicants were detained from midnight of 20th July, 1989 to 5.20 p.m. of 21st July, 1989 for 17 hours. Their arrests were so recorded that their production before the Magistrate was within 24 hours stipulated by Article 22(2) of the Constitution of India. It was observed :-

"It is thus clear that arrest being a restraint on the personal liberty, it is complete when such restraint by an authority, commences. Whether a person is arrested or not, does not depend on the legality of the act. It is enough if an authority clothed with the power to arrest, actually imposes the restraint by physical act or words. Whether a person is arrested depends on whether he has been deprived of his personal liberty to go where he pleases. It stands to reason, therefore, that what label the Investigating Officer affixes to his act of restraint is irrelevant ....... The arrest commences with the restraint placed on the liberty of the accused not with the time of "arrest" recorded by the Arresting Officers."

In the matter before us statements of Accused No. 1 were recorded on 12th, 13th and 14th March, 1991 (Exhibits 66, 67 and 68). One more statement Exh. 70 is recorded on 16th April, 1991 after bringing him with the permission of the Court of Sessions. Admittedly, Accused No. 1 was intercepted on 12th March, 1991 at 01.35 hours. As can be seen from Exh. 69 remand application presented before the Additional Chief Metropolitan Magistrate on 14th March, 1991, he is shown to have been arrested only on 14th March, 1991 at 11.30 hours.

The Intelligence Officer Shri Naik has recorded statements of Accused No.2 Hasan on 13th March, 14th March and 30th July, 1991. The last one

is recorded while he was in the custody of Court, by obtaining permission. In his cross-examination by Accused No. 2, it is evident that Accused No. 2 was brought to the office of N.C.B. on 13.3.1991 immediately after completion of search of his house and he was at the N.C.B. office till his arrest. The contents of Exh. 40 that Hassan was given food, soft drinks and was allowed to sleep at night, confirm that he was not allowed to go home. In remand report Exh. 32, he is shown to be arrested on 14thMarch 1991 at 18.30 hours.

Since both the accused were in the custody of N.C.B. Officers respectively from 12th March, 1991 and 13th March, 1991 and were detained at N.C.B. Office, it must be said that they were arrested and were accused persons in the case since 12th and 13th March, respectively. Merely because on the record their arrests are shown on 14th March, 1991 it cannot be said that they were not accused persons prior to that.

So far as accused No. 3 is concerned, although his statements are recorded on 20th March, 1991 and 21st March, 1991 (Exhibits 46 and 48) and he is entrusted to Azad Maidan Police Station on 21st March 1991, Shri Naik during the cross-examination on behalf of Accused No. 3 has stated that Accused No. 3 was not confined to the office during the time gap between two statements and he was allowed to leave N.C.B. Office. Consequently, Accused No. 3 will have to be said to have been arrested only on 21st March, 1991.

The statements of the accused persons recorded by N.C.B. Officials are challenged by contending that the continued detention is an indication that those must have been obtained by compulsion.

So far as confessional statements of all 3 accused persons are concerned, it has been broadly argued that those are hit by Article 20(3) of the Constitution of India. Article 20(3) provides a protection against self-incrimination. As discussed by Hon'ble the Apex Court, after considering the history of development of the principle and its incorporation in various statutes, in M. P. Sharma v. Satish Chandra, which was relied upon by the learned Counsel for accused No. 1, it was observed as follows :

"In view of above background, there is no inherent reason to construe the ambit of this fundamental right as comprising a very wide range. Nor would it be legitimate to confine it to the barely literal meaning of the words used, since it is a recognised doctrine that when appropriate a constitutional provision has to be liberally construed, so as to advance the intendment thereof and to prevent its circumvention,"

In reported case, the argument before the Hon'ble the Supreme Court was that, compelled production of incriminating documents from the possession of accused is compelling an accused to be a witness against himself. It was observed :-

"The phrase used in Article 20(3) is "to be a witness" and not "to appear as a witness". It follows that the protection afforded to an accused insofar as it related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room, but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution."

Considering Article 20(3) of the Constitution of India, in order that protection against self incrimination should come to rescue a person, following three ingredients are required to be satisfied :

(1) Accusation of an offence against such person ;

(2) Compulsion to provide evidence ;

(3) Giving out self incriminating material, relating to accusations levelled against him, either in the form of oral testimony or in the form of a statement recorded or in the form of document produced.

The protection that is afforded by Article 20(3) of the Constitution is against extraction of confession or incriminating material from the accused under compulsion. The compulsion can be of various nature and forms. The nature and form of compulsion is, therefore, embodied in Section 24 of the Indian Evidence Act, which makes confessions caused by inducement, threat or promise to be irrelevant in criminal proceedings.

The statements recorded by the N.C.B. officials of all 3 accused persons, therefore, shall be inadmissible, only if, those are obtained under compulsion in any of the forms as prescribed in Section 24 of the Indian Evidence Act i.e. under inducement, threat or promise.

In Harban Singh v. State of Maharashtra, confessional statements recorded by an officer of customs under the Customs Act were held admissible in evidence and it was also held that those are not hit by Section 25 of the Evidence Act or Article 20(3) of the Constitution of India.

It must be said and this would apply to first statement of all 3 accused; proposition of the appellants that continued detention Itself amounts to duress and, therefore, statements obtained under such duress are inadmissible, would not be applicable to first statement of any of the accused.

Last statement of each of the accused is recorded after a yawning time gap. Statement (Exh. 70) of accused No. 1, Exhibit 41 of accused No. 2 and Exhibit 50 of accused No. 3 are recorded on 16.4.1991, 30.7.1991, and 24.4.1991. All these statements are recorded after obtaining the presence of accused persons with the permission of Special Judge (referred as Sessions Court in the statements). It must be said that this circumstance by itself is a guarantee, accused were in Court custody when these were recorded; that statements were not obtained under any compulsion.

9. Let us consider the statements of three accused one by one :

So far as accused No. 2 - Hasan is concerned, his statements are recorded on 13.3.1991; 14.3.1991 and on 30.7.1991 (Exhibits 39 to41). The first and the third statement have some assurance as discussed above, about those being not under duress or compulsion.

On reference to Exhibit 32, the first application for remand presented before the Court of Additional Chief Metropolitan Magistrate. Bombay, it can be seen that accused Hasan complained of ill treatment and of injuries on his ear and shoulder. He claimed that his spectacles were broken showed the spectacles of which one side ear-rest was missing. The Magistrate has recorded that there are no visible injuries. Mrs. Ponda, Advocate has objected to this endorsement by Magistrate injuries. According to her, the Magistrate without asking accused to remove his

shirt could not have recorded that there were no visible injuries. The circumstances can be viewed from another angle. If accused complained of injury to his ear and there was no visible injury, the Magistrate may not insist for removal of the shirt for ascertaining that there was shoulder injury. But the fact remains that accused No. 2 Hasan had complained of illtreatment at the first opportunity.

On reference to statement u/s 313 of the Cr.P.C. of accused No. 2, it can be seen that by question Nos. 58 to 62, details of statements (Exhs. 39, 40 and 41) were put up to Hasan so that he can explain about those. Although he claimed that statements were not voluntary, he did so by formal words and did not add that he was tortured or man-handled.

Contention of Advocate Mrs. Ponda that third statement was obtained under promise, appears justified to some extent. On reference to Exhibit 41, the accused Hasan has assured that he is willing to work as a witness and reiterate the facts given in his earlier statement. He prayed for granting him pardon. The statement indicates that Advocate of accused had applied u/s 306 of the Cr.P.C., 1973. for grant of pardon. This statement whether obtained by promise or otherwise, eventually contains no incriminating material either against accused No. 2 himself or against accused No. 1.

In fact, having gone through all three statements of accused No. 2 Hasan together, it is difficult to make out any incriminating material much less such material, which is relevant for the purpose of present case.

On considering all three statements together, it can be seen that accused Hasan admits to have acted as interpreter/translator for conversation between accused No. 1 Charles and one Azizkhan, because Azizkhan could not speak English. On one occasion, he had seen them going away in a taxi. There was also an occasion when accused No. 1 was required to contact him for getting message of Azizkhan. He has admitted that while translating he could realise that there was discussion about heroin, its price etc. Yet it is his claim that he was only an interpreter. Accused Nos. 2 and 3 are charged with the help of Section 29 of the N.D.P.S. Act r/w Section 120(B) of the I.P.C. In fact, it is difficult to appreciate propriety of adding Section 120(B) of the I.P.C. when the special statute provides punishment for abatement as well as for being a party to a criminal conspiracy to commit an offence punishable under the Act, irrespective of the fact whether the offence be or be not committed in consequence of such abetment or in pursuance of such conspiracy.

Offence of criminal conspiracy requires an agreement to commit an offence. Considering all three statements of accused No. 2 Hasan together, it is difficult to perceive, Hasan being part and parcel of an agreement. If any, between accused No. 1 and Azizkhan for the purpose of drug trafficking.

Abetment as defined u/s 107 of the I.P.C., in its Explanation (2) incorporates anything done in order to facilitate the commission of an act (which is offence) either prior to or at the lime of commission of an act, as aid for doing that act. However, the Hon'ble the Supreme Court has observed in Shri Ram and Anr. v. State of U.P., as follows :

"In order to constitute abetment, the abettor must be shown to have intentionaliu aided the commission of the crime. Mere proof that the crime charged could not have been committed without interposition of the alleged abettor is not enough compliance with the requirement of Section 117 of the I.P.C.."

As per statement of accused No. 2, he was called by Azizkhan when accused No. 1 was already at his place. Even referring to statement of accused No. 1, he has narrated that Hasan was acting as interpreter. On another occasion, accused No. 1 seems to have been informed by Hasan on phone that Khan would not be available at home on that day, because of some trouble. If Azizkhan was not knowing English and if any communication with accused No. 1 was required to be through the interpreter, even Khan leaving a message for accused No. 1 with accused No. 2 may not be sufficient to attribute intention to accused No. 2, which is essential ingredient for abetment by aiding. Beyond this, there is no evidence regarding participation of Accused No. 2.

Thus, taking into consideration the statements of Hasan and accused No. 1 together, although there appears a bleak chance of Hasan being a party, stronger possibility is of Hassan being a mere interpreter. He is a person without whose interposition, accused No. 1 and Azizkhan might not have been able to communicate and discuss the deal, but the circumstances available on record are not such that Hasan being abettor by intentionally aiding, would be the only logical deduction. In any case, Hasan appears to be entitled to benefit of doubt.

One more aspect is totally lost sight of so far as present case is concerned. According to prosecution, accused No. 1 was found to be in possession of heroin. Even accepting the statement of accused No.1., it was entrusted to him by Carry, (page 8 of Exh. 66). There is no evidence that Carry had procured it from Azizkhan and with assistance of Hasan. According to statements of accused No. 1, he had procured it from one Bhai with the assistance of accused No. 3 and handed it over to Carry on 9.3.91 which was again entrusted to him by Carry on 10.3.91. (pages 6. 7 of Exh. 67), Accused No. 2 Hassan has no role in that transaction also.

Referring to charge framed, accused Nos. 1,2 and 3 are said to have conspired. Whereas accepting the prosecution story as it is, Hasan could have been charged provided a conspiracy between accused No. 1, Azizkhan and Hasan was a subject matter of the trial, which is not the case. Accused No. 2 Hasan therefore is entitled to benefit of doubt.

10. The remand application with which accused No. 1 was produced before Additional Chief Metropolitan Magistrate is at Exh. 69. He does not seem to have complained of any illtreatment or torture at the hands of N.C.B. officials. Remand report of accused No. 3 is not brought on record. But it is not the contention on his behalf that he had complained about illtreatment. Immediately on production before the Magistrate or Special Judge.

Accused No. 3 was confronted with his three statements (Exhs. 46, 48 and 50) by question Nos. 66 to 70 u/s 313 of the Cr.P.C. He denied to have made any statement and added that his signatures were obtained on certain documents. He has not complained of any illtreatment, threat,

promise or inducement in order to extract signature or statement from him.

Question Nos. 77 to 89 and 91 in the statements u/s 313 of the Cr.P.C., 1973 of accused No. 1 are the questions during which accused No. 1 was confronted with his four statements. In reply to question No. 78, he said that the statement Exh. 66 was dictated to him and was forcibly obtained under duress. Again in reply to question No. 88, he stated that the statement Exh. 69 was obtained under duress. However, in reply to question No. 90 regarding his production before the Magistrate, although he complained that he was not furnished a copy of remand application, he has not stated that he complained to the Magistrate about any threat, torture under which his statements were obtained. In answer to concluding question No. 105, he has said that he was tortured and physically abused. It this complaint of torture and physical abuse is to be believed, there ought to have been complaint to the Magistrate or Special Judge, at the earliest possible opportunity.

In the circumstances, it is not possible to accept the contention that statements were obtained from accused Nos. 1 and 3 by subjecting them to third degree methods.

11. Relying upon couple of judgments of this High Court, it was contended that since accused were not warned as required by Section 164(2) of the Cr.P.C., that they were not bound to make a statement and the statements, which they may make were likely to be used as evidence against them, the lacunae makes the statement inadmissible in evidence. In Intelligence Officer v. Iburahimam Olarewagu, apart from absence of warning, the accused had complained to the Magistrate about torture by customs officers. The medical report supported the allegations raised by the accused that they were tortured before the statements were recorded. Lack of warning as per Section 164(2) was the third circumstances against the statements recorded by customs officers.

While deciding Criminal Appeal Nos. 626, 644 and 735/1996 on 7th and 8th September, 2000, this High Court followed the view in the case referred above. In this case also, absence of warning as required u/s 164(2) of the Cr.P.C. was not the only circumstance. The statements of the accused were recorded in English though none of them understood English.

Statements in answer to a notice are not confessions recorded by a Magistrate u/s 164 of the Cr.P.C. subject to safeguards under which confessions are made before the Magistrate. Therefore, the statements in response to summons u/s 67 of the N.D.P.S. Act or u/s 107 or 108 of the Customs Act are required to be carefully scrutinized to ascertain, if those were made under promise or threat from some one in authority. Neither Section 67 of the N.D.P.S. Act nor Sections 107 and 108 of the Customs Act prescribe issuing of a warning as u/s 164(2) of the Cr.P.C.. 19 73. while recording statements of accused, as in the case of confessions u/s 164(1) of the Code. Lack of such warning by itself, will not make the statements inadmissible.

In the present matter, before recording the statements - Exhibits 46 and 66 of accused Nos. 3 and 1 respectively, both of them were warned

that making false statement may make them liable for prosecution u/s 193 of the I.P.C. It was contended by learned counsel for the appellants that such a warning amounted to threat. It has been observed by the. Hon'ble the Supreme Court in Persi Rustomji v. State of Maharashtra, that threat of prosecution u/s 193 of the I.P.C does not constitute a threat within the meaning of Section 24 of the Indian Evidence Act.

On the contrary, it must be taken into consideration that a warning regarding possible prosecution for Section 193 of the I.P.C. was an Indication to the accused persons that the process of recording their statements was in fact process of collection of evidence.

In Pon Adithan v. Deputy Director, Narcotics Control Bureau, relied by learned P.P., it was argued that statement u/s 67 were made while the accused was in custody and in the statement u/s 313 of the Cr.P.C. he had claimed that the statement was given under threat and pressure. Admittedly, statement was recorded while appellant-accused was in custody of P.W. 1.

It was observed by the Hon'ble the Supreme Court.

"But that by itself cannot be regarded as sufficient to hold that the confessional statement was made by the appellant under pressure or compulsion. No complaint was made by the appellant when he was produced before the Magistrate on the next day nor he had made any complaint thereafter till his statements came to be recorded u/s 313 of the Cr.P.C. It was only during the trial that a suggestion was made to P.W. 1 and subsequently when the appellant gave a statement u/s 313 of the Cr.P.C., he stated that confessional statement was given by him under threat and pressure."

Finding of the Trial Court that confessional statement was voluntarily made and was safe to rely upon was upheld by the Hon'ble the Apex Court. Cases of accused Nos. 1 and 3 do not stand on any different fooling than in the reported case.

An objection is raised to the recording of statements of accused No. 3 in Hindi. For the purpose contents of his statements at Exhibit 46 are relied upon, wherein he has narrated that he is studied upto 8th Std. In Hindi medium. At the same time, he has also added that he can understand English, but he cannot write it.

In this context, it may be taken into consideration that admittedly accused No. 1 was his passenger, who used to hire his taxi whenever he came to India. It is nobody's case that accused No. 1 knows Hindi. According to statement of accused No. 1, he had paid Rs. 2500/- as hire charges to accused No. 3. Accused No. 3 has corroborated this version by saying that accused No. 1 had hired his taxi four years ago when he had visited India. On present occasion, it was hired for several days and he was paid at the rate of Rs. 200/- to Rs. 250/- per day. Thus, there is sufficient material on record within the statements of accused Nos. 1 and 3, and which part of the statements is not at all a confessional statement; capable of indicating that statement of Kishan that he knows English is not an addition by N.C.B. officials for the sake of convenience.

12. Learned Trial Judge found the statements reliable, considering that those contained many details which were not known to N.C.B. officials and considered together, those were corroborating each other. As already discussed, there appears noevidence to believe that accused Nos. 1 and 3 were tortured. Although accusedNo. 1 seems to have been detained beyond 24 hours since his interception on 12.3.1991 at 01-35 hours, statements are in his own handwriting. The length of statements as also the material contained within rules out the probability of extraction of statements by third degree methods. Reliability of the statements stands assured from the fact that certain details narrated by accused No. 1 which could not have been known by the raiding party, were subsequently confirmed on further investigation. Moreover this reliability stands tested by considering non-confessional part of the statement.

First statement of Accused No. 1 dated 12.3.1991 was immediately after his interception and cannot be faulted with by blame of continued detenlion. This is a statement in which accused No. 1 has inculpated himself. On references to Exhibit 66, few details can be quoted as illustrations which stood subsequently confirmed. This statement contains telephone number of Khan, which was confirmed when search of house of Khan was taken on 12.3.1991 evening between 6 p.m. to 8.p.m. The details regarding his visit to the place of Khan and discussion with Khan through Hasan accused No. 2 as interpreter is corroborated by Hasan. Accused No. 1 on 4.3.1991 having gone away in a taxi with Mr. Khan to Andheri, story narrated by accused No. 1 on 12.3.1991 is also confirmed by accused No. 2 Hasan in his statement dated 13.3.1991. Although details inculpating accused No. 3 Kishan have come in the second statement of accused No. 1 dated 13.3.1991, as soon as trip to Andheri with Mr. Khan was described, accused No. 1 has given taxi number MCP 87 with the name of driver Kishan, in his first statement.

All these details could not have been known by N.C.B. officials immediately after interception of accused No. 1. These are given by accused No. 1 and confirmed during subsequent investigation. Although very simple and innocent details, those deserve due weight. Personal details furnished by the accused are there, but those details are regarding places, persons, bank accounts which are beyond the shores of the country and could not be/were not verified by the investigating machinery. The fact that details within Bombay furnished by accused No. 1 were accurate lends reliability to the statement of accused No. 1.

If we are to refer the confessional part from the statement of accused No. 1, at pages 8 and 9 of his first statement, he has disclosed as to how he received 1 Kg. of heroin from Carry at Oberoi Coffee Shop on Sunday the 10th March, 1991. Eventually, the heroin allegedly recovered from him after interception was 1 Kg. He has explained the mystery of half torn note of 10 Guilden (Dutch currency). According to him, he was to deliver the contraband to a person on receipt of other half of that currency note.

The details inculpating accused No. 3 as the person who aided him to procure 1 Kg. heroin from Bhai @ Sebastian, are narrated in the statement of accused No. 1 dated 13.3.1991. But it must be taken into consideration that accused No. 3 was apprehended on 20.3.1991 and, therefore, there was source for accused No. 1 to know the details narrated by him on

13.3.1991 unless those were truthful. The last statement (Exh. 70) of accused No. 1 was recorded on 16.4.1991 after more than one month since the transfer of accused persons to Court custody. Accused No. 1 has affirmed in Exhibit 70 that accused No. 3 who was produced before him was the driver Kishan referred by him in his earlier statement. Accused No. 1 had an opportunity here to retract from his earlier statement, which he did not. Accused No. 3 has done so by retracting from identification of. Sebastian in his statement (Exh. 50) recorded by obtaining his custody from the Court on 24.4.1991. Although second statement of accused No. 1 recorded on 13.3.1991 and incriminating details against himself and accused No. 3 therein are corroborated by first statement of accused No. 3 recorded on 20.3.1991 (Exh. 46).

Considering alt these details, it must be said that truthfulness and reliability of the statements is assured by of some non-incriminating details narrated having stood verified and statements of accused Nos. 1 and 3 corroborating each other regarding incriminating details.

It was on 9.3.1991 that accused No. 1 procured heroin with the assistance of accused No. 3 and entrusted the same to Carry with a bag. Accused No. 1 believes the same bulk was entrusted to him by Carry, after concealing it in the false bottom on 10th March, 1991 and on 11.3.1991 he was instructed to depart by past midnight flight. Accused No. 1 is accordingly intercepted on 12.3.1991 at 01.35 hours.

To sum up there is no force in the contention that the statements were obtained by compulsion, i.e. threat, inducement, promise or torture. There is enough material within the statements and recovery during the investigation, which guarantees reliability of statements dated 12.3.1991 and 13.3.1991 of accused No. 1 and 20.3.1991 of accused No. 3. The statements are thus admissible in evidence. Those are not hit by Article 20(3) of the Constitution of India. The Officers of Narcotic Control Bureau, although officers in authority to some extent, are not police personnel and therefore if such statements happen to contain self-incriminating or confessional material, this would amount to be extra judicial confession and would not be hit by Section 25 of the Indian Evidence Act.

In an attempt to restrict the use and probative value of these statements, reliance was placed upon Harcharan Purmi v. State of Bihar, wherein it is held that confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deduciable from the said evidence.

The reported case was a prosecution for an offence punishable under Section 396 of the Indian Penal Code. While considering the statements of accused persons in the present case, strictly speaking those are not recorded as confessions, but self-incriminating material or material incriminating co-accused has eventually come in response to notice under Section 67 for giving facts and circumstances of the case.

The prosecution has placed reliance on comparatively recent judgment in Naresh J. Sukhawani v. Union, wherein the Hon'ble the Supreme Court observed as follows :-

"It must be remembered that the statement made before the Customs official is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs Officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India."

Statements of accused persons under Section 67 of N.D.P.S., Act, 1985 are certainly more like statements under Sections 107 and 108 of the Customs Act, rather than confessions recorded by Magistrates.

13. Non-compliance of Sections 52, 55 and 57:-

The Appellants have pleaded non-compliance of these provisions on the part of the prosecution on different grounds and pleaded that such compliance was mandatory and not having been done. Appellants are entitled to acquittal.

Section 52(1) of the N.D.P.S. Act requires that the officer effecting arrest of a person should inform him of grounds for such arrest. So far as accused No. 1 is concerned, Exhibit 69 page 288, records that the grounds of arrest are informed to accused No. 1 by furnishing him a copy of that remand application. Accused No. 3 was served a copy of Exhibit 49, letter dated 21.3.1991 addressed to Azad Maidan Police Station requesting the police station to take the accused in custody, which clearly indicates that he is being taken in custody in view of contravention of provisions of N.D.P.S. Act. There is no reason why the contemporary documents indicating that respective accused persons were informed of grounds of arrest should be disbelieved. Section 52(1) of the N.D.P.S. Act appears to have squarely complied with as far as accused Nos. 1 and 3 are concerned.

For the reasons already discussed in para 9 above, accused No. 2 is being accorded benefit of doubt, it is needless to consider the issue of non-compliance of provisions of N.D.P.S. Act regarding accused No. 2.

It was also pleaded that the raiding party did not forward the person arrested (accused No. 1) and the articles seized to officer in-charge of the nearest police station. Unfortunately the proposition is misconceived. On reference to text of Section 52 and especially sub-sections (2) and (3)(a) It is evident that those are the provisions which come into play only when search, seizure and arrest is effected on the basis of warrant obtained from a Magistrate.

Sub-section (2) of Section 52 opens with the clause "every person arrested and articles ceased under warrant issued under sub-section (I) of Section 41...".

Prosecution has produced at Exhibit 82 couple of notifications issued by the Central Government in exercise of powers conferred upon it by Section 53. Considering notification dated 14.11.1985 as amended by notification dated 1.11.1986 it can be seen that all the officers of Narcotic Control Bureau above the rank of Inspectors are invested with the powers

specified in sub-section (1) of Section 53 and thus by virtue of the said notification the officers are deemed officers in-charge of a police station for investigation of offence under this Act. The raiding party in our case consisted of Superintendent Sawant and a couple of intelligence officers and they being officers empowered under Section 53(1) of the N.D.P.S. Act, it was not necessary for them to forward the person arrested or articles seized to an officer in-charge of a local police station, or some third agency.

Such a view is fortified in view of the decision of the Supreme Court in Karnail Singh v. State of Rajasthan, relied upon by learned P.P.

In the reported matter. Learned Advocate for appellant had submitted that, as after seizure the goods were sent to Superintendent, Narcotic Control Bureau, Kota who as per law being in-charge of police station, had not affixed his seal on the articles and samples, the whole of the procedure followed being illegal, entitled the appellant to be acquitted.

It may be stated that such an argument is advanced on behalf of Accused No. 1 in the present matter also. It was pointed out that the seal affixed to the articles seized "NCB 93" at the time of seizure is the only seal on the articles and no different seal is affixed either by Mr. Naik when he took the articles in his safe custody, nor by the Godown keeper of Customs Departments, with whom the contraband was subsequently deposited, till pre-trial destruction under order of the Magistrate. It is observed by the Hon'ble the Supreme Court :-

"With the application of Section 51 read with Sections 52 and 53 of the Act, the officer required to affix the seal etc. under Section 55 of the Act would be "the Officer in charge of the nearest police station" as distinguishable from an officer empowered under Section 53 of the Act. If resort is had to the procedure prescribed under sub-section (3)(a) of Section 51, applicability of Section 55 of the Act would be attracted, but if the arrested person and the seized articles are forwarded under clause (b) of sub-section (3) of Section 52 of the Act to the officer empowered under Section 53 of the Act, the compliance of Section 55 cannot be insisted upon."

In the present matter the person arrested (Accused No. 1) and the articles seized, being in the custody of an Officer empowered under Section 53(1) of N.D.P.S. Act, right from the interception; there was no necessity to follow Section 52(3)(b) of the Act. Further, as observed by the Hon'ble the Supreme Court, there is no question of an officer incharge of the police station being required to affix his independent seal. The observations of the Hon'ble the Supreme Court thus repel one more argument advanced on behalf of the appellants.

Since the officers of N.C.B. are officers empowered under Section 53(1) of the Act, the procedure as required by Section 52(3)(a) or Section 55 is not required to be followed. This is because they are deemed officers incharge of the police station. Consequently, Section 52(4) enjoins a duty upon the officer to take measures as may be necessary for disposal according to law, of the person and articles, arrested and seized. On reference to record, following is the chronology of events regarding the steps taken for the purpose of discharging duty cast upon the officers by Section 52(4) of the Act :-

1. Interception, search and seizure :  12.3.91 :  01.30 to 03.30 (Exh. 10)

2. Sample received by Dy. Chief Chemist :  13.3.91 (Exh. 321

3. Sample received by F.S.L.

:  13.3.91 (Exh. 34]

4. Accused No. 1 produced before the Magistrate :  14.3.91 (Exh. 69J

5. Accused No. 3 produced before the Magistrate :  22.3.91 (Exh. 49)

6. Bulk contraband deposited with Godown of Customs Dept. :  22.3.91 (Exh. 35)

7. Currency deposited with R.B.I.

:  25.3.91 (Exh. 36)

8. Container Bag deposited with Sewree Godown of Customs :  5.4.91 (Exh. 37)

9. Order obtained from Special Judge for pre-trial disposal of bulk :  17.12.91 (Exh. 53)

10. Bulk contraband destroyed in presence of the Committee.

:  2.9.93 (Exh. 52)

Although the bulk quantity is not retained by N.C.B. In its custody till orders of pre-trial disposal under Section 52(a) and disposal of the property accordingly, the samples to be analysed having reached the Dy. Chief Chemist and Forensic Science Laboratory on 13th March 1991, there fs no possibility of tampering of the samples or bulk. The contention of learned Advocate that in view of Section 55 the property ought to have been kept by Mr. Naik in his custody till order of Special Judge and consequent pre-trial disposal, is not sustainable in view of inapplicability of Section 55 as observed in Karnail Singh's case (supra). Otherwise also Section 55 contemplates the officer keeping the property in safe custody and not in his own custody, till such pre-trial disposal. The contention of learned Counsel that depositing of contraband with Customs godown has caused Infraction of Section 55 is therefore not tenable. Although there has been delay in producing accused persons before the Magistrate, the effect of the same upon the statements recorded is already discussed in the earlier part of the judgment.

Section 57 requires that the officer effecting arrest and seizure should submit the report regarding the same within 48 hours to his immediate official superior. Such report is on record at Exh. 64 and appears to have been sent on 12th March, 1991 itself. Although it is not specifically reported that the Accused No. 1 Charles is arrested, who appears to have been detained since interception, there is atleast reference that Charles was summoned to N.C.B. office for investigation. The fact of detention has not gone unreported, although the nomenclature was inappropriate.

To sum up, the prosecution has complied requirements of Sections 52(1) and 52(3)(b). It has substantially complied section 57 and compliance of Section 55 was not expected in the facts and circumstances. The prosecution therefore cannot be said to be vitiated for non-compliance of Sections 55 and 57. Reliance placed by the appellants on the decision

in Thandiram v. State of Haryana, therefore, cannot come to rescue the appellants.

14. Superintendent Shri Sawant, Intelligence Officer Shri Gujaria and Panch witness Kirankumar provide direct evidence regarding interception of Accused No. 1 Charles Willey and finding of 1 Kg. heroin in his checked in baggage. Direct evidence of search and seizure is supported by contemporary document, p nchanama (Exh. 10) copy of which was furnished to Accused No. 1, then and there. This evidence is further supported by confessional part in the statements of accused Charles Wiltey dated 12.3.91 (Exh. 66). Participation of Accused No. 3 in procuring heroin for Accused No. 1 is disclosed by him in his first statement dated 20.3.91 (Exh. 46) which finds corroboration in the second statement of Accused No. 1 dated 13.-3.91 (Exh. 67) and ultimately from the fact that Accused No. 1 was found to be in possession of 1 Kg. heroin.

The evidence even after close scrutiny, is reliable and acceptable. The statements referred arc neither hit by Article 20(3) of the Constitution, nor by sections 24/25 of the Indian Evidence Act.

Provisions of Sections 50 and 55 of the N.D.P.S. Act. 1985 are not attracted at all. Requirements of sections 52 and 57 are substantially complied. Although there is no strict compliance of Section 42(2) of the N.D.P.S. Act, defective compliance by just keeping the information before Deputy Director, does not make the prosecution story unworthy of belief. Considering the fact that samples have reached Dy. Chief Chemist and Forensic Science Laboratory on the next day of seizure and till then these were under lock and key with Mr. Naik, there is no possibility of wrong sample having reached the Analyst. Oral evidence of Shri S. P. Kadam. Analyst from Forensic Laboratory together with his notes of tests carried out (Exh. 72 and 73) provide sufficient support to the positive finding regarding detection of heroin.

So far as Accused No. 2 is concerned, except his statement and that of Accused No. 1, which arc the main pieces of evidence against him, even if accepted, leave a room to believe that he is a character without whose interposition Accused No. 1 might not have been able to communicate with local contacts, but it cannot be said with certainty that he was abettor or conspirator. Moreover there is no link between his interposition and the possession of contraband by Accused No. 1.

The prosecution has thus proved the case as against Accused No. 1 Charles and No. 3 Kishanchand, but Accused No. 2 Hasan is entitled to benefit of doubt.

Appeal Nos. 6/1997 and 489/1999 by Accused Nos. 3 Kishanchand and 1 Charles respectively, are therefore dismissed. Appeal No. 3/1997 by Accused No. 2 Hasan is allowed. His conviction and sentence is set aside and he is acquitted of the charges. Fine if already paid by Accused No. 2 Hasan shall be refunded to him.

Additional Registrar (Judicial) shall ensure that a copy of this Judgment is furnished to each of Accused Nos. 1 and 3, (personally) free of cost, at the earliest.