IMPORTANT POINT
Contraband Articles - Confessional Statement - It can form sole basis for conviction if it is proved by unimpeachable evidence and if it is of voluntary nature.

Baldev Singh, J.

1. Basharat Ali alias Arshad son of Abbas Ali and Saugawat Ali son of Mohd. Hussain, both Pakistan nationals, residents of village Bhainiya Daud, Tehsil and District Narowal (Pakistan) have filed this appeal through Superintendent, Central Jail, Amritsar. They were convicted for the offences punishable under Sections 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and under Section 3 of the Indian Passport Act, vide impugned judgment dated 5.2.2002 passed by Shri Amarjit Singh Katari, the then Additional Sessions Judge-cum-Judge, Special Court, Amritsar. Each of them was sentenced to undergo RI for a period of 20 years and to pay fine of Rs. 1 lac and in default of payment of fine, to undergo further RI for 3 years under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Each of them was also sentenced to undergo RI for a period of 20 years and to pay fine of Rs. 1 lac and in default of payment of fine, to undergo further RI for 3 years under Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Each of them was further sentenced to undergo RI for one year and to pay Rs. 500/- as fine and in default of payment of fine, to undergo further RI for one month under Section 3 of the Indian Passport Act. All the sentences were ordered to run concurrently vide impugned sentence order dated 5.2.2002. The period already spent in custody was ordered to be set off against the substantive sentence.

2. Ms. Deepika Verma, Advocate was appointed as amicus curiae to argue the appeal on behalf of the appellants. Mr. D.D. Sharma, Advocate represented the Inspector of Customs, Land Customs Station, Attari Rail, Amritsar complainant/respondent.

3. The facts of the prosecution case are that on 27.8.1997, Shri Rajan Chaudhary, Assistant Commissioner, Customs, Amritsar summoned Shri G.M. Sharma, then posted as inspector Customs, Gurmit Singh, Superintendent Customs and Dharmender Kumar Inspector Customs to his office and told them that there was a secret information that some Pakistanis would infiltrate into Indian territory carrying contraband items and that Nakabandhi be made to capture them. Shri Rajan Chaudhary, Assistant Commissioner, Customs, Amritsar further directed that the Nakabandhi be set up. After joining the Counter Intelligence Staff headed by Shri S.K. Sharma, Superintendent of Police. Then Nakabandhi was made on the night of 27.8.1997 at about 11.45 p.m. near a tube-well, about 400 yards away from Ajnala-Ramdas road in the area of village Sammowal. At about 3.30 a.m. (on 28.8.1997), the members of the Nakabandhi party noticed some movement at the Indo-Pak border. Some persons were spotted coming from Pakistan side to Indian territory. When they came nearer, they saw that the infiltrators were three in number and they were carrying something on their heads. They were challenged to stop. At this, they threw down the head loads and ran back towards Pakistan side. The members of the Nakabandhi party chased them. Two of them (both the appellants) were apprehended, while the third infiltrator, whose name was later on known as Ashique Ali succeeded in running away and could not be apprehended. Both the appellants told the members of the Nakabandhi party that they were Pak nationals. Jarnail Singh Sarpanch and Balbir Singh Panch of village Sammowal were summoned at the spot. Both the appellants were interrogated in the presence of PWs Jarnail Singh and Balbir Singh about their names, addresses and professions. Their personal search was also conducted. No incriminating articles were recovered from the personal search of Basharat Ali alias Arshad-appellant. One pistol, six live cartridges and a magazine were recovered from the personal search of Agawam Ali- appellant. Option was sought from the appellants as to whether the bags carried by them were to be searched in the presence of a Magistrate or a gazetted officer. This option was given orally at the spot.