IMPORTANT POINT
Recovery and seizure of Charas – Where search and seizure are not in accordance with mandatory prescriptions foundation of case charged against accused falls apart.

JUDGMENT

K. VINOD CHANDRAN, J.

Leave granted.

2. A search conducted on the Indo-Nepal Boarder led to recovery and seizure of 1.900 kg of charas from a Russian national, who was arrested and later put on trial. The Sessions Court convicted and sentenced the accused to ten years rigorous imprisonment for the offences punishable under Sections 8, 20 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985¹ [For brevity, ‘the NDPS Act’] and a fine of Rs.1 lakh with a default sentence of six months. The prosecution alleged that after entering the territory of India, 15 meters from the Border Pillar No.517/2 (Sub Pillar), the appellant herein was accosted and searched by a team of Sashastra Seema Bal (SSB). On detection of the contraband in his bag, a police team which was also engaged, along with the SSB team, in the combing operation at the border was summoned after which the recovery was made and the criminal law put into motion.

3. The accused on the other hand claimed that he was taken into custody on the previous day at the no man’s land and on his refusal to bribe the police, a false case was registered against him and his pet dog, accompanying him, was also taken away by the police team. The High Court on an appeal affirmed the conviction and sentence handed down by the Trial Court against which the present appeal is filed.

4. We heard Sh. R.P. Luthra, learned counsel appearing for the appellant. The original passport of the appellant, which was part of the Trial Court’s record, indicates the appellant having left Nepal on 05.11.2016, while his arrest was recorded at 7.00 A.M. on 06.11.2016. It is the contention of the learned counsel that he was produced before the learned Magistrate after 24 hours period as stipulated in the Code of Criminal Procedure, 1973² [For brevity, ‘the Cr.P.C.’]; to facilitate which the arrest was recorded later. It is argued that the contraband was planted and it was never recovered from the body of the accused nor from his possession.

5. Learned Government Counsel vehemently supported the prosecution case and contended that after exit from Nepal, the accused remained in the no man’s land till he entered the territory of India on the next day morning. Immediately after which he was arrested on detection of the contraband in his bag. There is no possibility of any plant since the total value of the contraband would be almost Twenty-three lakhs.

6. Both the Trial Court and the High Court had noted discrepancies in the evidence led by the prosecution but entered and upheld the conviction finding those to be minor. The evidence led by the prosecution is of PW1 to PW5. As we see from the deposition, the SSB team which carried out the combing operation was led by PW3, a Sub Inspector with the SSB while the police team was led by PW1, also a Sub Inspector attached to the Sonauli Police Station. PW2 was one of the Constables with the SSB who was in the team of PW3. PW4 was the I.O and PW5 was a Head Clerk attached to the Police Station, Sonauli at the time of the registration of the FIR.

7. A reading of the evidence of PW1 to PW3 indicates that it was the SSB team led by PW3, who first confronted the accused and after having detected the contraband in his bag called PW1 and his team, pursuant to which the search was conducted. It is also asserted by PW1 to PW3 that before the search was conducted, they had searched all the members of the team to ensure that no contraband was kept in their possession. It is also deposed that the accused was informed of his rights to be searched before a Gazetted Officer or a Magistrate, upon which he confessed to have purchased the contraband from Nepal with the intention of selling it in India and agreed to the search without the presence of a Gazetted Officer or a Magistrate. It is also stated that a consent letter was written by PW1, which was translated into English upon which the accused signed the documents. The translation is said to have been done by PW3, the Sub