Michael Gorden Kingsbury vs Narcotics Control Bureau
1994 Latest Caselaw 380 Del

JUDGMENT

V.B. Bansal, J.

(1) U.K. Mishra, Intelligence Officer, Narcotics Control Bureau (hereinafter referred toas"NCB") filed a complaint dated 22.1.1987 against Michael Gordon Kingsbury and Ms. Helen Anne Cooper for the offences punishable under Sections 20,23 and 28 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as "the Ndps Act"). The case came up before theAdditional Sessions Judge, New Delhi on 8.5.1987 when the following charges were framed against them :-Charge framed Against Michael Gordon Kingsbury:--"Firstly that on 12.1.87in early hours at Indira Gandhi International Airport, New Delhi TransitLounge, you were found in possession of 0.9 Kg. of Hashish (Cannabis)concealed in especially made cavities in both the black shoes worn by you and thereby committed an offence punishable u/Section 20 of the Ndps Act within outofmy cognizance.Secondly, on the aforesaid date time and place you attempted to export out of India the aforesaid 0.9 Kg. of Hashish (Cannabis) in contravention of provisions of Section 8 of the Ndps Act punishable u/Secs. 23 r/w. 28 of the NDPS Act 1985 and within my cognizance" Charge Framed Against Michael Gordon Kingsbury and Ms. Helen Anne Cooper :-...."That you both accused named above on 12.01.87 in the early hours at Indira Gandhi International Airport New Delhi transit Lounge were found in joint possession of 2.3 Kg. of Hashish (Cannabis) in a suit-case concealed in the inner linings of all the four inner sides of the said suit-case which you had retained without any permit or license, and thereby committed an offence punishable u/Section 20 Ndps Act within my cognizance.Secondly, on the aforesaid date, time and place you both attempted to export out of India the aforesaid 2.3 Kg. of Hashish (Cannabis) in contravention ofprovision of Section 8 of Ndps Act and thereby committed an offence punishable u/Section 23 read with Section 28 of the Ndps Act within my cognizance".

(2) Accused persons pleaded not guilty to the charges and claimed trial. In support of its case, seven witnesses, namely, Shri U.K. Mishra, P.W.1; Shri D.C.Mishra, P.W.2; Shri Shiv Dewan, P.W.3; Shri Gurpreet Singh Nanda, P.W.4; Ms.Uma Rana, P.W.5; Shri S.K. Goel, P.W.6 and Shri K.K. Sood, P.W.7 were examined by the prosecution. Both the accused persons when examined under Section 313 Cr.P.C. have denied the allegations against them and pleaded that they have been falsely implicated. It has also been pleaded by them that the suit-case did not belong; to them and no recovery, in fact, was made from them and from theirpossession. It was also claimed that they were tortured, intimidated and subjected to mental torture on account of which, they were forced to write the statements. No evidence was, however, produced in defense. Both Michael Gordon Kingsbury and Ms. Helen Anne Cooper were convicted for the offences with which they were charged and both the accused were sentenced to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000.00 each for the offence punishable under Section 20 with a further direction that in case of default in the payment of fine, they would undergo further Rigorous Imprisonment for 2 yearseach. They were also sentenced to undergo R.I. for a period of 10 years and to pay a fine of Rs.1,00,000.00 each and in default to undergo further R.I. for 2 years each for the offence punishable under Section 23 read with Section 28 of the Ndps Act,vide judgment and order dated 30.7.1990, by an Additional Sessions Judge, NewDelhi. It was also directed that substantive term of imprisonment awarded to both the accused shall run concurrently.

(3) Michael Gordon Kingsbury being not satisfied with his conviction andsentence, filed Criminal Appeal No. 135/90 against his conviction and sentence.Similarly Ms. Helen Anne Cooper was aggrieved from her conviction and sentence and so filed an appeal being Criminal Appeal No. 132/90 against her conviction and sentence. Both these appeals being against the common judgment and order of Additional Sessions Judge, New Delhi, they are being disposed of by this judgment.

(4) In January, 1987, U.K. Mishra was posted as an Intelligence Officer in theNCB. The brief facts of the case are contained in his statement, recorded by the Trial Court as P.W.I. It has inter-alia been stated by him that during the night between11th and 12th of January, 1987, he was directed by his superior officers to go to I.G.I.Airport along with other officers to look for two British nationals, namely, Michael Gordon Kingsbury and Ms. Helen Anne Cooper who were supposedly going from Kathmandu and were in Transit Lounge, waiting for connecting flight to Amsterdam. Accordingly, he while accompanied by S/Shri D.C. Mishra, D.A. Nastane,B.K. Verma and A.S. Bora, Intelligence Officers, went to the Airport to locate the two passengers in the Transit Lounge. He met the two accused and a perusal of documents revealed that they came from Kathmandu and were going to Amsterdam. An enquiry was made by him from both the accused, if their baggage had any drugs or any other contraband, to which, their reply was in the negative. An examination of their Air-ticket revealed that they had booked one suit-case on the KLM Airlines and the baggage had already been checked in and sent to the loadingarea. Giving reference to the baggage tag, the Klm Officials were contacted andthe said bag was called back. It was a suit-case, and was opened by Michael Gordon Kingsbury with the key in the presence of Intelligence Officers, accompanying U.K.Mishra and two officers of Klm Airlines, namely Shiv Dewan, P.W.3 and GurpreetSingh, P.W.4. The suit-case contained clothes of the accused persons and the walls of the suit-case appeared suspecious. The lining of the suit-case was opened and black substance appearing to be Hashish was recovered. Personal search of Michael Gordon Kingsbury was also taken and from the shoe he was wearing, 900gms. of black substance like Hashish was recovered from the suit-case, wasrecovered. However, no recovery could be effected from Ms. Helen Anne Cooper.

(5) U.K. Mishra took proceedings and the black substance recovered from the suit-case on weighing was found to be 2.3 Kg. while the substance recovered from the shoe of Michael Gordon Kingsbury was found to be 900 gms. 3 samples of 10gms. each were taken from the substance recovered from the suit-case and similarly 3 samples of 10 gms. each were separated from the black substance like Hashish recovered from the shoe. These were converted into separate parcels,sealed with the seal 'NCB 08' and the slips pasted on the samples were signed by both the accused and the witnesses. Personal baggage carried by the accused persons was also searched, but nothing incriminating was recovered from them. A Panchnama was prepared by U.K. Mishra in the presence of the witnesses, which was signed by him and the witnesses.

(6) Both Michael Gordon Kingsbury and Ms. Helen Anne Cooper were interrogated by U.K. Mishra and they recorded their statements in their own handwriting giving the details about the recovery effected from them and about the manner in which they were carrying the material. Samples were sent to the Central Revenue Control Laboratory, wherefrom, a report was received. It is, in thesecircumstances, that the complaint was filed against the accused persons.

(7) I have heard Shri Harjinder Singh for Michael Gordon Kingsbury and ShriL.K. Upadhyay for Ms. Helen Anne Cooper and Shri J.S. Arora, learned Counsel for the respondent and have also carefully gone through the record.

(8) Learned Counsel for the appellants have submitted that there has not been any recovery from the appellants and that it has been planted upon them. It has further been submitted that there has been non-compliance of the mandatory provisions contained in Sections 42 and 50 of the Ndps Act and there is no positive evidence that the case property was not tempered with before the samples were sent to the Central Revenue Control Laboratory for analysis. It has also been submitted that both the appellants were tortured and subjected to third degreemethods, on account of which, they were made to write the dictated statements,which can not be said to be voluntary statements and thus, not admissible and cannot be relied upon. A prayer has, therefore, been made that the appellants may be acquitted.

(9) Learned Counsel for the respondent has, on the other hand, submitted that there has not been any violation of the mandatory provisions, contained in the Act and that there was no motive for the officers of the Ncb to falsely implicate the appellants. He has further submitted that the statements of the officers have fully been corroborated by the public witness Gurpreet Singh P.W.4 and there was no question of Hashish being planted upon the accused persons. It has further been submitted that a perusal of the statements made by two accused persons makes it abundantly clear that the facts contained therein could not be in the knowledge of the Intelligence Officers of the Ncb and these could be narrated by the accused persons. Only, which is clearly a safeguard to hold that these were the voluntary statements made by the accused persons. He has also submitted that there was no chance of the case property being tempered with and the sample having been found to be of Hashish, the appellants were trying to export Hashish out of India and thus,they .have rightly been convicted. A prayer has therefore, been made that the appeals may be dismissed.

(10) As already noted, Michael Gordon Kingsbury was charged under Section 20 of the Ndps Act for being found in possession of 900 gms. of Hashish and for making attempt to export out of India, the said Hashish in contravention of provisions of Section 8, punishable under Section 23 read with Section 28 of the NDPS Act. The charge against both the accused was in respect of 2.3 Kg. of Hashish found in their joint baggage. The order of sentence, however, shows that Ms. Helen Anne Cooper has been awarded sentence both in respect of 900 gms. of Hashish and2.3 Kg. of Hashish, which was not even the case of the prosecution. It is, thus, clear that the sentence under Sections 20 and 23 read with Section 28 of the Ndps Act in respect of 900 gms. of Hashish, which, according to the prosecution was found in possession of Michael Gordon Kingsbury can not be sustained even as per theallegations, and thus, it has to be set aside on this ground alone.

(11) It is the admitted case of the prosecution that there was prior information about the availability of contraband with the two persons, whose names and identity was also known. It has been clearly admitted by U.K. Mishra, Intelligence Officer and supported by the other witnesses that after both the accused were identified on the basis of their documents, one suit-case, stated to be booked on their tickets and had already been checked-in, was recalled, thus, produced beforeU.K. Mishra. There is nothing in the statement of the witnesses to show that any compliance of Section 50 of the Ndps Act was made. It would, at this stage, be convenient to quote Section 50 of the Ndps Act, which reads as under :- "50.Conditions under which search of persons shall be conducted. - (1)When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall,if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 orto the nearest Magistrate.(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.(4) No female shall be searched by anyone excepting a female."

(12) A bare reading of this Section makes it abundantly clear that the officer desirous of taking the search has to inform the concerned person that if he sodesires, he could be taken to the nearest Gazetted Officer of any of the department mentioned in Section 42 or to any nearest Magistrate, and if such a requisition ismade, the person concerned has to be taken before the Gazetted Officer or theMagistrate. No such offer was, however, given to the appellants. Learned Counsel for the appellants have submitted that it was a mandatory provision and its noncompliance vitiates the trial and on this ground alone, the appeals filed by the appellants have to be accepted and thus, it has been submitted that the conviction of sentence of the appellants may be set aside on this ground alone. Learned Counsel for the respondent has frankly admitted that there has not been any compliance of Section 50 of the Act. He has, however, submitted that this provision would apply only with regard to the taking of the personal search of the accused and that there was no such requirement as regards the search of the baggage and articles with the accused persons. He has, thus, submitted that the conviction of the appellants can be maintained with regard, to the recovery effected from the suitcase on the basis of its search.

(13) A perusal of the statements made by the witnesses clearly indicates that there was prior information with regard to the availability of contraband with the accused persons and it was on that basis that they were searched. It is, thus, clear that it was a search of the appellants under the suspicion that they were carryingcontraband. The question for consideration is whether Section 50 would be applicable only qua the personal search and not with regard to the luggage carried by them and a plain reading of the Section makes it clear that it would apply even with regard to the articles and luggage/baggage with the accused. Learned Counsel for the respondent has not been able to point out any case law in support of his submission that it is not incumbent upon the officer making search of the person and luggage to ask for an option from the said person of being searched before a Gazetted Officer or a Magistrate, if he so desire. The only purpose of sucha provision is to rule out possibility of falsely implicating a person since the sentence provided for the offence is very severe. It would, at this stage, be also convenient to refer to the statement of U.K. Mishra, P.W.1, when he has stated that it was not mentioned in the Panchnama that the recovered contraband and weight of sample was taken by approximation. He has further stated that in fact, the total contraband recovered was actually weighed but the sample was not weight because of small quantity. A perusal of the Panchnama Ex. P.W.I/A, however,indicates that three samples were taken out of the Hashish recovered from the suitcase and three samples were taken out of the Hashish recovered from the shoe and all the sample were weighing 10 gms. each. It is, thus, clear that even this witness has claimed about having wrongly mentioned in the Panchnama regarding the exact weight of the samples and thus, indicating that the Panchnama does not indicate the correct proceedings taken with regard to the recovery and seizure. It is also pertinent to note that as per the statement of the witnesses, key was produced by Michael Gorden Kingsbury with which, the suit-case was opened.However, there is no mention about the key in the Panchnama nor any such key has been produced -and there is no indication that any such key was taken intopossession. I have no doubt in my mind that when a person is found in a public place and there is a suspicion of his being in possession of a contraband on his person or in the baggage carried by him, it is mandatory for the person desirous of conducting the search to give an option in terms of Section 50 of the Act and in case of non-compliance, the trial gets vitiated. I find support for this view from the case State of Punjab v. Balbir Singh .

(14) Learned Counsel for the respondent has submitted that boh the appellants had made extra judicial confession in their statements before Shri U.K. Mishra,Intelligence Officer, just after the recovery was effected and that these statements were admissible under Section 67 of the Act. He has, in these circumstances,submitted that the conviction of the appellants can be based even on the confessional statements. Learned Counsel for the accused persons have, however, submitted that the so-called confessions were obtained by the Intelligence Officer after subjecting them to torture and under coercion and they being involuntary,which were subsequently retracted, can not be sufficient to base the conviction. It has further been submitted that since the trial gets vitiated on account of noncompliance of Section 50, there can possibly be no question of conviction being maintained on the basis of such uncorroborated statements.

(15) The first question to be considered is as to whether it is permissible for the Intelligence Officer of the Ncb to record the confessional statements. Section 67 of the Act reads as under : "67.Power to call for information, etc. - Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act -any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order madethere under;(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry:(e) examine any person acquainted with the facts and circumstances of the case."

(16) The law is well settled that officers of the Customs Department, Fera, of Revenue Intelligence are not Police Officers in terms of Section 25 of the Evidence Act. Reference in this regard can be made to the case Badaku JotiSvant, Appellant v. State of Mysore, Respondent relating to the powers of recording the statements by Deputy Superintendent of Customs and Excise and Kirpal Mohan Virmani v. B.D. Mishra, Intelligence Officer [1988(2)Delhi Lawyer (DB) 398] relating to the officers of Department of Revenue Intelligence. On the same analogy officers of the N.C.B. are not Police Officers.

(17) Section 39 of the Foreign Exchange Regulation Act (FERA) empowers the Director of Enforcement or any officer of enforcement authorised in this behalf by the Central Government to examine any person acquainted with the facts and circumstances of the case during the course of any investigation or proceedings under that Act. Under Section 40 of Fera, any Gazetted Officer of the Enforcement has been given the power to summon any person, whoseattendance, he consider necessary either to give evidence or to produce a document during the course of any investigation or proceedings under this Act and all persons so summoned are bound to attend either in person orby authorised agents, and they have to make statements or produce such documents as may be required and such proceedings are deemed to be judicialproceedings. In case K.T.M.S. Mohd. & Am. v. Union of India , the matter came up for consideration before the SupremeCourt, wherein it has been held that voluntary nature of any statement made either before Customs Authorities or Officers of Enforcement under the relevant provisions of the respective Act, is a Sine Qua Non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion orby any improper means that statement must be rejected. It has further been observed that merely because a statement is retracted, it can not be termed as involuntary or unlawfully obtained and it is for the maker of the statement, who alleges inducement, threat, promise etc. to establish that such improper mans had been adopted. There is further observation that even if the maker of the statement fails to establish his allegation of inducement, threat etc. against the officer, who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in atleast subjectively applying its mind to the subsequent retraction that the such inculpatory statement was not extorted.

(18) In case Shankaria v .State of Rajasthan [AIR 1978 Sc 1248], it has been held that confession even if retracted but found to be corroborated from other independent evidence can form the basis for conviction. In the instant case, the prosecution has placed reliance upon the statement Ex. Public Witness 1/C alleged to have been made by Michael Gordon Kingsbury and Ex. Public Witness I/D by Ms. Helen Anne Cooper. It is the case of the prosecution that Ms. Helen Anne Cooper was examined at the Airport when statement Ex. Public Witness I/D was recorded by her on the questions being put byU.K. Mishra, while the statement Ex. Public Witness I/C was recorded in the office of Ncb at Ranjit Hotel. There was a suggestion that Michael Gordon Kingsbury refused to make a statement at the Airport and it was on that account that he was taken to the Office and it was only after he was tortured in the office that his statement wasobtained. It is pertinent to note that on both the statements Ex. Public Witness 1 /C and Ex. Pwi /D, there is nothing to indicate that these were written by accused persons in the presence of U.K. Mishra. These have not been attested by U.K. Mishra also. There has been a suggestion to Public Witness 1 U.K. Mishra that in the Statement Ex. Public Witness 1/C of Michael Gorden Kingsbury there are cuttings and additions, which are indicative of implicating Ms. Helen Anne Cooper as an accused and that they are in differentink. Reply by Shri U.K. Mishra has been that it was difficult for him to say that these are in two different inks and that may be that the writing was made by Michael Gorden Kingsbury with two different pens. It is the admitted case of prosecution that Michael Gorden Kingsbury was not having any pen of his own and thus, it can be only that the pen provided by the complainant or anyone on his behalf. A perusal of statement Ex. PW1/C clearly shows that additions and cuttings are there so as to indicate that instead of Michael Gorden Kingsbury being alone involved in this export of Hashish, Ms. Helen Anne Cooper was also associated with him. According to U.K. Mishra, he was putting questions and seeking answers which he continued during the recording of the statement by Michael Gorden Kingsbury and prior to that he was interrogated for about two hours. Ms. Helen Anne Cooper has also claimed that she had not made the statement of her own and was asked to write the statement. There is no doubt that it is only in their statements under Section 313 Cr.P.C. that they denied having made these statements and claimed that they were subjected to torture and coercion and no separate application in this regard wasmoved. However, PW1 was cross-examined in detail on this subject.

(19) There is no doubt that an extra-judicial confession, if voluntary made, can be relied upon by the Court along with other evidence in convicting the accused.Reference can be made to the case Mulak Raj v. State of U.P. [AIR 1977 Sc 9021.There is no requirement that extra-judicial confession should in all cases becorroborated: If such a statement is made before a responsible officer having no animus against the appellants, the same can be relied upon when corroborated by other witnesses also, as held in Piara Singh v. State of Punjab However, even such confessional statements, in my view, can not be considered sufficient for conviction in view of the fact that violation of Section 50 of Ndps Act vitiates the trial as such. If the trial gets vitiated on account of non-compliance of Section 50, can there be conviction on the basis of the confessional statements,alleged to have been made by the accused after the alleged recovery when they have claimed that the same was not voluntary and in view of the cuttings and additions in the statement of Michael Gordon Kingsbury and my answer is in thenegative.Learned Counsel for the appellants have also submitted that there has not been any convincing evidence with regard to the' case property having not been tempered with. I, however, do not find it necessary to discuss about this submission in view of my conclusion, aforesaid.In view of my aforesaid discussion, both the appeals are accepted. conviction and sentence of both the appellants are set aside and they are acquitted. Michael Gorden Kingsbury and Ms. Helen Anne Cooper are ordered to be released forthwith if not required in any other case.