2014 (1) TMI 740 - HC - Customs

Discharge of the offences - Recovery of 3.022 kgs of Heroin - Contravention of the provisions of the Act - Held that - it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court - there was a recovery of 3.022 kgs of Heroin at Attari Rail, Amritsar by the Inspector, Customs. The petitioner was arrested in F.I.R No. 6 dated 02.02.2010 under Section 21/23/28/29 of NDPS Act upon conscious possession and recovery of 01 kg of heroine. As per his disclosure statement made before the police (A-6), he submitted that 03 packets of heroine sized by the Customs Official on 11.12.2009 from LCS, Attari Rail, Amritsar belonged to him., On the basis of this statement, the petitioner was taken into custody. Thereafter, his statement under Section 67 of the Act and 108 of the Customs Act was recorded(A-7). While making this statement, the petitioner denied 03 kg of heroine which was recovered by the Customs Staff from Attari Rail, Amritsar on 11.12.2009, was to be delivered to him. Since the recovery of 01 kg of heroine had been effected, he is facing trial in F.I.R No. 6 dated 02.02.2010 with regard to the fact that in his disclosure statement, he had admitted the recovery of 03 kg of heroine in December, 2009, belonged to him. This statement was not made as per Section 67 of the NDPS Act. The statement was made before the Interrogating Officer Bawa Singh Sub Inspector. Subsequently, when he appeared before the Court on 01.05.2010,he denied the contents of the statement made by him (A-6). The question for consideration is that whether the statement made on 04.02.2010 (A-6) which was not as per Section 67 of the Act, can be used against him and thereafter, charges under Section 21/23/28/29 of the Act can be framed against him. Petitioner had made a disclosure statement (A-6) before Bawa Singh Sub Inspector. This statement cannot be used against him, as made under Section 67 of the Act so as to charge him with the offence of recovery of 03 packets of heroin recovered/seized by the custom official on 11.12.2010. The statement made (A-6) by the petitioner is not admissible in evidence, as per Section 26 of the Evidence Act. Moreover, penalty proceedings had been initiated against the petitioner and he has been acquitted by the department in these proceedings - continuation of the trial against the petitioner would be an abuse of the process of Court - Following decision of Radheyshyam Kejriwal vs. State of West Bengal and another 2011 (2) TMI 154 - Supreme Court of India - Decided in favour of Appellant.

Summary

Issues:
1. Quashing of order dismissing discharge application under Section 482 Cr.P.C.
2. Admissibility of confessional statement made by accused.
3. Continuation of trial post acquittal in penalty proceedings.

Issue 1: Quashing of Discharge Order
The revision petition sought to quash the order dismissing the accused's discharge application under Section 482 Cr.P.C. The complaint filed under the Narcotic Drugs & Psychotropic Substances Act, 1985, alleged recovery of heroin and subsequent admission by the accused. The charges were framed based on the statements made by the accused during investigation.

Issue 2: Admissibility of Confessional Statement
The defense argued against the admissibility of the accused's confessional statement, citing judgments by the Supreme Court. Reference was made to a case stating that a statement made in custody before the police cannot be treated as a statement under the Act. Another case highlighted that a confessional statement recorded in police custody may not be admissible under the Evidence Act. The defense contended that the accused's statement, not made under Section 67 of the Act, should not be used against him.

Issue 3: Continuation of Trial Post Acquittal
The defense further argued that since penalty proceedings against the accused resulted in acquittal, continuing the trial would amount to an abuse of the court's process. Citing a Supreme Court judgment, it was emphasized that when there is exoneration on merits in adjudication proceedings, prosecution on the same facts should not continue. The defense relied on the principle that findings in adjudication proceedings exonerating the accused should prevent the prosecution from proceeding further.

The judgment analyzed the admissibility of the accused's confessional statement, emphasizing that statements made outside the purview of Section 67 of the Act may not be used against the accused. Citing legal precedents, the court highlighted the importance of distinguishing between statements made in custody and those made under specific legal provisions. Additionally, the judgment considered the implications of acquittal in penalty proceedings on the continuation of the trial, following the principle that exoneration on merits should prevent further prosecution. Ultimately, the court allowed the petition, setting aside the order and discharging the accused of the charges framed against him.