2003 (9) TMI 710 - SC - Customs

Whether The search and seizure can be faulted for the reason of the same having taken place not on spot but in the customs office? Held that - Section 42(2) is not applicable when search seizure etc. is conducted by a Gazetted Officer under Section 41(2) and (3), the further contention of Mr. Jain that an attempt was made by the respondent to fill up lacuna to show compliance of Section 42(2) of the NDPS Act as a result of observations made in the order granting bail to the appellants as noticed hereinbefore becomes inconsequential and, therefore, it is not necessary to examine it. The impugned judgment of the High Court cannot be faulted. Thus, sustaining the conviction and sentence of the appellants, the appeals are dismissed.

Issues Involved:
1. Voluntariness of statements under Section 67 of the NDPS Act.
2. Non-examination of independent witnesses for recovery.
3. Legality of search and seizure conducted at the Customs Office.
4. Compliance with Section 42(2) of the NDPS Act by a Gazetted Officer.

Detailed Analysis:

1. Voluntariness of Statements under Section 67 of the NDPS Act:
The appellants challenged the voluntariness of their statements recorded under Section 67 of the NDPS Act, claiming they were obtained through torture and harassment. The defense argued that the delay in recording the statements indicated they were involuntary. However, the court noted that the statements were recorded by officers of the Department of Revenue Intelligence, who are not considered police officers under Section 25 of the Evidence Act, 1872, making the statements admissible. The court found no evidence of torture or harassment, as the accused did not complain to the Magistrate when produced. The statements were deemed voluntary and formed a valid basis for conviction.

2. Non-examination of Independent Witnesses for Recovery:
The appellants contended that the recovery of contraband was doubtful due to the non-examination of independent witnesses, relying on the precedent set in Pradeep Narayan Madgaonkar v. State of Maharashtra. The court, however, found that the evidence of police witnesses, though scrutinized strictly, cannot be discarded solely because they belong to the police force. Given the voluntary confessional statements, the court held that the recovery was credible despite the non-examination of independent witnesses.

3. Legality of Search and Seizure Conducted at the Customs Office:
The defense argued that the search and seizure should have occurred on the spot rather than at the Customs Office. The court referenced Khet Singh v. Union of India, which upheld the admissibility of evidence obtained through an illegal search or seizure if the contraband was not meddled with. The court found no allegations of tampering with the contraband and concluded that conducting the seizure at the Customs Office was justified due to logistical reasons, including the need for a Hindi-speaking officer.

4. Compliance with Section 42(2) of the NDPS Act by a Gazetted Officer:
The appellants argued that the failure to comply with Section 42(2) of the NDPS Act, which mandates forwarding written information to a superior officer, vitiated the prosecution. The court examined Sections 41 and 42 of the NDPS Act, noting that an empowered Gazetted Officer conducting the search and seizure does not need to comply with Section 42(2). The High Court had correctly concluded that since the Gazetted Officer acted under Section 41, compliance with Section 42(2) was unnecessary. The court dismissed the contention that the respondent attempted to fill a lacuna post-bail, deeming it inconsequential.

Conclusion:
The Supreme Court upheld the High Court's judgment, confirming the convictions and sentences of the appellants. The appeals were dismissed, affirming the legality of the statements, recovery, search, and seizure procedures, and the non-applicability of Section 42(2) compliance for Gazetted Officers under the NDPS Act.

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