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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 ..... h 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. Then on the bidding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder 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 packet was sent to Forensic Science Laboratory, Guwahati, for laboratory test. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the case cited is in relation to a procedure to be followed by a Special Court constituted under the provisions of PC Act 1988 and not in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 time of recording their statements were persons accused of an offence' within the meaning of Article 20(3) of the Constitution. Relying on the provision contained in this article the specific contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 take into consideration the submission made by Mr. B. Bhattacharjee, the learned Counsel for the accused-Raju Premji. In this regard, it is to be noted that the statements of the said accused consist of three parts namely exhibits 17, 18 and 19. This accused was arrested on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specific plea taken by Mr. Kar, the learned Counsel in this regard, is that the statement was not voluntary in nature having been given under duress and as per the law laid down by the Apex Court in Nandini Satpathy v. P. L. Dani, reported in (1978) 2 SCC 452 and State (NCT of Delhi) v. Navjot Sandu reported in 2005CriLJ3950 the court should refrain fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 summary of the said statement as incorporated in the written complaint as follows: i) That on 27.07.2003 he received a telephone call from Shri Yasihey Yobin in the morning asking him to accompany him to Guwahati as he did not have any driver and he obliged. And on reaching, they boarded in Hotel Nandan, Guwahati as they had reached very late. The next day they left Guwahati and came back to Shil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 25. A plain reading of the above statement throws sufficient light on the role played by the accused Aran Kanungo in the whole process of procuring the contraband and in the efforts made for selling of the same after they took its delivery. The above statement also makes it clear that the whole operation was a joint effort of all the accused appellants. In view of this, it is essential to go through the statements made by the remaining -accused persons as well. 26. The statement of Yashihey Yob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 that his product weighs about 350 gms and the cost is ₹ 5 (five) lakhs but he was giving him ₹ 4 (four) Lakhs and if it is sold he would give him ₹ 50,000 (fifty thousand). vi) That Patrick used to use the perm 'product" while referring to drugs/heroin. vii) That he did not have address or telephone number (s) of Patrick. viii) That Patrick had called in his residence for five times calls were STD calls Patrick had called him in his mobile phone twice and in both these occasions calls were made from Guwahati. ix) That till date he had received only one packet. x) That Patrick had told him that he is a Burmese national. xi) That he had kept the said packet in the back of the seal po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew 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 person called 'Bhaiji' to Sri Raju as a prospective buyer. Bhaiji was then introduced to Sri Kanungo. (ii) That after few days Sri Arun Kanungo told him that the heroin actually belongs to one person from Arunachal. And then the said person from Arunachal was introduced to him. Sri Raju knew this person as Yogen. (iii) That after few days, Sri Yobin and Arun told him that the staff has to be brought from Guwahati and asked us to come to Guwahati. It was arranged that Sri Yobin (Yogen) and Sri Arun would go in Sri Yobi's car and Sri Raju and 'Bhaiji' would go in Sri Arun's car. Accordingly, Sri Yobin and Sri Arun went to Guwahati in Sri Yobin's car and Sri Raju and 'Bhaiji' went separately in Guwahati. Sri Raju met Sri Yobin (Yogen) and Arun at Hotel Nandan, Guwahati. But finally the goods were not received by them and Sri Raju and 'Bhaiji' came back to Shillong. (iv) That after few days Sri Yobin (Yogen) and Sri Arun conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. The undemolished evidence on the record shows that the whole episode started on the basis of source information received by Shri M. Kharkrang, Additional Superintendent of Police, SOT of Meghalaya Police (PW-9). According to this witness his source informer came to his office at 6 to 6.30 P. M. on 19.8.2003 and informed him that some people had offered to sell drugs to him and they have decided to meet at Keating Road. On receipt of the information, he deployed plain clothes policemen who nabbed accused Arun Kanungo (accused No. 3) and Raju Premji (accused No. 4) when they turned up there to meet the source informer for the drug deal and brought them to his office. Even though nothing was found when they were searched they disclosed on interrogation that the drugs were in possession of one Yasihey Yobin (accused No. 1) and they were only on the lookout for prospective customers for the said drugs. They also informed that the said Yasihey Yobin lives in Dum Dum, Nongthymmai and his office was at Bijni complex. The information was then passed on to Custom officials which was received by Shri N.K. Bhandari, Inspector, Anti Smuggling Unit, Custom Division, Shillong. Hereduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar held as follows: There is no provision in the N.D.P.S. Act or Rules debarring chemical analysis of the opium, found to be in illegal possession of an accused, contrary to the provision of the act and seized, in any other laboratory, which may be authorized to analyse the sample. There is also no requirement that such opium must be examined by the Chemical Examiner within the meaning of Rule 2(c). In view of the above statutory provision, the clarification given by the learned CGC, and the decision cited above, we have to say that we find no illegality in the process adopted by the Custom authorities in the matter. 31. No doubt, efforts were made by the learned Counsel to show that the seizure itself was illegal and as such, the seized items cannot be used as evidence in support of the prosecution case. The submission made by Mr. B. Bhattacharjee, learned Counsel for the appellant Raju Premji is that the information regarding the drug deal was first received by the SOT but curiously the SOT did not reduce the information into writing as mandatorily required under the provisions of Section 42 and such non-recording of the information vitiates the entire proceedings. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court concluded the matter asunder: ...After all in course of a search things or documents are required to be seized and such things and documents when seized may furnish evidence. Illegality of the search does not vitiate the evidence collected during such illegal search. It is thus clear from the above that even assuming that the search was illegal, the seizure of the articles is not vitiated and the evidence of such seized articles need not be ignored and overlooked as they furnish evidence. Therefore, the contraband which has been seized in the present case, forms an important evidence in support of the prosecution case. 33. Now, coming to the nature and extent of corroboration required in such matter, it might be noted that as per the guidelines laid down by the Apex Court in State of Bihar v. Basawan Singh reported in 1958CriLJ976 and Ramanlal Mohanlal Pandya v. State of Bombay reported in AIR1960SC961 , it is not necessary that there should be independent corroboration of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonable to act up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused Yasihey Yobin was correctly found to have been in possession of the contraband. 35. Now, coming to the next submission of the learned Counsel in respect of the accused Lisihey Ngwarah, it was firstly pointed out that the statement Ext. 11 contains mention of Sections 193 and 228 IPC which a layman like him could not have been in apposition to mention. This, according to the learned Counsel Clearly showed that the statement was manipulated to some extent to implicate him. It is, however, to be noted that the fact that the contraband was seized from his possession is not seriously disputed. All that is contended is that, according to the prosecution itself, the accused was not aware of the fact that the precious thing which he had removed from the suitcase and was carrying was a drug. Hence, even though he was carrying the drug, he being Unaware of it, his conviction under Section 21(c) was not sustainable. It must be conceded that the whole evidence on record goes to show that accused Lisihey Ngwarah was having no knowledge of the fact that the special thing he was carrying in his shoulder bag was drug. He came to know that it was heroin only when a sample of it was te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution that in most cases of unauthorized possession of opium the prosecution will never be able to prove that the accused was knowingly in possession of the article and that the burden to prove that he was not in conscious possession is upon the accused by virtue of Section 10 of the Act. That section seems to proceed on the assumption, if it is proved that the accused had something to do with opium, then the burden of proof that he has not committed an offence will be upon the accused. In other words, when once it is proved in a prosecution under Section 9 of the Act that the accused was in physical custody of opium, it is for the accused to prove satisfactorily that he has not committed an offence by showing that he was not knowingly in possession of opium. It would, therefore, appear that the prosecution need only show that the accused was directly concerned in dealing with opium. If the prosecution shows that the accused had physical custody of opium, then, unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption under Section 10 would arise. We do not think that the language of Section 10 would warrant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved, which occur in this provision make it clear that the presumption has to be rebutted by 'proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. 41. The position of law that unmistakably emerges from the above, is that a bare explanation which is merely plausible would not be sufficient for rebutting the presumption that the accused has committed an offence erected by the provision. It is only the explanation which is supported by proof that can rebut a presumption created by the provision. Admittedly, the explanation put forward by the defence in the present case lacks support by proof and consequently it must be held that the presumption that the concerned accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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