2007 (5) TMI 648 - SC - Customs

Smuggling - psychotropic substance - non-compliance with the mandatory provisions of Section 42(2) of the Act - Held that - the High Court was right in coming to the conclusion that Section 42 of the Act was not attracted to the facts of this case. In the instant case on information received by PW-2 who communicated the same to PW-1 the witnesses went to the bus stand where the person carrying the drug was expected to arrive - The appellant was therefore not searched and arrested in exercise of power of arrest search and seizure under Section 42 of the Act. Section 42 applies to a case where the officers concerned on information received or having reason to believe from personal knowledge that any offence has been committed in relation to any drug or psychotropic substance etc. and which is kept or concealed in any building conveyance or enclosed place may between sunrise and sunset enter into and search any building conveyance or place. The High Court has not accepted the involvement in the conspiracy of Hiralal who in his confessional statement claimed to have handed over the contraband to appellant Peter John. If the confessional statement of Hiralal is discarded there remains no evidence except his own confession to implicate the appellant Peter John - appellant Peter John is also entitled to the benefit of doubt. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Compliance with Section 50 of the Act.
3. Examination of independent witnesses.
4. Voluntariness and reliability of confessional statements.
5. Chemical Analyst's report and its implications on sentencing.
6. Sufficiency of evidence against the co-accused.

Detailed Analysis:

1. Compliance with Section 42 of the Act
The appellants argued that their conviction was unjustified due to non-compliance with the mandatory provisions of Section 42(2) of the Act. The High Court held that Section 42 was not applicable as the arrest and seizure took place at a bus stand, not in a building, conveyance, or enclosed place. The Supreme Court concurred, stating that Section 43 was applicable, which does not require the information to be taken down in writing or sent to a superior within 72 hours.

2. Compliance with Section 50 of the Act
The appellants contended that Section 50's mandatory provisions were not complied with, arguing that they were not informed of their right to be searched in the presence of a Gazetted Officer or Magistrate. The Supreme Court referred to the decision in "State of H.P. vs. Pawan Kumar," which clarified that Section 50 does not apply to bags or containers. Since the appellant was carrying a plastic bag, Section 50 was deemed inapplicable.

3. Examination of Independent Witnesses
The appellants argued that the failure to examine independent witnesses who were present during the search was fatal to the prosecution's case. The Supreme Court noted that while the absence of independent witness testimony could lead to suspicion, it does not automatically invalidate the prosecution's case. The evidence of the official witnesses was scrutinized with caution, and the courts found no reason to doubt their credibility.

4. Voluntariness and Reliability of Confessional Statements
The appellants claimed that their confessions were not made voluntarily and were subsequently retracted. The Trial Court and the High Court found sufficient corroborative evidence apart from the confessions to establish the appellants' guilt. The Supreme Court agreed, stating that the confessions, along with other reliable evidence, were sufficient to prove complicity.

5. Chemical Analyst's Report and Its Implications on Sentencing
The appellants argued that the Chemical Analyst's report did not specify the proportion of Diazepam, which could affect sentencing. The Supreme Court noted that the quantity of Diazepam seized (1.528 kg) was well above the threshold for a commercial quantity (500 grams), making the case fall under Section 22(c) of the Act. Therefore, the argument regarding the analyst's report was dismissed.

6. Sufficiency of Evidence Against the Co-Accused
For appellant Peter John, the High Court relied on his confessional statement to uphold his conviction. However, the Supreme Court found that the same benefit of doubt given to co-accused Hiralal should extend to Peter John. The confessional statements were retracted, and there was no other reliable evidence against Peter John. The Supreme Court concluded that it was not safe to uphold his conviction based solely on the retracted confession, particularly when the co-accused was acquitted.

Conclusion:
The Supreme Court dismissed the appeal of appellant Ravindran, upholding his conviction and sentence. However, the appeal of appellant Peter John was allowed, and his conviction and sentence were set aside, granting him the benefit of doubt. He was ordered to be released forthwith unless required in connection with any other case.

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