Patrick Bruno Wafula vs Department Of Customs
2001 Latest Caselaw 1080 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal 120/97 seeks to challenge the judgment and order of the Additional Sessions Judge, New Delhi, in Sessions Case No.170/94, whereby the learned Judge by his judgment and order dated 9.12.1996 has found the appellant guilty under Section 21/28 and 23 of the NDPS Act and further by order dated 11.12.1996 has imposed a sentence of ten years and a fine of Rs.1,00,000/- (rupees one lakh only) and in default of payment of fine to further undergo R.I. for three years.

2. The brief facts of the case as have been noticed by the Additional Sessions Judge are as follows:-

"When the accused was apprehended, he was asked whether he was carrying any narcotic drug to which he replied in negative and thereafter, the Custom Officer asked him to identify his checked-in baggage which was identified by the accused i.e. a black colour Zipper bag (Hazard make) Ex. P.10 bearing Tag No. LH-402387 Ex.P4 which tallied with baggage stub no LTL 402387 Ex.P5 and which the accused opened with his key Ex. P11. On examination of the contents of the bag, it was found to contain his personal effects. One black coloured half pant was found to be unusually heavy and on its examination the front side pocket was found to contain 56 specially made capsules wrapped with a black adhesive tape which on cutting/removing the said tape, was found to contain small white polythene pouches which contained a light brownish powder. On random selection of one such capsule the light brownish powder contained therein tested positive for narcotic drug. Thereafter, all the 56 capsules were opened and their contents were homogenously mixed and when tested they tested positive for narcotic drug suspected to be heroin which weighed 470 grams.

The accused had been informed that if so desired, his personal search could be conducted before a Gazetted Officer but the accused declined this offer in writing and undertaking tot he said effect was given which is Ex. PW1/A. The personal search of the accused was conducted in the presence of two panch witnesses Sh. Kaleram and Sh. Vijender Singh and three hand written documents apart from a camera, purse containing currency notes were recovered. The panchnama which is Ex.PW1/B was thereafter prepared, signed by two panch witnesses, the accused and the seizing officer. The air ticket of the accused Ex.P1, boarding cards Ex.P2 and P3 passport Ex. P6 hostel card Ex. P7 identity card Ex. P9, baggage tag and baggage stub Ex.P4 and P5 were also seized.

The narcotic drug from the possession of the accused was also seized and four representative samples of five grams each were drawn from there which were packed in four polythene pouches which in turn were packed in four tin containers which were wrapped with cloth and stitched and sealed with the custom seal no.3/92 with a paper slip underneath signed by the seizing officer, the accused and two panch witnesses. The remaining 450 grams of the narcotic drug was packed in a polythene pouch which was placed in a plastic container which in turn was wrapped with cloth, Sticked and sealed with the custom seal no.3/92 over a paper slip signed by the seizing officer, the panch witnesses and the accused.

The voluntary statement of the accused U/s 67 of the NDPS Act read with Section 108 of NDPS Act was recorded which is Ex. PW2/B and Ex. PW2/C wherein he had admitted that he had accepted this offer to carry the narcotic drug in h is luggage as he had been promised payment of 1500 dollars and half refund of his return ticket.

The accused was arrested vide arrest memo Ex, PW1/C.

The four samples with seals intact were kept under the lock and key of the seizing officer and the remaining case property and the other sealed packets with seals intact wee deposited in the warehouse on 9.5.94. On 11.5.94. one of the four samples with the seal intact was handed over to ACO, RP Mittal PW3 along with two test memos Ex. PW1/D for deposit in the CRCL and the remaining three samples with seals intact were deposited in the warehouse on 17.5.94. The report of the CRCL dated 31.5.94. tested the contents of the sample positive for Diacetyl Morphine. The complaint filed by the department is Ex.PW1/E.

Charges U/S 21 and Section 28 read with Section 23 of the NDPS Act wee framed against the accused to which he pleaded not guilty and claimed trial."

3. The case of the appellant before me has been confined to the question of recovery, identity of samples, as also non-compliance of provisions of the Act. Learned counsel submits that according tot eh prosecution the appellant was taken into custody, his person searched and from the baggage recovery was allegedly made of 470 gms of Heroin on 9.5.1994. He submits that four samples were separated of five grams each, while remaining was sealed separately. The samples after sealing were kept by PW-1, K.K.Talwar. The remaining substance was sent for safe custody to the customs warehouse. On 10.5.1994 PW-1, prepared a test memo, retrieved the seal which was given for safe custody to PW-2, Sh.S.Yaseen and stamped the same. He submits that not sending the samples Along with the CRCL form/test memo on the same day tot eh warehouse would open the samples drawn to the criticism that the samples sent tot he CRCL was not representative of the material seized. He further submits that there has been a violation of Section 55, 57 as also 53 of the Act and therefore, the conviction based on such violation is hit by various judgments of the Supreme Court. He further submits that the sample sent to the CRCL is not supported with a forwarding letter nor road certificate and interestingly, when received by the CRCL has increased in weight. This itself according to him vitiates the conviction. Learned counsel also challenges the recording of the statement under Section 67 which according to him is not a confessional statement. He submits that in the event of violation of statutory, mandatory provisions as also doubts having been created qua the authenticity of the sample the conviction cannot be sustained merely based on statements under Section 67 of the Act.

4. On the other hand learned counsel for the respondent submits that a statement recorded under Section 67 which has been retracted fourteen days thereafter is sufficient to form the basis of conviction. Retraction according to learned counsel must be made at the first available opportunity. That having not being done in this case, the retraction is meaningless. He further submits that merely because the weight of the sample sent to CRCL does not conform to the weight of the sample reported is of no consequence in the absence of cross-examination on this line by the accused - appellant herein. He also submits that the absence of a forwarding letter cannot nullify the effect of the mention of the test memo in the report of the CRCL which would then go to show that the samples are that of the substance recovered.

5. I have heard learned counsel for the parties and given my careful consideration tot he arguments addressed before me. From the material on record and in particular from the statement of PW-1, Sh.K.K.Talwar, it appears that from the search conducted on the baggage of the appellant/accused 470 grams greyish brown powder was seized. Four representative samples of 5 grams each were drawn. The samples were packed in four polythene pouches which were packed in four tin containers and the containers were wrapped with cloth and stitched and sealed with Customs seal No.3/92 with paper slip underneath signed by PW-1, accused and panch witnesses. The remaining quantity i.e. 450 grams was packed in one polythene pouch which was placed in one plastic container/jar which was wrapped with cloth, stitched and sealed with Customs Seal No.3/92 over a paper slip signed by him, accused and panch witnesses. This witness further says that:-

"I had prepared the panchnama at the spot which bears my signature that of the panchas and the accused which is Ex.P.W.I/B. It bears the facsimile of the seal impression.

6. This witness goes on to depose that :-

"I had kept all the four sample packets with seal intact under my lock and key at the IGI Airport while deposited the remaining case property and other packets with seal intact in the warehouse on 9.5.1994, one of the four samples with seals intact was handed over by me to ACO R.P.Mittal on 11.5.1994 Along with two test memos for depositing in the CRCL. I deposited the remaining 3 samples with seals intact in the warehouse on 17.5.1994. The test memo is Ex.P.W.I/D. It bears my signatures."

7. It is obvious, therefore, that PW-1 kept the four samples with him while depositing the remaining case property in the warehouse on 9.5.1994. It is also in evidence that on the following day on 10.5.1994 PW-1 retrieved the seal from PW-2, Mr. S. Yaseen, ACS (Preventive), IGI Airport, New Delhi, who was required to keep in safe custody the seal used for sealing the samples as also the remaining case property. PW-1 prepared the test memo and along with one of the sealed samples forwarded the same to ACI, R.P.Mittal, for transmission of the CRCL. The samples received by the CRCL were not supported by a forwarding letter although PW-2, S.Yaseen, int he first instance, in his cross-examination deposed to the effect that he had forwarded the samples along with the forwarding letter signed by him which statement was retracted on the following day when he was asked to produce the forwarding letter. The samples received by the CRCL, when weighted, were 1.7 grams more that what was separated and sealed by PW-1 in the first instance. Pw-1 was asked in cross-examination how he weighed the samples to which he replied that the weighing was done on computerised weighing machine. He does not say that the machine was out of order, inaccurate or otherwise defective. There is no explanation for the increase in weight of the samples sent to and received by CRCL. This creates a doubt as to the genuineness of the sample sent inasmuch as the seal was easily available from PW-2 and tampering could not be ruled out. Even the test memo was prepared on the following day. There is no explanation as to why the samples were not sent along with the case property tot he warehouse on 9.5.1994. Further, when Ex.14 and Ex. 16 were opened in court, they were found not to conform with the packing as was in Ex.PW-1/B, the panchnama prepared on the spot. This further builds up suspicion qua the samples and the recoveries. Another aspect of the case to which attention was drawn was that there is no document produced on record to show the deposit of case of property in the warehouse and its movement there from. The in charge, warehouse, has not been examined nor any register exhibited. What we are left with is the testimony of PW-1 who says he sent the case property to the warehouse while keeping the samples with him for reasons best known to him and also that the seal of the Department used to seal the case property as also the samples was freely available to be re-used on the following day while preparing test memo. Such a lackadaisical manner of dealing with the case property and securing the seal as also the samples cannot free the prosecution's case from doubt and the possibility of tempering with the samples. I am unable to accept the ipse dixit of PW-1, in view of what has been noticed above, that the sample sent to the CRCL was representative of the seized powder.

8. Coming to the next question regarding violation of the provisions of Act, it is argued by learned counsel for the respondent that there has been no violation of the provisions of the Act and that a statement was recorded under Section 67(c) of the Act which statement per se is admissible into evidence sufficient to base conviction on. Examining this submission, from a perusal of the record, there is no material to show that any of the officers, who took the search, seized the goods and made arrest, were officers duly authorised under Section 42 of the Act. An officer of the specified department is to be authorised by a general or special order, which order has not been placed on record. In the absence of proof of special or general order empowering the officer under Section 42 of the Act, any exercise of power would be without authority of law. PW-1, PW-2 or PW-3 do not make a mention of being empowered under Section 42 of the Act which follows that PW-1 could not have kept the samples of the recovered articles with him but was required to deal with it in accordance with Section 52, namely, to deposit it before an officer in charge of the nearest police station or the officer empowered under Section 53 of the Act. Obviously, in this case, PW-1, who held on to the samples himself, has violated the provisions of Section 52 of the Act. In the event, Pw-1 was empowered under Section 42 of the Act, there is no reason why the accused was required to be taken to PW-2, S.Yaseen for examining him under Section 67(c).

9. There is also nothing on record to show that Section 57 of the Act, which requires a person making an arrest or seizure under the Act to make a full report of all particulars of such arrest and seizure to his immediate official superior within forty-eight hours, has been complied with. No such report has been placed on record although Pw-2 deposes tot he fact that a report was submitted to him, but Section 57 of the Act is a procedure established under the Act and is part of the investigation. It must form part of the investigation file and is required to be proved in court since it is a statuary safeguard and not a mere formality. Violation of this section can also have serious implication on the prosecution's case. The Supreme Court in Mahinder Kumar vs. State of Panaji (Goa). has held that Section 52 and 57 of the Act, which deal with steps to be taken by an officer after making arrest or seizure, are mandatory in character. This implies that violation of any of these mandatory provisions would render the conviction bad.

10. Great stress has been laid on the value of the information received and on examination of the accused under Section 67(c) of the Act.

11. I am of the view that this statement is not a confessional statement. The accused in this case was not arrested prior to him being examined under Section 67(c) of the Act. At highest, it is a statement during investigation, though admissible, but in the nature of an extra judicial confession.

12. In the present case, the so-called statement under Section 67(c), Ex.PW-2/B, was recorded by Pw-2 on 9.5.1994 and retracted on 23.5.1994. The accused was produced before the Magistrate for the first time on 10.5.1994 while he was in custody of the customs officials. The accused did not know whether he would be remanded to judicial custody or his customs remand extended. He was not in a position to freely and fearlessly narrate before the Magistrate his plight, while being surrounded by the customs officials. However, when remanded to judicial custody and produced before the Magistrate on the following occasion, the accused retracted his statement giving reasons for not being able to do so on 10.5.1994.

13. Taking Ex.Pw-2/B to be a statement admissible, it may not be out of place to note that the accused had stated that the drugs were given to him by one Mr. Adams who was also arrested along with the accused. However, Adams was discharged by the Court which order was not challenged and has become final. The statement of the accused under Section 67, therefore, was not relied upon as being a truthful rendition of account. Even otherwise, as I have already held, this statement can at best be equated to an extra judicial confession which cannot be the sole basis of a conviction but can certainly be used to render assurance to other independent material available.

14. Summing up the present case, the seizure was without authority of law, the sample sent is not free from doubt, Sections 52, 53 and 57 have been violated. Therefore, using the statement under Section 67 of the Act, per se is of no consequence.

15. In view of what has been discussed above, I have no hesitation in holding that the prosecution has miserably failed to prove their case. The judgment and order dated 9.12.1996 in Sessions Case No. 170/94 is set aside. The appellant is acquitted of all charges.

16. Criminal Appeal No. 120/97 is allowed. The appellant if in jail, shall be set at liberty forthwith.