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TMI Blog2007 (9) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... ence and if a search is conducted immediately the contraband may be recovered. On receipt of this information, Shri Pakyntein contacted Shri R.M. Chyne, Superintendent (PW 7), Shri B. Kar, Inspector (PW 2) and Shri N. K. Bhandari, Inspector of Customs (PW 4) and they all proceeded towards the residence of the said Yasihey Yobin at Dum Dum Nongthymmai, to conduct a search. On reaching there, they met the members of the SOT of Meghalaya Police along with Shri Yobin. After the particulars of Shri Yobin were ascertained a search warrant (Ext. 20) was obtained and then the search of the residence of Shri Yasihey Yobin was then conducted in presence of two independent witnesses Shri R.V. Dkhar (PW 3) and D. Khyriem (PW 8). In the course of the search Shri Yasihey Yobin himself took out one suitcase in which he said he had kept the packet of heroin. However, on opening the suitcase no packet of heroin was found inside. On interrogation on the spot, Shri Yasihey Yobin came out with the plea that the only person who knew about the packet of heroin kept by him inside the suitcase was Shri Lisihey Ngwazah (accused No. 2), his brother-in-law, and he might be the person who removed the packet. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid packet, put it inside the black colour shoulder bag and left the house to save his brother-in-law Shri Yasihey Yobin. 5. However, he had to return back to the house of Shri Yasihey Yobin along with the shoulder bag in which he had taken the precious thing on receiving the call from his sister. Shri Arun Kanungo (accused No. 3) and Shri Raju Premji, (accused No. 4), who were in police custody at Rynjah Police Station were also brought to Customs office at M.G Road on 20.8.2003 in connection with the on-going enquiry. In their statements recorded thereafter, they confirmed their participation in procuring the contraband and in the effort to find customers to sell off the product. 6. On the strength of the above information that came to light during the preliminary enquiry, Shri Yasihey Yobin (accused No. 1), Shri Lisihey Ngwazah (accused No. 2), Shri Arun Kanungo (accused No. 3) and Shri Raju Premji (accused No. 4) were put under arrest on 20.8.2003 between 1630 to 1645 hours. After the arrest the four accused persons were taken to Civil Hospital, Shillong on 21,8.2003 before obtaining remand for Judicial Custody. On 22.8.2003, the seized sample pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Mr. B. Bhattacharjee, learned Counsel appearing for the appellant Mr. Raju Premji as well as Mrs. T. Yangi, learned C.G.C. appearing on behalf of the respondents. 10. Since the grounds taken by the learned Counsel in the different appeals mentioned above are more or less common, we find it convenient to take up these grounds together, duly making reference to specific grounds taken in individual cases as and when relevant. One of the common grounds taken by, the learned Counsel for the appellants was that the learned Special Judge erred in following the procedure prescribed under Section 225 to 237 included in Chapter-XVIII of the Code of Criminal Procedure for trial before the Court of Sessions instead of the procedure provided under 238 to 250 prescribed for trial of warrant cases by Magistrate. Relying on the observation made by the Apex Court in R.S. Nayak v. A.R. Antulay 1984CriLJ613 , the learned Counsel contended that a Special Judge is required to follow the procedure prescribed for trial of warrant cases by Magistrates. There is no doubt that the learned Counsel is fully supported by the decision relied on. It must, however, be noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 227 and 228 comes next. Keeping in view the specific provision already noted above and also the fact that NDPS Act is a special Act, we find ourselves in respectful agreement with the above view of Gujarat High Court. It thus follows that the same procedure which would be applicable to the Court of Session would be applicable to the Special Court constituted under the NDPS Act. No prejudice can, therefore, be said to have been caused to the appellants in the proceedings before the learned Special Judge on account of the fact that the procedure prescribed for trial before a Court of Sessions was followed. We therefore find no procedural illegality in the trial before the learned Special Judge and any merit in the submission. 13. The next common contention raised by the learned Counsel relates to admissibility of the statement of the accused persons recorded by the Custom authorities after they were brought to the Customs office. The submission made by the learned Counsel for the appellants is to the effect that the statements of all the appellants recorded by the Custom officials were hit by Article 20(3) of the Constitution in so far as the appellants at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of an offence has been made can be a person accused of an offence within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an F.I.R. or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in Court. 15. The above makes it amply clear that it is only the filing of an FIR or a formal complaint that makes a person 'accused of an offence' under Article 20(3) of the Constitution. In the present case, there is no evidence on the records that any FIR was filed when the accused persons were examined. The formal complaint was filed by the Inspector posted at Anti-Smuggling Unit at Shillong, Custom Department only on 21.11.2003. This goes to show that there was neither an FIR nor a complaint filed against the accused persons on the date the accused persons were examined. These facts, therefore, make it amply clear that the protection envisaged under Article 20(3) of the Constitution cannot be extended to the statements made by the accused persons in the present case. 16. However, before we part with the issue, we might as well tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and is thus admissible in evidence. 18. One further submission made by Mr. B. Bhattacharjee in this regard is that all the above statements namely exhibits 17,18 and 19 were retracted by the accused in his subsequent statement exhibit 38 recorded on 4.11.2003 and in view of this no value can be attached to it. It is true that the statements have been retracted but at the same time we cannot lose sight of the fact that it is not the law that a retracted confession or statement has to be rejected as involuntary or unlawfully made merely because it has been retracted at the trial. All that is required is that such statement has to be examined carefully in the light of the surrounding circumstances. It is well settled law that conviction can be founded even on retracted confession if it receives general corroboration. 19. For the reasons indicated above, the contention raised by the learned Counsel for the appellants in this regard must be rejected as misconceived. This disposes of the question of bar of Article 20(3) of the Constitution. 20. The next ground relates to evidentiary value of the statement (s) in question. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by the Apex Court that the evidence of accomplice is undoubtedly admissible under Section 133 of the Evidence Act. However in view of the illustration contained in Section 114(b) of the Evidence Act, which says that an accomplice is unworthy of credit unless he is corroborated in material particulars, the Apex Court has further laid down that the Rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by other evidence. 23. Thus having regard to the rule of corroboration as laid down by the Apex Court in the above decision the question that arises for consideration is whether the statements of accused Aran Kanungo or for that matter the statement (s) of the accused in the case can be said to have been corroborated. In order to ascertain whether the statement (s) are corroborated it is essential to notice the statement(s). We may thus take up the statement of the accused i.e. Arun Kanungo at the first instance. 24. The statement of the appellant Arun Kanungo marked exhibit 13 is found to have been recorded partly in the narrative and partly in question and answer form. We find it sufficient to reproduce the summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd give it to Sri Sharma, which he did. Then Sri Yobin told Sri Kanungo that Sri Sharma would take the packet and he would hand him over the money to Sri Raju, as he was not willing to deal with any one else. Sri Sharma further stated that he would not take Raju to the main buyer but Raju would have to wait outside and accordingly both Raju and Sharma left. And that after sometime Sri Yobin received some hoax call and both of they got worried and left the hotel. Sri Raju also made a call to Shri Sharma and received similar calls and he came back to the hotel and not finding anyone there he went to Polo and contacted Sri Kanungo. That after few hours Sri Yobin came to Kanungo's house and told him that they must retrieve the stuff or pay money to Patrick. That Sri Raju later contacted Sri Yobin and took them to Sri Sharmas house and Sri Sharma assured that he would return the 'stuff' and also compensate in case of any damage. That after 5-6 days Sri Yobin called both Sri Kanungo and Sri Raju and informed that he had received that the packet but in torn condition. Sri Raju contacted Sri Sharma again and Sharma agreed to pay ₹ 10,000/- (ten thousand) as compensation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that no one should open it. ix) That his brother-in-law Sri Lisihey Ngwarah might have taken out the said packet from the suitcase out of fear. x) That it was at his own initiative that he asked his wife to contact Sri Lisihey Ngwarah and ask him to come back home and as per his instruction the contents of the said bag were presented before the Customs and 'SOT' officials, the Traditional Headman and others. Sri Yasihey Yobin in his questionnaire statement dated 20.08.03 inter-alia stated that: i) That he know Sri Aran Kanungo since the year 2000. ii) That he had procured the said packet containing heroin from one Sri Patrick at Guwahati on 28th July 03 at about 10 A.M. and that the packet was handed over to him in his vehicle. iii) That he went to Guwahati along with Sri Arun Kanungo in his car (Maruti-Easteem-1000) on 27th July 03. iv) That on 28.07.03 at about 09.45 A.M. Patrick handed him over the said packet at a little distance from the Network Bus Station on the road at Guwahati and Sri Arun Kanungo drove me vehicle back to Shillong. v) That Patrick told him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse and as per the direction of the Customs and Police officials took out the contents of the bag in presence headman of the locality and other independent witnesses. One packet containing 380 (three hundred and eighty) gms of heroin was recovered from his shoulder bag. (iii) That he did not know exactly what was inside the suitcase but he had suspected that it was a 'serious thing' in the eyes of the SOT. (iv) That after taking the 'things' with him he went to a friends's house who did not know the purpose of his coming. (v) That he had no idea about the contents of the packet. summary of the statement of Raiu Premji: accused No. 4 (i) That in the month of July '03, his friend Sri Arun Kanungo told him that he had managed some drugs and if he could help him in selling those drugs. Initially Sri Raju told Arun that he had never done this before, however he knew one boy called Forcast (per name) who is an addict and he might be able to help. And after few days he met 'Forcast' and asked him if he could help in selling drugs 'Forcast' then introduced one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illong. 28. A bare reading of the above statements goes to show that each one of the accomplice consciously took part in the whole process of procuring the contraband and the subsequent efforts that were undertaken for disposing of the same to intending customers. The statements bring to the fore the role undertaken by each one of the accomplices and the manner in which the individual role was executed. The statement also makes it clear that the role undertaken and executed by one accomplice was supplementing the role assigned to the other accomplice in carrying forward the plan. Looked at from this angle is not difficult to say that the statement of Shri Arun Kanungo finds corroboration from the statement of other accomplice. However we cannot lose sight of the fact that the corroboration that is spoken of must come from some evidence other than that of another accomplice. 29. Therefore the pertinent question is whether the statement (s) find corroboration from other evidence. To find an answer to this question, we have gone through the evidence on record. The undemolished evidence on the record shows that the whole episode started on the basis of sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials had forwarded the seized sample to Forensic Science Laboratory in Guwahati in violation of Standing Order 1/89 which requires such sample to be sent to one of the laboratories of the Central Revenue Control Laboratory. While conceding that the samples are required to be sent to Central Revenue Control Laboratory for test as per the above Standing Order Mrs. T. Yangi, learned CGC contended that the standing order was merely an executive instruction which cannot override the statutory provision as contained in Section 293(4)(e) Cr.P.C. Aperusal of this section shows that the Director, Deputy Director or Assistant Director of a State Forensic Science Laboratory is included in the list of Government Scientific experts to whom the section applies. 30. The learned CGC submitted that the process and procedure followed in FSL, Guwahati is as per the recommendation of the United Nations and samples in other cases are also sent to the same laboratory. In this regard, it is relevant to note that the Hon'ble Supreme Court in the recent case of State of Himachal Pradesh v. Pawan Kumar held as follows: There is no provision in the N.D.P.S. Act or Rules deba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department and not by the State Police. Similarly, we are unable to find any merit in the submission that the seizure being vitiated, the items seized cannot be used as evidence in support of the prosecution case. A Full Bench of Kerala High Court in Kochan Velayudhan v. State of Kerala AIR1961Ker8 , has held that although the failure to comply with the provisions regulating searches may cast doubts upon the bonafides of the officers conducting the search there is nothing in law which makes the evidence relating to an irregular search inadmissible. The Apex Court in Pooranmal v. Director of Inspection : [1974]93ITR505(SC) , while approving the view taken by the Privy Council in Kuruma v. R. 1955 AC 197 observed that: The courts both in India and England have consistently refused to exclude relevant evidence mainly on the ground that it is obtained by illegal search or seizure. Thus, according to this decision, evidence obtained as a result of illegal search or seizure is not liable to be shut out unless there is an express or implied provisions in the Constitution or other laws. In Pratap Singh v. Directorate of Enforcement 1986CriLJ824 , the Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the contraband was found missing from the suitcase, the suspicion ofYasihey Yobin fell on Lisihey Ngwarah and it was at his behest that his wife called up Lisihey Ngwarah in response to which he returned with the shoulder bag from inside which he himself took out the contraband in presence of independent witnesses. In these circumstances, it would be unreasonable to conclude that he was not in possession of the contraband. It is a well recognized position in law that possession need not always be physical possession and it can also be constructive. According to Blacks Law Dictionary, the law in general recognizes two kinds of possession : actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is thus in actual possession of it. A person who, although not in actual physical possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is thus in constructive possession of it. Hence, keeping in view the broad connotation of the word possession and also the fact that possession nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The parcel was thereafter opened and it was found to contain 4,350 grams of opium alongwith the apples. The appellant was prosecuted and convicted under Section 9 of the Opium Act, which conviction was confirmed in appeal and also in revision. In an appeal by special leave, the Supreme Court interpreted the word 'possess' as follows: It does not follow from this that the word 'possess' in Section 9does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word 'possess' connotes, in the context of Section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession. 37. It is also relevant to state that there was no evidence in the case that the appellant was aware that the parcel contained any contraband substance much less opium. It was thus contended on behalf of the appellant that the prosecution had failed to prove conscious possession of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. 39. Keeping in view the fact that the two provisions namely Section 10 of the Opium Act and Section 54 of the NDPS Act correspond to each other, it would be appropriate to bear in mind that the construction placed upon Section 10 of the Opium Act would be applicable with all force to the interpretation of Section 54 of the NDPS Act. 36. Now, coming to the question of presumption envisaged under Section 54 of the NDPS Act, it may be noted that the presumption under the section is a presumption of law which stands on a different footing from an optional presumption of fact as envisaged by Section 114 of the Evidence Act. Drawing a distinction between the presumption under Section 114 of the Evidence Act and a statutory presumption mandatory upon the Court, the Apex Court in Dhanvantrai Desai v. State of Maharashtra : 1964CriLJ437 observed as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o say that the submission is without merit. The position would certainly have been different if the Custom authorities to whom the information was passed on by the State Police and who took up the inquiry thereafter were not authorized to conduct the inquiry in narcotic drugs. There is no doubt that the Custom authorities are duly authorized to conduct such inquiries. No illegality can therefore be attributed to the course adopted by the State Police and the Customs Department. This ground therefore does not carry the defence case any further. 43. In view of the foregoing discussion, we are unable to find any fault with the conclusion arrived at by the learned Special Judge that the evidence on record establishes that the accused Yasihey Yobin and Lisihey Ngwarah were found in possession of 380 grams of heroin and the other accused namely Arun Kanungo and Raju Premji associated themselves in finding prospective customers for disposing of the contraband whereby they abetted commission of the crime within the meaning of Section 29 of the NDPS Act. In the result, we find no ground to interfere with the impugned judgment of conviction and sentence. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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