IMPORTANT POINT
Admission by accused before Customs Authorities in NDPS Act case is not hit by Section 25 or Section 26 of Evidence Act is admissible in evidence.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 20(b)(2), 23 and 54-Recovery of 100 kg. of charas contained in a cavity of jeep and accused was sole occupant of jeep when it came from Nepal and reach barrier point-Conviction by trial Court-High Court set aside conviction in appeal holding that prosecution failed to prove conscious possession and that authorities should have gone after the owner of vehicle and two others who had accompanied accused for a part of journey-Appeal-Admission of accused before Customs Authorities who had apprehended accused was not dealt with by High Court-Such admission was not hit either by Section 25 or Section 26 of Evidence Act-Effect of Section 54 of the Act which raised presumption was not considered properly-Acquittal was as a result of unsatisfactory analysis of evidence and erroneous approach to statutory provisions-Fit case for fresh adjudication by High Court. (Paras 14 and 15)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. The Union of India calls in question legality of the judgment rendered by a Division Bench of the Allahabad High Court holding that respondent No.1 (hereinafter referred to as the accused ) was not guilty of the offence punishable under Section 20(b)(2) and Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the NDPS Act ). The Trial Court i.e. the 1st Additional Sessions Judge, Sidharthnagar had convicted the accused guilty for the aforesaid offences, and sentenced him to undergo imprisonment for 15 years and pay a fine of rupees one lakh with default stipulation.

3. Accusations which led to the trial of the accused are essentially as follows:

On 17.10.1994 at about 6.30 p.m. Inspector of Customs Sri B.K. Srivastava, Incharge Customs Station Khunwa, District Siddharthnagar, received an information that a person carrying Charas from Nepal shall be passing through the Customs Barrier (Khunwa Check Post). Consequently, Sir B.K. Singh, complainant (PW-1) summoned two independent witnesses and took position near the Barrier. At about 7.00 p.m. a Jeep bearing No. UTD 5560 was seen coming from Nepal side and when it reached near the Barrier, the Customs Officer stopped the Jeep for its checking. Accused who was the sole occupant of the Jeep stopped the vehicle. The Customs Officer in presence of witnesses told the accused that search of his person and the Jeep is to be taken because there is information that charas is concealed in the cavity of the Jeep. He was also informed that if he so desired he shall be taken before a Gazetted Officer for the purpose of search. Accused replied that the Officer may himself take his search and there was no necessity to take him before any Gazetted Officer. The Officer along with witnesses on inspection of the Jeep was satisfied that the Jeep contained a Cavity. Subsequently the Jeep along with the accused was brought to the Customs Office and in the presence of witnesses cursory search of the Jeep resulted in the discovery of a cavity and from smell it was clear that in this cavity charas was cleverly concealed. The Officer immediately sent Sepoy Sri Saghir Ahmad to Badhni with a request that Superintendent (Customs) Badhni may come immediately for the search of seized jeep which contained charas in its cavity. The Superintendent came from Badhni early in the morning at about 7.00 a.m. next day and in his presence the search of the Jeep was conducted and charas concealed in the cavity weighing 100 Kg. of the value of Rs. 10,00,000/-, was recovered. Samples were taken out, sealed in separate packets which contained signature of the accused, witnesses and the officer and the remaining charas was duly sealed. Since transportation of charas was in violation of Section 8 of the N.D.P.S. Act, the Jeep containing the charas was also seized.

4. A Panchnama of the said recovery, interrogation and seizures was prepared at the spot which were signed by the accused, witnesses and the Customs Officer.

5. The prosecution i.e. Union of India filed the criminal case No. 68 of 1994.

6. According to the complaint, statements of the accused recorded by the Inspector and the Superintendent are voluntary statements, and admissible in evidence.

7. In his voluntary statements recorded the accused clearly admitted the time, place and mode of recovery of the seized charas which was cleverly concealed in the Jeep driven by him. The statements are Exts. Ka. 2 and Ka. 5 on the record.

8. The Customs Officer duly arrested the accused on 18.10.94 and produced him before the competent court. One of the packets of the sealed sample of this charas was sent to chemical examiner for analysis and a report from the chemical examiner was received along with the envelope in which the sample was sent to him. The report and the envelope were attached with the complaint and were Exts. Ka-3 and Ka-4. They were proved by PW-1. The report clearly established that the articl

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2004 Supreme(SC) 966

IMPORTANT POINTAdmission by accused before Customs Authorities in NDPS Act case is not hit by Section 25 or Section 26 of Evidence Act is admissible in evidence.

IMPORTANT POINT
Admission by accused before Customs Authorities in NDPS Act case is not hit by Section 25 or Section 26 of Evidence Act is admissible in evidence.