2013 (11) TMI 859 - HC - Customs

Conviction under NDPS Act - Admissibility of evidence - Whether or not the statement made by the accused before the Customs Officer is admissible in evidence - Held that - retracted confessional statement made by an accused before the Customs Officer, alone is not enough to bring home guilt to the accused. It is required to be substantially corroborated by other independent and cogent evidence. It is admitted fact that the alleged confessional statements of the accused in the present case are retracted ones. Therefore, prosecution was required to prove its case by leading corroborative and cogent evidence - The prosecution projected these accused to connect the co-accused/appellants, with the crime. However, once the story put forth by the prosecution qua accused, Harbans Singh and Baljit Kaur stands disbelieved by the trial Court, on the same set of evidence, the story qua remaining three accused, also becomes doubtful. In the instant case, the owner of the car from which the alleged recovery was effected, has not been associated by the prosecution. It has also not been able to make out a case that the accused-appellants were earlier known to each other and were in conspiracy. Non examination of witness - held that - PW-6, H.K. Kaushik, Inspector, Customs and Excuse, deposed that the case property was never produced before the Court after 20.07.1992. The alleged recovery in the instant case is of 20.07.1992 itself. On 11.12.1992, Judicial Magistrate 1st Class, Amritsar, came to the Customs Office. The seizing officer took out the case property from the Malkhana and the same was produced before the Magistrate - it is not proved that the present surviving appellant was in conscious possession of the case property. He was not aware as to what luggage he was carrying for his master, being the driver of the car. He has also explained as to how he came in possession of the contraband in the form of luggage. The defence version put forth by the accused appears believable and probable than the prosecution version. So, the benefit is extended to the accused/appellant - case is full of discrepancies, the alleged recovery has not been proved beyond all reasonable doubts, and in the absence thereof, benefit has to go to the accused - Appellant is so poor that even after grant of bail on 27.01.2004, he could be released only on 26.11.2007, as he could not furnish bail bonds earlier - Therefore, The appellant is stated to be on bail, his bail bonds shall stand discharged - Decided in favour of appellant.

Summary

Issues Involved:
1. Admissibility of statements made before Customs Officers.
2. Contradictions in prosecution witnesses' statements.
3. Non-production of case property in court.
4. Handling and custody of case property and samples.
5. Lack of independent witness examination.
6. Conscious possession of contraband by the accused.

Issue-wise Detailed Analysis:

1. Admissibility of Statements Made Before Customs Officers:
The primary issue was whether the statements made by the accused before the Customs Officer were admissible in evidence. The court referred to the Supreme Court's decision in *Noor Aga v. State of Punjab*, which held that customs officers, when exercising powers of prevention, detection, and investigation of crimes, are considered police officers under Section 25 of the Indian Evidence Act. Therefore, confessions made to them are inadmissible unless corroborated by independent evidence. The court concluded that a retracted confessional statement made before a Customs Officer alone is not sufficient to convict the accused without substantial corroboration.

2. Contradictions in Prosecution Witnesses' Statements:
The defense highlighted major contradictions in the statements of prosecution witnesses. Specifically, PW-6, H.K. Kaushik, stated that the case property was never produced in court after the alleged recovery date, which cast doubt on the integrity of the evidence. The court found these contradictions significant enough to question the reliability of the prosecution's case.

3. Non-Production of Case Property in Court:
The defense argued that the case property was not produced in court, which was corroborated by PW-6's testimony. This failure to present the case property undermined the prosecution's case, as the chain of custody and the integrity of the evidence could not be verified.

4. Handling and Custody of Case Property and Samples:
The court noted irregularities in the handling and custody of the case property and samples. The seal used on the samples was not handed over to independent witnesses, and the samples sent for chemical examination were not deposited in the Malkhana. These lapses raised doubts about the authenticity and integrity of the evidence presented.

5. Lack of Independent Witness Examination:
The prosecution did not examine independent witnesses Ashok Kumar and Vikram Bhandari, who were present during the alleged recovery. The court cited *Noor Aga* to emphasize that the non-examination of material witnesses could lead to adverse inferences against the prosecution. The absence of testimony from these witnesses weakened the prosecution's case.

6. Conscious Possession of Contraband by the Accused:
The court found that the prosecution failed to prove that the accused was in conscious possession of the contraband. The accused, Kashmir Singh, was a hired driver unaware of the contents of the luggage he was transporting. The defense's version appeared more plausible, leading the court to extend the benefit of doubt to the accused.

Conclusion:
The court concluded that the prosecution failed to prove the case beyond a reasonable doubt due to discrepancies, lack of corroborative evidence, and procedural lapses. Consequently, the appeal was allowed, the impugned judgment and order dated 27.04.2000 were set aside, and the accused was acquitted of all charges. The appellant's bail bonds were discharged.