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TMI Blog2013 (10) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... t:- In the case at hand 2 bags of poppy straw powder weighing 2.680 Kgs. had been seized from two bags. It has not been seized from the person of the accused-appellant. It has been established by adducing cogent and reliable evidence that the bags belonged to the appellant. As relying on Madan Lal v. State of H.P.[2003 (8) TMI 474 - SUPREME COURT] and State of H.P. v. Pawan Kumar [2004 (9) TMI 602 - SUPREME COURT] applying the interpretation of the word “search of person” to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. No recovery was affected from the person of the accused and in fact the recovery was from the checked-in baggage of the accused, therefore, there was no requirement for compliance of Section 50 of NDPS Act. Non-examination of independent witnesses does not cast doubt on the prosecution case - no rule of thumb can be laid down to arrive at a conclusion as to what is the effect of non-examination of panch witnesses. Each case has its own facts - Following decision of Ram Swaroop Versus State (Govt. NCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied that he was explained the contents of notice Ex.PW1/B under Section 50 of NDPS Act in Persian language. According to him, his signatures were obtained on various written as well as blank documents. No contraband was recovered from him or his baggage. He further stated that he retracted from his statement immediately from prison. It was a false, fabricated and manipulated case against him. He did not prefer to lead any defence evidence. After meticulously examining the entire material available on record, the learned Special Judge by impugned order convicted the appellant and sentenced as stated above, which has been assailed by the appellant by filing the present appeal. 4. I have heard Mr. Arpit Batra, learned counsel for the appellant and Mr. Pramod Bahuguna, learned counsel for the respondent and have perused the record. 5. Learned counsel for the appellant has basically challenged the impugned order on the following grounds:- (i) The appellant was convicted without considering the fact that he was unaware of any other language than Persian. According to the prosecution, one Sayed Mohd. Ashraf Hofiyani joined as interpreter and he was present during the proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the same were thereafter translated in English by PW11 Rajesh Kumar. Under the circumstances, no prejudice is caused to the appellant by preparing the documents in English, once contents were duly translated to the appellant. PW11 Rajesh Kumar has been examined by the prosecution. Sh. S.M. Ashraf Hofiyani could not be examined as he had been transferred to Kabul, as such, it was not possible to examine him. Furthermore, the entire recovery was from the baggage of the appellant which is substantiated by the testimony of the complainant and other material witnesses. Photographs were also taken which corroborates the ocular testimony of the witnesses. As regards statement of the accused recorded under Section 67 of NDPS Act it was submitted that there was no retraction for a considerable length of time. Moreover, there are no allegations of torture to the accused, as such, the same is devoid of merits. Reliance was placed on Union of India v. Satrohan (2008) 8 SCC 313; 2008 (3) JCC (Narcotics) 182. As regards minor variations in the testimony of witnesses, it was submitted that same does not affect the credit worthiness of the witnesses. Reliance was placed on Ram Kumar v. C.B. o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10. The thrust of argument of learned counsel for the appellant was on the fact that the appellant being an Afghani national was not aware of any language other than Persian. Documents were prepared in English, as such, he was not aware about the contents and serious prejudice has been caused to him by non-preparation of the documents in Persian language. As stated above, reliance was placed by him on Hasan Imam Inamdar (supra) and Ramaswamy (supra). In Hasan Imam Inamdar (supra) the accused was knowing Marathi and Hindi. Panchnama was drawn in English language. It was held that since the panchnama was drawn in English which language was not known to the appellant, as such, serious prejudice was caused to the accused. Similarly, in Ramaswamy (supra) appellant was South Indian, resident of Chennai. The documents were prepared in Hindi. There was nothing to show that procedure adopted by Investigating Officer was explained to the accused in English or any other language. Both these authorities does not help the appellant, inasmuch as, prosecution has examined PW11 Mr. Rajesh Kumar, one of the interpreters, who categorically deposed that he was translated the contents of notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was an Afghani national and was not conversant with English language and knew very little Hindi, therefore, at the very initial juncture all the safeguards were taken by the complainant while arranging interpreters who knew Persian language. All the proceedings were explained to the accused in Persian language and thereafter, the same were translated by Mohd. Ashraf Hofiyani to Mr. Rajesh Kumar, who then recorded the proceedings in English. That being so, it cannot be said that any prejudice was caused to the appellant. In Gita Lama Tamang (supra) also a plea was taken that appellants were Nepali Nationals and were not conversant with English language. It was observed that if panchnama and confessional statements made by the accused under Section 67 of NDPS Act are read in juxtaposition, no incongruities are to be located. Nothing extra was included in panchnama. Secondly on the last page of the panchnama it is recorded that the panchnama had been read over and explained to the appellant Gita Lama Tamang and thereafter his signatures were obtained . 14. At the cost of repetition it may be mentioned that in the instant case sufficient evidence has come on record to prove that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in Madan Lal v. State of H.P. 2003 Crl.L.J. 3868 and State of H.P. v. Pawan Kumar AIR 2005 SC 2265; (2004) 7 SCC 735, and it was held as under: Thus, applying the interpretation of the word search of person as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel for the appellant as regards the non-compliance with Section 50 of the Act. 17. Relying on this authority it was observed that the contention of the appellant that there has been non-compliance of Section 50 of the NDPS Act so assiduously raised is wholly sans substance. 18. In the instant case also no recovery was affected from the person of the accused and in fact the recovery was from the checked-in baggage of the accused, therefore, there was no requirement for compliance of Section 50 of NDPS Act. 19. Coming to the other limb of argument that only one panch witness has been examined whereas the other panch witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. 20. The observation made in Ramjee Rai and Others v. State of Bihar (2006) 13 SCC 229 was also reproduced and the same reads as follows: It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward. 21. Following these authorities it was held that non-examination of independent witnesses does not cast doubt on the prosecution case. In Gita Lama Tamang (supra) also, after relying upon number of judicial pronouncements it was observed that no rule of thumb can be laid down to arrive at a conclusion as to what is the effect of non-examination of panch witnesses. Each case has its own facts. In that case both the panch witnesses were Nepali. They could not be examined being untraceable. The complainant supported the case of the prosecution. It was observed that there is no inkling in the evidence on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of his family. The prosecuting agency could not be expected to be aware of the particulars of the family of the accused. All this shows that the statement was made by the appellant voluntarily and the same was duly translated in English by PW Rajesh Kumar. It is well settled that confessional statement of the accused, if found voluntary and truthful and has substance, it can do without frills. It must be kept in mind that Section 67 of NDPS Act is pari materia to Section 108 of Customs Act. If the confessional statement of the accused stands proved, there is no need of corroboration. 24. In Triveni Prasad v. State of Maharashtra AIR 1976 SC 2156, it was held :- The wealth of details given by the accused in his confessional statement goes to establish that his statement is voluntary. 25. Similar view was taken in authorities reported as Ravinder Singh @ Bittoo v. State of Maharashtra, 2002 (2) JCC 1059 SC, A.K. Mehboob v. IO, NCB JT 2001 (1) SCC 614; Pon Adithan v. Deputy Director, NCB, Madras 1999 (2) JCC SC 335; Kalema Tumba v. State of Maharashtra JT 1999 (8) SC 293; Raj Kumar Karwal v. UOI and Ors. 1991 Cr.L.J. 97 (SC); Emmanuel Uchenna Ezenwosu v. NCB and Ors. 2003 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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