2007 Supreme(SC) 717

2007(5) Supreme 250
Supreme Court of India
(From Madras High Court)
B.P. Singh & Tarun Chatterjee, JJ.
Ravindran @ John — Petitioner
versus
The Superintendent of Customs— Respondent
Appeal (crl.) 1201 of 2005
With
Appeal (crl.) 1202 of 2005
Decided on : 14-05-2007
Counsel for the Parties :
For the Appellant : Ms. V. Mohana and Triloki Nath Razdaa, Advocates.
For the Respondent : Vikas Singh, ASG., A.S. Rao, Navin Prakash, B.K. Prasad and P. Parmeswaran, Advocates.

IMPORTANT POINT
Where accused in an offence under NDPS Act was apprehended from Bus-Stand on prior secret information and contraband was found possessed by him in a polythene bag, Section 42 & 50 of the Act would not be attracted.
Conviction under NDPS Act only on basis of confession of co-accused and confession of accused-appellant later retracted could not be sustained.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1995 – Section 8 & 22(c) – Recovery of 1.528 Kilograms of Diazepam from possession of appellant – Conviction and sentence of 10 years imprisonment & fine Rs.One lac – Appeal – Officials of Customs Sea Base Party PW1 & 2 on prior secret information apprehended appellant from a Bus-Stand – Appellant was searched in presence of two independent witnesses and was found carrying a polythene bag – Bag was found to contain white colour powder and appellant informed that it was Diazepam – Substance was sealed and with accused brought to customs office where proceedings were carried out – Report of chemical analyst showed that substance was Diazepam – High Court was right in its conclusion that Section 42 of the Act was not attracted – Section 50 was also not attracted – Two independent witnesses joined in search and segue were not examined in trial – Failure to examine them required Court to have critical scrutiny of evidence – Courts below correctly appreciated the material on record and rightly concluded that appellant was unsolved in the offence – Non mentioning of proportion in which components were found by Chemical Analyst did not matter with Conviction u/s 22(c) of the Act – Conviction was not liable to be interfered with.

       Held : We hold that the High Court was right in coming to the conclusion that Section 42 of the Act was not attracted to the facts of this case. In the instant case on information received by PW-2 who communicated the same to PW-1, the witnesses went to the bus stand where the person carrying the drug was expected to arrive. The appellant was arrested at the bus stand. The appellant was, therefore, not searched and arrested in exercise of power of arrest, search, and seizure under Section 42 of the Act. Section 42 applies to a case where the officers concerned on information received, or having reason to believe from personal knowledge that any offence has been committed in relation to any drug or psychotropic substance etc. and which is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset, enter into and search any building, conveyance or place. They are also vested with the power of search and seizure and authorized to arrest the person whom they have reason to believe to have committed any offence punishable under this Act. The facts of this case disclose that the arrest and seizure took place at the bus stand and not in any building, conveyance or enclosed place. The High Court has rightly held that the case was covered by Section 43 of the Act which does not require the information of any person to be taken down in writing. Similarly, there is no requirement that the concerned officer must send a copy thereof to his immediate official superior within 72 hours. We, therefore, hold in agreement with the High Court that Section 42 of the Act was not attracted to the facts of the case. It is, therefore, unnecessary to burden this judgment with decisions cited at the Bar regarding the effect of non-compliance with Section 42 of the Act.

       (Para 6)

       Held : In the instant case, it is not in dispute that the appellant was carrying a plastic bag in which the drug in question duly packed had been kept. Section 50 is, therefore, not attracted to the facts of this case.

       (Para 8)

       Held : In the instant case it is not disputed that two independent witnesses were associated when the search was conducted. The search was, therefore, conducted in accordance with law. But it is argued that failure to examine the two witnesses is fatal to the case of the prosecution. In our view, this is not the correct legal position. Even where independent evidence is not examined in the course of the trial the effect is that the evidence of the official witnesses may be approached with suspicion and the Court may insist on corroboration of their evidence.

       (Para 11)

       Held : In the instant case we find that the courts below have critically scrutinized the evidence of the prosecution witnesses applying the rule of caution and we find no reason to disagree with their findings.

       (Para 12)

       Held : It was lastly urged that though the Chemical Analyst had reported the presence of Diazepam, he had not given particulars as to the proportion in which its components were found. Counsel for the appellant placing reliance on the judgment of this Court reported in (2005) 7 SCC 550 Amarsingh Ramjibhai Barot Versus State of Gujarat submitted that this may have a bearing on the question of sentence. In the instant case, we are concerned with Diazepam. According to the Notification 20 grams of Diazepam is considered to be small quantity. Any quantity in excess of 500 grams is commercial quantity. In the instant case 1.528 Kilograms of Diazepam was found. In these facts the case is clearly covered by Section 22 (c) of the Act. We, therefore, find no merit in any of the submissions urged on behalf of the appellant Ravindran. His appeal fails and is, therefore, dismissed.

       (Para 14)

       Narcotic Drugs and Psychotropic Substances Act,1985– Section 8, 22(c) and 29 –Recovery of 1.528 Kg.Of Diazepam from possession of co-accused– Conviction of appellant on basis of confession of co-accused and confession of appellant- Whether confessional statement of appellant was sufficient to uphold his conviction particularly when same had been retracted no.

       Held : It is not in dispute that the facts which have been relied upon by the High Court are culled out from the confession of Peter John. The question is whether the confessional statement of appellant Peter John is sufficient to uphold his conviction particularly when the same has been retracted and there is no other reliable evidence to convict him. In our view the benefit extended to Hiralal ought to be extended to appellant Peter John as well. The High Court did not find the confession of the co-accused reliable enough to be used either against him, or his co-accused. Appellant Peter John and Hiralal were arrested and brought to Madurai together and their confessions were recorded. The High Court has not considered it safe to act on the confession of Hiralal and acquitted him of the charge leveled against him. If the confession of Hiralal could not be used against him, certainly it could not be used against appellant Peter John a co-accused. Both the confessions were recorded one after the other. While in the confession of appellant Peter John it was stated that Hiralal had told him that he had found the packet abandoned in a running train, Hiralal in his confessional statement stated that he had received the packet from his friend Bharatlal and he had handed over the same to appellant Peter John. The High Court has not accepted this part of the prosecution story because in that event Hiralal would have been found guilty of having conspired to commit the offence or at least could have been found guilty of abetment since he had admitted that he had received the packet from Hiralal and handed over the same to appellant Peter John for sale. In these circumstances, the evidence that remains against the appellant Peter John is rather slender and it is not safe to uphold his conviction on such evidence, particularly when the person who is supposed to have given him the contraband has been given the benefit of doubt by the High Court. The charge against appellant Peter John is one of conspiracy to commit offences under the Act. The High Court has not accepted the involvement in the conspiracy of Hiralal who in his confessional statement claimed to have handed over the contraband to appellant Peter John. If the confessional statement of Hiralal is discarded, there remains no evidence except his own confession to implicate the appellant Peter John. The High Court did not find it safe to act on the retracted confession of Hiralal. The confession of the appellant was also recorded by the same team of officers at about the same time. The appellant also retracted his confession.

       In these circumstances we are of the view that appellant Peter John is also entitled to the benefit of doubt. We, accordingly, allow his appeal and set aside his conviction and sentence. (Para 7 & 8)