2015 (8) TMI 339 - HC - Customs

Search and seizure without warrant Non-Compliance Appellant alleged his conviction for non-compliance of Section 42 of NDPS Act, 1985 and also that prosecution failed to establish link evidence Held that - All prosecution witnesses consistently stated that during nakabandi, appellants-accused were searched and illegal contraband was recovered from their possession Search was made on public place in transit and not in building or place thus, there was no non-compliance of any statutory provision As search was made in public place, therefore, Section 42 does not come into play and Section 43 was complied with PW-2 clearly deposed that after recovery, articles were seized and sealed and deposited in malkhana FSL Report also reveals that seal remained intact when it reached laboratory for chemical examination As no offence was registered under Customs Act thus, provisions of Section 108 would not be applicable No ground to interfere with impugned judgment Appeal dismissed Decided against appellant.

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Establishment of link evidence by the prosecution.
3. Admissibility of confessional statements under Section 108 of the Customs Act.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The appellants contended that there was a total non-compliance with Section 42 of the NDPS Act. The prosecution argued that Section 42 was not applicable as the search was conducted in a public place, thus falling under Section 43 of the NDPS Act. The court examined both Sections 42 and 43. Section 42 pertains to searches in buildings or enclosed places, while Section 43 deals with searches in public places. The court concluded that the search was conducted in a public place while the appellants were in transit, thus Section 43 was applicable and complied with. The court cited the Supreme Court judgment in Sukhdev Singh, reinforcing that Section 42 is mandatory only for enclosed places, not public ones.

2. Establishment of Link Evidence by the Prosecution:
The appellants argued that the prosecution failed to establish link evidence. The court reviewed testimonies and records, including the statements of Sohanraj Khandelwal (PW-2), who confirmed that the seized articles were properly sealed and deposited in the malkhana, with entries made in the malkhana register (Ex.P/5A). The FSL Report (Ex.P/13) indicated that the seals remained intact until the chemical examination. The court found no missing link in the evidence, thereby rejecting the appellants' contention.

3. Admissibility of Confessional Statements under Section 108 of the Customs Act:
The appellants challenged the admissibility of their confessional statements recorded under Section 108 of the Customs Act, arguing they were not given voluntarily post-arrest. The court referred to the Supreme Court rulings in Noor Aga and Raju Premji, which state that confessions under Section 108 should be scrutinized for voluntariness and are primarily for customs-related offenses. The court noted that no customs offense was registered, and the case was prosecuted under the NDPS Act based on the recovery of contraband and corroborative link evidence. Thus, the court held that the confessional statements were not the sole basis for conviction, and the prosecution had established the offense independently.

Conclusion:
The court found no merit in the appellants' arguments regarding non-compliance with Section 42, missing link evidence, or the inadmissibility of confessional statements. The conviction and sentence were upheld, and the appeal was dismissed. The appellants were directed to surrender for serving the remaining sentence, with instructions for the trial court to ensure compliance.