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TMI Blog2013 (11) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after, the car was searched and poppy husk was recovered from the gunny bags. Poppy husk was weighed which was found to be 88.500 kilograms in both the bags. The bags were separately weighed. Three samples each of 50 grams were separated from each of the bags. The samples were sealed with customs' seal bearing impression '106'. Slips signed by the three accused namely Kashmir Singh, Jit Kaur and Kashmir Kaur were affixed on each of the sample. Slips were also signed by Mohinder Singh seizing Officer, PW3. The remaining poppy husk was put into gunny bags which were sealed with seal mark '106'. Slips duly signed by the accused and Mohinder Singh, seizing officer, PW3 were also pasted on this bags. Case property alongwith the samples was taken into custody vide memo Ex.PE. Panchnama Ex.PF and weighment sheet Ex.PG were also prepared. Panchnama and weighment sheet were attested by Ashok Kumar and Vikram Bhandari and were also signed by all the three accused. Mohinder Singh Seizing Officer, PW3, also attested these documents. Memo (recovery) Ex. PE was also attested by the aforesaid witnesses. From further search of the car one registration book Ex.P1, Insurance police Ex.P2 were also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 25 of the NDSP Act, accused-appellants, Kashmir Kaur and Jit Kaur, were charged under Section 15 of the NDPS Act, whereas Harbans Singh and Baljit Kaur, were charged under Section 29 of the Act, to which they pleaded not guilty and claimed trial. 4. In order to substantiate its case against the accused, the prosecution examined the following witnesses:- PW-1, Rameshwar Singh, Inspector, Central Excise, who stated that on 22.07.1992, Inspector Mohinder Singh, PW-3, deposited the case property in the Malkhana. He also gave other details of the case property deposited. PW-2, Ms. Shama, Lady Searcher, Customs Officer, Amritsar, deposed regarding recording of statements of Kashmir Kaur, Ex.PB, and Jit Kaur, Ex.PD, at the instance of Mohinder Singh, Inspector Customs. She also recorded statement of Kashmir Singh, Ex.PC. The also proved Ex.PB/1, PC/1 and Ex.PD/1, vide which copies of statements of the accused were given to them. PW-3, Mohinder Singh, Inspector Customs, narrated the whole case of the prosecution and proved all the documents relied upon by the prosecution. PW-4, Bachan Lal, Superintendent Customs, Amritsar, deposed that he was a member of the Naka party. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e solely on the basis of confession of the accused before the Customs Officer under Section 108 of the Customs Act. However, such a confession made before a Customs Officer is hit by Section 25 of the Indian Evidence Act. The learned counsel further contends that there are major contradictions in the statements of prosecution witnesses. He further states that PW-6, H.K. Kaushik, Inspector, Customs and Excise, deposed that the case property was never produced in the Court after 20.07.1992, whereas the occurrence itself is of the same day, i.e. 20.07.1992. Thus, it is clear that the case property was not produced before the Court and thus, the appellant deserves to be acquitted. The learned counsel further contends that the seal after use, was not handed over to the independent witnesses, who was available at that time. The learned counsel further contends that the samples sent for chemical examination were never deposited in the Malkhana despite the fact that Malkhana was housed in the police post itself. The learned counsel further contends that the prosecution has not been able to link the evidence with the accused inasmuch as the owner of the vehicle from which the contraband was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Queen Empress v. Babulal [ILR (1884) 6 All. 509] to put a stop to the extortion of confession, by taking away from the police officers 50 as the advantage of proving such extorted confession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose. The Act is a complete code by itself. The customs officers have been clothed with the powers of police officers under the Act. It does not, therefore, deal only with a matter of imposition of penalty or an order of confiscation of the properties under the Act but also with the offences having serious consequences. Section 53 of the Act empowers the customs officers with the powers of the Station House Officers. An officer invested with the power of a police officer by reason of a special statute in terms of sub-section (2) of Section 53 would, thus, be deemed to be police officers and for the said purposes of Section 25 of the Act shall be applicable. A legal fiction as is well known must be given its full effect. [See UCO Bank and Anr. v. Rajinder Lal Capoor 2008 (6) SCALE 1] Section 53A of the Act makes such a statement relevant for the purposes of the said Act. The observations of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and in the other under another. What is relevant is the purpose for which such arrest or search and seizure is made and investigation is carried out. The law applicable in this behalf must be certain and uniform. Even otherwise Section 138B of the 1962 Act must be read as a provision containing certain important features, namely: (a) There should be in the first instance statement made and signed by a person before a competent custom official. (b) It must have been made during the course of enquiry and proceedings under the Customs Act. Only when these things are established, a statement made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause (a) of sub-section (1) of Section 138B deals with one type of persons and clause (b) deals with another. The Legislature might have in mind its experience that sometimes witnesses do not support the prosecution case as for example panch witnesses and only in such an event an additional opportunity is afforded to the prosecution to crit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence. 15. In the instant case, the prosecution has not been able to connect the accused with the crime. As per the prosecution story, statement of accused Kashmir Kaur, Ex.PB, was recorded to the effect that on 20.07.1992 at about 9.30 a.m., she was called by accused Baljit Kaur and asked her to go to the house of Harbans Singh at Sathiala, along with co-accused Jit Kaur, and bring her luggage in a car. On their way back from the place of Harbans Singh, they were apprehended by the Customs Officers at 12 noon, near Beas Bridge. Accused-Jeet Kaur also gave similar statement. However, except for these statements, nothing incriminating has come on record against accused-Harbans Singh and Baljit Kaur and in the absence of any corroboration, Harbans Singh and Baljit Kaur, were acquitted. 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 eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n regard to search and seizure to which we may now take note of. 17. In the instant case, 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. 18. Even if the prosecution case is believed to be correct, 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. 19. In the light of the above discussion, this Court has no hesitation to conclude that the instant case is full of discrepancies, the alleged recovery has not been proved beyond all re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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