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Gujarat High Court
Judgename :M.R.CALLA, R.M.Doshit
SUMARKHAN SIDIQKHAN SINDHI - Appellant
Versus
COLECTOR OF CUSTOMS - Respondent
CRIMINAL APPEAL 828 of 1990
Decided On : 03/10/1998
It is very clear that it was not the case of the search of the `person as such. The information was that the contraband was kept in a particular premises belonging to the appellant and it was this premises, which was searched and as such there was no question of taking the appellant before any Gazetted Officer or a nearest Magistrate.
It is clear that the search was conducted on the basis of the warrant issued by the Collector, Central Excise. Collector, Central Excise himself had supervised the raid and, therefore, there is no question of taking the appellant to any Gazetted Officer, more particularly when it was not a case of search of any person as such but the search of the premises.
[Para 7]
It is held that there is no delay in sending the representative samples to the Chemical Analyzer and in absence of anything to show that the seals over the remaining material were tampered with, it cannot be said that any prejudice has been caused to the appellant or the delay in producing the muddamal before the Court has entailed any fatal consequence.
[Para 8]
The recovery had ofcourse been made in the presence of the appellant and the Oradi from which the recovery had been made was in effective possession of the appellant.
The whole chain and series of the facts and the circumstances in which the brown sugar was found from the room in the possession of the appellant is sufficient to show that it was recovered from the possession of the appellant and the appellant cannot escape the liability and consequences of the same.
[Para 9]
On the basis of the contents of the Forensic Science Laboratory Report itself, it is very clear that the seals were there on samples, it was Government seal of Superintendent, Central Excise, P&I, Ahmedabad Division No. 4 and the argument of the learned counsel in this regard, as has been referred above, cannot be sustained.
It is therefore, clear that the Forensic Science Laboratory report alongwith the covering letter was marked as Exh.53. Merely because Exh. 53 has not been written on the enclosure i.e. report dated 16.3.1989 and Exh. 53 has been mentioned only on the covering letter, it cannot lead to the conclusion that the Forensic Science Laboratory Report had not been exhibited. We find that it has been exhibited, but the exhibit mark has been written only on the covering letter, which refers to the enclosed report. Merely because the Trial Court chose to write Exh.53 on the covering letter and considered it sufficient to treat the Forensic Science Laboratory Report itself as duly exhibited because it was enclosed with the covering letter, it cannot be said that this course of action and procedure adopted by the Presiding Officer can be used to raise the argument that the Forensic Science Laboratory Report has not been exhibited.
It is a public document and this document cannot be discarded merely because Exh.53 has been mentioned on the covering letter and not written on the Forensic Science Laboratory Report itself.
[Para 10]
The disclosure made by the present appellant is at Exh.29 (mark 9/2) in which he has categorically stated that on 24.2.1989 his house was searched and in this search 2.70 Kg. brown sugar contained in 3 bags were recovered when he himself was present at the time alongwith others, the Panchanama was prepared, the papers were seized and he had also made voluntary disclosure of the details of such papers, which support the case of the prosecution. Indentity of the appellant is fully established inasmuch as he has given left hand thumb impression at the end of this statement before Mr.M.S. Shah, Superintendent (P) Central Excise and this disclosure made by him before the Superintendent (P), Central Excise could be taken into consideration and thus the case of conscious possession against the present appellant is fully established and we also find that the appellant had failed to account for the possession of this contraband material and, therefore, presumption under Sec. 54 of the NDPS Act could also be taken against him.
[Para 15]
(b) Narcotic Drugs & Psychotropic Substances Act, 1985 - FSL Report - Its reliability - It is contended that no scientific test conducted - Mentioning of physical & chemical examination of sample & applied various test to prove elements of opium - Held, it is reliable.
All the above tests have been found to be positive and against Thin-layer chromatography pattern test, it has been mentioned that it was comparable with control Heroin, Morphine, Papaverine, Narcotine, Phenobarbitone and Methaqualone. On the basis of the test applied in chemical analysis, the opinion has been given by the Forensic Science Laboratory and it cannot be said that the Report has been given without applying any scientific test. The author of the Report has referred to the aforesaid test and the opinion had been rendered only on the basis of the result of the tests; as aforesaid applied on the course of analysis.
[Para 11]
(c) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 21 - Delay in sending article to Court - Representative sample sent promptly to FSL - No allegation of tampering of the sample - Held, delay is not fatal.
The representative samples must be sent to the Forensic Science Laboratory or Chemical Analyzer at the earliest possible opportunity without any delay, but the depositing of the muddamal with the Court is concerned, the same cannot be placed at the same footing, more particularly when it has come on record that immediately after the recovery, representative samples were taken and the samples as well as the remaining material were sealed and there is no allegation that there was any tampering of any of the seals while the muddamal was produced before the Court. In such cases, any lapes of time in producing the muddamal before the Court cannot be fatal.
[Para 8]
(d) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 21 - Delay in sending sample to FSL - Sample seized on 24.2.1989 & received in FSL on 28.2.1989 - Held, delay is not fatal.
Samples had been received in the Laboratory on 28.2.1989 and it is recorded in the judgment of the Trial Court that investigation was going on, on 25.2.1989 and there were two public holidays in between. Thus it cannot be said that there was any delay in sending the samples to the Laboratory.
[Para 8]
(e) Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 54 - Presumption of guilt - Accused required to explain possession satisfactorily - Contraband recovered from the premises under the control of the accused & in his presence - Accused himself made disclosure statement admissible under Sec. 53-A.
The appellant had ample opportunity to explain the recovery of the contraband, which was recovered from the premises, which was under his control, particularly when the recovery was effected in his presence.
Enough material has come on record to show that it could not be taken to be a case of unconscious possession or that the appellant did not know at all that the contraband material was there in the room in which he was living.
[Para 12]
(f) Evidence Act, 1872 - Sec. 25 - Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec. 67 - Confession made to Police Officer can not be proved against the person accused of any offence - Officer of Central Excise are not the police officer under Sec. 53 - Statement made before the officer is admissible in evidence.
The argument of the learned counsel for the appellant that the disclosure made by the appellant to the officers of the Central Excise Department should not be made use of and that the same is hit by Sec. 25 of the Evidence Act is wholly misconceived and contrary to the law laid down by the Supreme Court as well as this Court.
[Para 14]
( 1 ) THIS Criminal Appeal under Sec. 374 (2) of the Cr. P. C. is directed against the judgment and order of conviction and sentence passed against the present appellant by the Addl. Sessions Judge, District Kheda at Nadiad in sessions Case No. 36 of 1989 whereby the appellant-Sumarkhan Sidiqkhan Sindhi, resident of Dentami (Rajasthan) has been convicted under Sec. 21 of the Narcotic drugs and Psychotropic Substances Act, 1985 (which will be hereinafter referred to as the N. D. P. S. Act) and sentenced to 10 years R. I. with a fine of rs. 1,00,000/- on 8-8-1990. It is pointed out by the learned Counsel for the appellant that the appellant was in jail during the course of trial from 24-2-1989, i. e. , the date of his arrest and is serving the sentence at present in Sabarmati Jail of ahmedabad. On 23-9-1997 an order was passed in Misc. Application No. 5276 of 1997 that this Appeal is to heard with Criminal Appeal No. 1037 of 1990 and accordingly this Criminal Appeal No. 828 of 1990 was listed for final hearing in the Board before us on 2-2-1998 at item No. 24. On the request of the learned counsel for the appellant, the matter was taken out of turn. However, the record of the Criminal Appeal No. 1037 of 1990 shows that it is not a ready matter. The criminal Appeal No. 1037 of 1990, which is directed against the acquittal of other co-accused persons, cannot be heard unless the service is complete. The learned counsel for the appellant submits that since the present appellant is serving the sentence since long, this Appeal may be heard. Accordingly the matter was taken up for final hearing.
( 2 ) THE facts leading to the present Appeal may be succinctly and briefly narrated as under : (1) The Central Excise Department received an information on 23-2-1989 that the present appellant residing at village Ramnagar of Taluka Nadiad was in possession of brown sugar at his residence. He had procured the brown sugar from Barmer, which is a town in the State of Rajasthan near Indo-Pak border and that he was trying to dispose of the same. (2) On receipt of this information a raid was arranged at the house of the appellant on 25-2-1989 and the house was searched in presence of Panchas. When the central Excise Officers went to the house of the appellant along with Panchas, the appellant and three other persons, who were accused Nos. 1, 2, 3 and 4 in the trial, were present on the spot. On an inquiry, accused No. 1 said that he had 3 packets of brown sugar. A yellow bag was shown hanging against the wall. On the search of this yellow bag, a Khakhi bag was found inside it. The Khakhi bag contained 3 small cloth bags and each cloth bag contained plastic bags and each of these three plastics bags contained brown sugar, details of which are as under :- plastic bag No. I (Cloth bag containing plastic bag contained net 900 gr. of brown sugar) plastic hag No. 2 (Cloth bag containing plastic bag contained net 800 gr. of brown sugar) plastic bag No. 3 (Cloth bag containing plastic bag contained net 1 kg. brown sugar.) the net total weight of brown sugar contained in all the 3 packets was 2. 70 kg. , the value of which was assessed to be worth Rs. 1. 35 lakh. (3) From each packet three samples, each of 10 gr. of brown sugar, were taken and in all 9 samples, each containing 10 gr. of brown sugar were taken out. All these samples were seized in presence of the four accused persons including the appellant as also the Panchas. The full particulars of the packets have been mentioned in the Panchanama. Each sample was sealed and all the four accused and four Panchas, besides the Superintendent, Central Excise, signed on it. The remaining brown sugar was kept in each plastic bag, which was kept in cloth bag, from which the samples were taken out. Each cloth bag was put in polythene bag separately and each was sealed. All the polythene bags were kept in the Khakhi bag and the Khakhi bag was put in a tin, which was also sealed with the Government s
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