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TMI Blog2013 (7) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that whoever abets or is a party to a criminal conspiracy to commit an offence punishable under Chapter IV - then notwithstanding anything contained in Section 116 of the IPC such person shall be punishable with the punishment provided for the offence – decided against appellant. - CRA No.1192-DB of 2010 - - - Dated:- 4-7-2013 - Hemant Gupta And Ritu Bahri,JJ. For the Appellants : M/s Vaibhav Narang, Vineet Sharma, Aman Dhir Ms. Smriti Dhir, Advocates For the Respondent : Mr. D. D.Sharma, Advocate JUDGMENT Hemant Gupta, J. The instant appeal is preferred by Mohammad Rashad son of Yasin Muhammad, Nasreen Akhtar and Jamir @ Manu against the judgment of conviction and order of sentence dated 16.10.2010 passed by the Additional Session Judge, Amritsar, vide which appellants namely Mohammad Rashad and Nasreen Akhtar were convicted for the offences punishable under Sections 21, 23 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter called as 'the Act') and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.1,50,000/- on each count, whereas appellant Jamir @ Manu was convicted for an offence pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mt. Devi, 40 small size capsules concealed in her inner clothes and hair band were recovered. 1.090 Kilogrammes net heroin was recovered from these 77 capsules (75 small and 2 big) when cut opened with knife. 8 small poly bags containing 0.485 Kilogrammes of heroin were also recovered from the false cavities in the sandals worn by Nasreen Akhtar. The total quantity of heroin recovered from both the accused came out to be 4.185 Kilogrammes net. The recovered material was tested with the drug testing kit and the same was found positive for heroin. Three representatives of 5 grams each were taken from each lot and in total nine samples were prepared and sealed with the seal No.152 of Custom Division Amritsar. Thereafter, the statements of appellants No.1 2 under Section 67 of the Act and 108 of the Customs Act were recorded. In pursuance of such statements, the Customs Officials searched the house of appellant No.3 Jamir @ Manu at Delhi and brought him to Amritsar and his statement under Section 67 of the Act and 108 of the Customs Act was also recorded. After completion of investigations, a complaint for the offences under Sections 8, 21, 22, 23, 29 30 has been filed before the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved the statements of the accused recorded under Section 67 of the Act and 108 of the Customs Act. He further deposed that due cautions was given to both the accused before recorded their statements that the same can be used against them before the Court of law. He deposed that no threat, pressure was exercised upon the accused while recording their statements. He deposed that both the accused along with case property were produced before the Duty Magistrate on 09.05.2006. On 10.05.2006, supplementary statements of both the accused were recorded under Section 67 of the Act and under Section 108 of the Customs Act, 1962. He deposed that all the case property including the seized samples was deposited with Shri Bhuvnesh Mishra, Inspector Malkhana of Custom House, Amritsar on 10.05.2006 vide inventories Exs.P-19 to P-21. He deposed that the case property was not tampered with during the period of his custody. In his cross-examination, PW-1 denied that Jamir accused or any other accused never made any voluntary statement. He stated that the accused were giving answers in Punjabi language to the questions asked. He denied that the signatures of Nasreen Akhtar were procured on blank pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 13.05.2006. PW-6 Dhiren Senapati, Inspector is the witness, who deposed regarding the safe custody of the samples from the time it was handed over to him by Inspector Rajesh Sarswat on 16.05.2006 till the time the same were delivered to the Laboratory for chemical examination. PW-7 is Shri Subhash Chander, Superintendent Customs, who deposed that he received a fax message from Shri Z.R.Kambli, Deputy Commissioner, Customs, LCS Attari Rail, Amritsar and also a corresponding phone message from Shri M.M.Dubey, Additional Commissioner of Customs, Preventive, Delhi on 08.05.2006. He deposed that the search of premises of Jamir was carried out and nothing incriminating was recovered. Thereafter, on the basis of summons, statement of Jamir @ Manu was recorded under Section 67 of the Act and under Section 108 of the Customs Act. He deposed that in his statement, Jamir admitted that accused Mohd. Rashad is coming with heroin which was to be delivered at his residence and was to be handed over to Nasir Ali and as per their directions and the place of delivery was to be intimated by their person working in India for them on consideration of Rs.2000/- per parcel. He also admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant No.2 has averred that she has not tendered any voluntarily statement to the custom department and if there is any statement, it is dictated by the department to suit them for implication of the false case against them. The suggestions put to the prosecution witnesses in the cross-examination are general in nature and do not substantiate the allegations of threat, coercion or misrepresentation in the recording of lengthy statements running into five to six pages and each page having been signed by the appellants. The plea of retraction from statements is, thus, an afterthought. In the absence of any conclusive evidence, such statements cannot be brushed aside. The Hon ble Supreme Court in a judgment reported as Pavunny Vs. Assistant Collector 1997 (3) SCC 721 has held that burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other persons. If it is established from the record and circumstances that confession was surrounded with suspicious, then it falls in the realm of doubt. In the present case, in the absence of any specific material regarding threat, coercion or misrepresentation, the suggestions put to the prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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