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2008 DAILYLAW 1360 (DEL)

C. P. VASHIST v. ASHFAQ

2008-03-04

P K Bhasin

body2008
P.K.BHASIN, J: 1. The present appeal has arisen from the judgment dated 22.03.1997 passed by the learned Additional Sessions Judge, New Delhi in Sessions Case no. 36/1997 whereby the respondent, who was charged for the offences under Sections 132 and 135(1)(a) of The Customs Act, 1962 and Sections 18 and 28 read with Sections 8 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act in short), was acquitted of all these offences. 2. Brief facts necessary for the disposal of this appeal are that on 28.01.1988 respondent Ashfaq was booked with Thai Airways Flight No.TG-935 for going to Bangkok. At the Customs Counter at I.G.I. Airport, New Delhi he declared that he was carrying US Dollars 500 only as FTS. While he was proceeding towards the Security Check he was intercepted by the Customs Officer(PW-1) and on being asked as to whether he was carrying any Indian or foreign currency or any narcotic drug the respondent replied that he was carrying US dollars 500 only. Thereafter, the respondent was asked if he had any baggage on which he informed that his checked-in suitcase was lying in the Departure Hall. He was then asked to bring his checked-in baggage at the Customs Counter which he did. PW-1 called two officials of Thai Airways(PW-3 and PW-4) on duty at the Airport so that the suitcase of the respondent could be searched in their presence. On PW-1 entertaining some suspicion, base of the suitcase was pierced with the help of a sharp edged knife and some oily substance suspected to be Narcotic Drug weighing 3.750 kgs. was recovered. The respondent could not produce any documentary or other evidence for its lawful export. The said black coloured oily substance was then seized under Section 110 of the Customs Act, 1962 and the NDPS Act and three representative samples of the substance were taken in separate packets and were sealed with the seal of Customs Department and rest of that substance was kept in a separate cardboard box and the same was also sealed with the Customs seal.These proceedings were recorded in a panchnama (Ex. PW-1/C) by the Customs Officer(PW-1). PW-1/C) by the Customs Officer(PW-1). On being questioned by the Customs Officer(PW-1) about the substance recovered the respondent showed his ignorance and claimed that the said suit case did not belong to him and that the same had been booked in his name and on his ticket by one Avinash Chander Dhawan who was still at the Airlines Counter for getting his clearance done. It is the further case of the prosecution that thereafter the respondent was taken to the Airline Counter and he was asked to identify the person named by him and then on the pointing out of the respondent that Avinash Chander was also apprehended. 3. The respondent as well as Avinash Chander were then produced before Sh. R.D. Gupta, (PW-2), who on that night was the Air Customs Superintendent and was also on duty at the Airport when these two persons were apprehended, and he recorded their separate statements under Section 108 of the Customs Act, 1962 (Ex. PW-2/A and Ex. PW-2/B). In his statement made under Section 108 of the Customs Act the respondent claimed that the foreign currency in his possession was provided to him by Avinash Chander after purchasing it from Connaught Place in his (Ashfaqs) name and further that when Avinash Chander booked the suit case in his name he had become suspicious but had kept quiet since Avinash had paid for his Bangkok trip. Avinash Chander in his statement under Section 108 admitted that he had come to the Airport for going to Bangkok along with Ashfaq and one Nanak Ram. He disclosed that he had prepared a plan with Nanak Ram that he (Nanak Ram) would procure opium from Bareilly and get it packed in a suitcase in such a way that no one would come to know about it and he (Avinash Chander) would arrange three tickets from Delhi to Bangkok. The opium was to be taken to Bangkok for a person named Devi who had promised to pay twice the price that was paid for its purchase and the money was to be shared by him (Avinash Chander) and Nanak Ram. Accordingly he arranged three tickets for Bangkok and Nanak Ram brought opium to Delhi concealed in a suitcase and left the same at his house for being taken to the airport in the evening. Accordingly he arranged three tickets for Bangkok and Nanak Ram brought opium to Delhi concealed in a suitcase and left the same at his house for being taken to the airport in the evening. It was further stated that Ashfaq was chosen to carry the opium to Bangkok as he was going abroad for the first time and the Custom Officers would not suspect him and in case he would get caught he (Ashfaq) alone would be held responsible as goods would stand booked in his name. Avinash Chander in his statement made to the Customs Officer also stated that Ashfaq was not aware that they had hidden opium in the suit case and that he was under the impression that he was being taken for a leisure trip by them. Avinash Chander further disclosed that he and Ashfaq reached the Airport in a taxi and deliberately sent Ashfaq late for customs clearance thinking that his baggage would not be searched properly in case he goes late for clearance. 4. The prosecution case is that when all these proceedings were being conducted on the Airport the third associate of Avinash Chander and Ashfaq, namely, Nanak Ram, who had been named by Avinash Chander, had boarded the plane to Bangkok and the flight had taken off and so he could not be apprehended. 5. Out of three samples sealed at the spot, two of them were later on forwarded to the Central Revenue Control Laboratory for chemical analysis of the black oily substance suspected to be narcotics drug recovered from the suit-case of the respondent and the chemical analysts report (Ex. PW-1/N) confirmed the sealed substance to be opium. 6. A criminal complaint was then filed in Court by the Customs Department against Ashfaq, respondent herein, and Avinash Chander for the offences under Sections 132 and 135 of The Customs Act, 1962 and Sections 18, 28 read with Sections 8 and 23 of the NDPS Act. Avinash Chander expired during the pendency of the trial proceedings and so the proceedings against him stood abated. The prosecution had examined only four witnesses to prove its case. Two witnesses(PWs 1 and 2) were the Customs Officials and both of them had supported fully the case set up in the complaint.The other two witnesses were panch witnesses(PWs 3 and 4) but both of whom had turned hostile. The prosecution had examined only four witnesses to prove its case. Two witnesses(PWs 1 and 2) were the Customs Officials and both of them had supported fully the case set up in the complaint.The other two witnesses were panch witnesses(PWs 3 and 4) but both of whom had turned hostile. In his statement recorded under Section 313 Cr.P.C. the respondent denied the allegations levelled against him by the prosecution and pleaded innocence and claimed that he had been falsely implicated in the case and nothing was recovered from him. The learned trial Court vide its judgment dated 22.03.1997 acquitted the respondent. Feeling aggrieved by the acquittal of the respondent the present appeal was filed by the complainant. 7. At the time of hearing of this appeal there was no appearance from both the sides which showed that counsel for the parties were not really interested in advancing any arguments. Since the trial Court record was available with this Court I decided to dispose of the appeal on merits instead of dismissing it for non-prosecution. 8. In an appeal against acquittal the appellate Court has to keep in mind certain guidelines which have been laid down by the Apex Court in its decisions which had arisen out of judgments of acquittal. In State of Punjab Vs. Ajaib Singh and Ors. (2005) 9 SCC 94 , it was observed by the Honble Supreme Court that: 11. This being an appeal against acquittal we have with the assistance of counsel for the parties gone through the evidence on record with a view to find whether the view favourable to the accused taken by the High Court is based on the evidence on record and is reasonable. It is well settled that in an appeal against acquittal, the appellate court is entitled to re-appreciate the evidence on record, but having done so it will not interfere with the order of acquittal unless it finds the view of the court acquitting the accused to be unreasonable or perverse. If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed. In an earlier decision also reported as AIR 2000 SC 2212 , Narinder Singh and anr. V. State of Punjab, Honble Supreme Court had observed as under: 12. If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed. In an earlier decision also reported as AIR 2000 SC 2212 , Narinder Singh and anr. V. State of Punjab, Honble Supreme Court had observed as under: 12. The High Court while considering the appeal against acquittal is not exercising any extra ordinary jurisdiction. Its power to consider and decide the appeal against the judgment of acquittal is same as against the judgment of conviction. However, there are certain guidelines. One is that if there are two views on evidence which are reasonably possible one supporting acquittal and the other indicating conviction. High Court in an appeal against judgment of acquittal should not interfere merely because it feels that it would as a trial Court have taken a different view. High Court will certainly interfere if it finds that the judgment of acquittal is manifestly erroneous and that the trial Court has acted with material irregularity or its appreciation of evidence lacks coherence or it has made assumptions which are unwarranted or its evaluation of evidence is such as to shock the sense of justice and which has led to miscarriage of justice or its reasoning is unintelligible or defies logic or its conclusions are against the weight of the evidence. 9. Now, keeping in mind these views of the Supreme Court it is to be seen if the impugned judgment in the present case can be said to be unreasonable or perverse. The trial Court has acquitted the respondent for the charges under the NDPS Act on the ground that requirement of law as contemplated under Section 57 of the NDPS Act had not been followed and further that even the public prosecutor had conceded during the course of arguments that after the apprehension of the accused provisions of the NDPS Act had not been followed. As has been noticed earlier, the customs department was unrepresented in this matter when it was taken up for hearing. I have gone through the grounds of challenge taken up in this appeal and I find that even in the memorandum of appeal the appellant has not claimed that there was compliance of Section 57. As has been noticed earlier, the customs department was unrepresented in this matter when it was taken up for hearing. I have gone through the grounds of challenge taken up in this appeal and I find that even in the memorandum of appeal the appellant has not claimed that there was compliance of Section 57. All that has been stated is that the learned trial Court has failed to take notice of the legal position that the requirement of making of a report, as provided under Section 57 of the NDPS Act, is only directory and not mandatory. This, in fact, shows that the learned prosecutor representing the customs department before the trial Court had rightly conceded non-compliance of the provisions of the NDPS Act. 10. Section 57 reads as under:-57. Report of arrest and seizure-Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. In the present case there is no evidence whatsoever to the effect that the Customs Officer(PW-1) who had apprehended the respondent and searched his checked-in baggage had thereafter complied with the aforesaid requirement of Section 57. All that he deposed was about his intercepting the respondent at the airport while he was going for security check and asking him as to whether he was carrying with him any prohibited substance and then about his having asked the respondent to bring in his checked in baggage and recovery of opium from the suit case which the respondent brought. He did not claim that he had made any report about the apprehension of the respondent and the seizure of opium from his baggage to his immediate superior. In a recent judgment reported as 2007(1) SCC 450 , Dilip and anr. v. State of M.P., the Honble Supreme Court while reiterating its view expressed in its earlier decisions that the provisions of Section 57 are not mandatory observed about the effect of non-compliance thereof as under: 15. Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case. 11. Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case. 11. In an earlier judgment also which is reported as 2001 (1) JCC 144 , Gur Baksh Singh Vs. State of Haryana Honble Supreme Court had observed as under(in para no. 9) It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article.(emphasis laid) .12. Similarly in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 Honble Supreme Court while dealing with the provisions of Sections 52(which has also notbeencompliedwithinthe presentcase) and 57ofthe NDPS Acthad held as under(in para no. 24):-24. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such noncompliance has caused prejudice and resulted in failure of justice. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such noncompliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions .then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.(emphasis laid) 13. Since, in the present case, PW-1 had not said in his evidence for his having not made any report about the arrest of the respondent and seizure of opium from his baggage, as required under Section 57, his evidence cannot be accepted and recovery of opium from the baggage of the respondent becomes doubtful. There is no doubt that evidence of the official witnesses of recovery can be made the basis of conviction but in the present case taking into consideration the fact that recovery officer(PW-1) did not comply with the provisions of Section 57 and both the independent witnesses of recovery, namely, PW-3 N.C.Sharma and PW-4 Ripu Anand, both of whom were associated by PW-1 at the time of recovery of the baggage of the respondent, have not supported the case of the complainant the evidence of PW-1 becomes unreliable and has been rightly not relied upon by the learned trial Court. 14. There is another reason also for not accepting the evidence of the recovery officer, PW-1 C.P.Vashisht. Under Section 52(3) of the NDPS Act it is provided that a person arrested and any article seized under Sections 41(2), 42, 43 or 44 of the NDPS Act has to be forwarded without unnecessarily delay to the officer-in-charge of the nearest police station or an officer empowered under Section 53 and it is further provided under sub-section 4 that the authority or officer before whom the arrested person or the seized article is produced shall with all convenient dispatch take such measures as may be necessary for the disposal according to law of the arrested person or the seized article. In the present case, PW-1 has not stated anything in his evidence as to what he had done with the narcotic substance which he claimed to have recovered from the baggage of the respondent after taking the same into possession. There is also no evidence to the effect as to when the representative samples of the recovered substance suspected to be opium was sent for chemical analysis to the CRCL(Central Revenues Control Laboratory) and where the samples were kept before being sent to CRCL. In the absence of any link evidence in this regard also the evidence of the recovery officer(PW-1) becomes unreliable. .15. Before the trial Court the complainant had also sought conviction of the respondent on the basis of a statement allegedly made by him before PW-2 Shri R.D.Gupta who was posted as Air Customs Superintendent at the IGI Airport on the night of 21-08-1988. That statement is Ex. PW-2/A and according to PW-2 it was a statement recorded by him under Section 108 of the Customs Act. In his evidence PW-2 claimed that since Ashfaq had claimed that since he was illiterate he had asked one cleaner on duty at the airport to write the statement of Ashfaq .and then that cleaner Shri Ram Kishore wrote that statement Ex. PW-2/A. The witness claimed that Ashfaq signed that statement voluntarily after it had been read over and explained to him and it had been admitted that the same was correctly recorded. The learned trial Court had not placed any reliance on this statement of the respondent on the ground that there was no evidence adduced by the complainant to show that PW-2 to show that PW-2 was competent to record the statement under Section 108. I have also perused the record of the trial Court and I have also find that there is nothing on record to show that PW-2 was competent to record a statement under Section 108 of the Customs Act. The scribed of the statement, namely, Ram Kishore had also not been examined and his non-examination also renders this statement to be doubtful. In any case, as has been noticed already, the respondent had not admitted in this statement, although he has denied having made any such statement, that he knew that there was opium in his checked in baggage. The scribed of the statement, namely, Ram Kishore had also not been examined and his non-examination also renders this statement to be doubtful. In any case, as has been noticed already, the respondent had not admitted in this statement, although he has denied having made any such statement, that he knew that there was opium in his checked in baggage. On the contrary, he had exculpated himself by claiming that he did not know as to what had been kept in the suit case by Avinash Chander(the deceased co-accused of the respondent) while booking that suit case in his(respondents) name. There was, thus, no confession of an offence made by the respondent. Therefore, the learned trial Court had rightly ignored the afore-said statement Ex. PW-2/A. 16. Since, apart from the recovery of opium from the suit case of the respondent, which recovery has not been found to have been established by reliable evidence, there was no other recovery claimed by the complainant from the possession of the respondent he was rightly not convicted even for the offences under the Customs Act by the learned trial Judge. 17. On an overall appreciation of evidence, I am satisfied that there is no infirmity in the reasons assigned by the learned trial Court for acquitting the respondent and there being no perversity in the findings of the trial Judge this appeal against acquittal of the respondent deserves to be dismissed and is accordingly hereby dismissed.