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2009(2) Supreme 511
SUPREME COURT OF INDIA
(From Jammu and Kashmir High Court)
Dr. Arijit Pasayat, A.K. Jain and Dr. Mukundakam Sharma, JJ.
Inspector of Customs, Akhnoor J & K — Appellant
versus
Yash Pal and Anr. — Respondents
Criminal Appeal No. 447 of 2009
(Arising out of SLP (Crl.) No.4662 of 2003)
Decided on : 06-03-2009
AIR 1953 SC 468; Bibhuti Bhusan Das Gupta’s case – Relied upon.
(b)Code of Criminal Procedure, 1973 – Section 313 – It is trite law that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it – However, where such an omission has occurred it does not ipso facto vitiate the proceedings – Prejudice occasioned by such defect must be established by the accused. (Para 18)
(1993)3 SCC 208; (1973)2 SCC 793 – Relied upon.
(c)Code of Criminal Procedure, 1973 – Section 313 – Well settled that the provision is mainly intended to benefit the accused – And as a corollary, to benefit the court in reaching the final conclusion – The provision is intended to comply with principles of natural justice. (Paras 21 and 22)
AIR1963 SC 612 – Relied upon.
(d)Code of Criminal Procedure, 1973 – Section 313(1)(b) r/w sections 243(1), 247 and 233(2) – An accused is entitled to put in written statement u/ss 243(1), 247 and 233(2) – Common knowledge that most of such statements are prepared by counsel – Therefore answers given by counsel in the manner set out should be afforded the same worth. (Para 25)
(2000)8 SCC 740; (2008) 8 SCC 447 – Relied upon.
Facts of the case :
1.On 1st July, 1995 at about 4.15 a.m. Army Patrolling Party, on the other side of Village, Hamirpur Sidhar near DCB end point, noticed suspicious movement of some infiltrators who on being challenged abandoned some suspicious materials and escaped under the cover of darkness. On receipt of this information, Customs Staff camping at the other side of the village rushed to the spot. Both the army authorities and Custom staff, found some suspicious materials on spot in two salwars and a plastic bag left abandoned in the field near DCB end point.
2.From the three packages found lying abandoned in the field 56 packets of light brown powder, each weighing one kg. were recovered and seized by the Custom staff. It was confirmed that the material was contraband Morphine Heroin or its derivative.
3.The identity of infiltrators was established through the secret information report recorded prior to the seizure. Names of two suspects were Hakikat Singh and Yashpal.
4.Yash Pal who appeared before the Superintendent, Customs made confessional statement on 27.7.1995 and in his voluntary statement he disclosed the names of two accomplices, namely, Hakikat Singh and Paramjeet Singh and narrated the sequence of events. He also confessed that he was being paid Rs.2000/- by Hakikat Singh @ Kiti and Paramjit Singh alias Pamma for carriage of contraband articles. Similarly, on 23rd August, 1995 accused Hakikat Singh was also intercepted by the Custom staff, Jammu and he made voluntary statement to the same effect. He confessed that he was being paid Rs.10,000/- for carriage of the material. Paramjit Singh did not appear before the Custom authorities.
5.The trial Court found the accused respondents guilty and recorded the conviction and imposed sentence.
6. The High Court directed acquittal.
Finding of he Court :
Confession before the Customs Authorities was not brought to he notice of he accused persons.
Result : Appeal dismissed.
JUDGMENT
Dr. Arijit Pasayat, J. —
1.Leave granted.
2.Challenge in this appeal is to the judgment of a Division Bench of the Jammu and Kashmir High Court directing acquittal of the respondents who were found guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the ‘Act’).
3.Background facts in a nutshell are as follows:
On 1st July, 1995 at about 4.15 a.m. Army Patrolling Party, on the other side of Village, Hamirpur Sidhar near DCB end point, noticed suspicious movement of some infiltrators who on being challenged abandoned some suspicious materials and escaped under the cover of darkness. On receipt of this information, Customs Staff camping at the other side of the village rushed to the spot. Both the army authorities and Custom staff, found some suspicious materials on spot in two salwars and a plastic bag left abandoned in the field near DCB end point. They called two panchs from the area and the three packages found lying abandoned in the field were opened in their presence from which 56 packets of light brown powder, each weighing one kg. were recovered and seized by the Custom staff under Section 110 of the Customs Act, 1962 (in short ‘Customs Act’). Apart from that, one pair of Chappal and two pairs of shoes total three footwear were also recovered from the spot. Recovered material appeared to be some Narcotic Drug in packets and in yellow brownish paper kept in polythene bags wrapped in cotton cloth bearing stamp marking in Urdu Khadi No.1, No.858 and 223. It was subjected to drug test by the Custom Staff with U.N. Drug test kit and it was confirmed that the material was contraband Morphine Heroin or its derivative. Recovery-cum-seizure memo of the Heroin was prepared and panchnama was drawn on spot. The samples were taken out of the seized material and sent for chemical analysis to FSL, Jammu who in its report revealed that Diactyl Morphine ‘Heroin was found present in the samples taken out of the recovered light brown powder. The identity of infiltrators was established through the secret information report recorded prior to the seizure. It was disclosed that the names of two suspects were Hakikat Singh and Yashpal. Recovery of three packages and three pairs of foot wearings were made from the spot. The recovery of three packages and three pairs of foot wearing indicated that third person was also accompanying the two infiltrators.
Yash Pal was summoned by Superintendent, Customs under Section 108 of the Customs Act. He appeared before him and made confessional statement on 27.7.1995 involving himself in smuggling of Heroin and was thereupon arrested. In his voluntary statement of confession, he disclosed the names of two accomplices, namely, Hakikat Singh and Paramjeet Singh and narrated the sequence of events of fetching fifty six Kg. Heroin at Indo Pak border and its carriage upto village Hamirpur Sidhar and on its detection by the Army Patrol, it led to his escape from the scene after abandoning the material and three pairs of foot wear. He also confessed that he was being paid Ra.2000/- by Hakikat Singh @ Kiti and Paramjit Singh alias Pamma for carriage of contraband articles. Similarly, on 23rd August, 1995 accused Hakikat Singh also came to be intercepted by the Custom staff, Jammu and he made voluntary statement to the same effect. He confessed that he was being paid Rs.10,000/- for carriage of the material. Paramjit Singh did not appear before the Custom authorities. Evidence was collected and complaint was presented before Sessions Judge (Special Judge) by the Inspector of Customs. Accused pleaded not guilty to the charge and were put to trial. The third accused was proceeded against separately. The learned trial Court after appreciating the evidence led by the parties came to the conclusion that accused have committed the offences punishable under Sections 8 and 21 of the Act and recorded conviction and sentence.
4.The trial Court as noted a
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