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TMI Blog1999 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... iled and M.Os. 1 to 7 were marked. On the side of defence Ex. D1 was filed. 4.The case of the prosecution is as follows : - In 18-6-1990 Stanely Robert, holder of Srilankan Passport arrived at Trichy Airport along with his luggage in order to board at the flight bound for Colombo. When his luggage was opened and checked up, P.W.1 Sathappan, the Inspector of Customs entertained suspicion on the appellant P.W.2 Gnanasekaran is another Inspector of Customs assisting P.W.1. When they enquired the appellant at Customs Baggage Examination Hall whether he had brought any prohibited goods in his luggage or in person, the appellant replied in negative. Then, he was brought before P.W.6 the Superintendent of Customs Airport and search was conducted on his person in the presence of two independent witnesses. The pair of shoes he was wearing was removed and inner soles were opened. On examination, a packet of brown colour powder was found concealed in each shoe, totally weighing 266 gms. valued at Rs. 26,600/-. After seizure of the shoes as well as the contraband, the appellant gave a voluntary statement to P.W.6, the Superintendent, Central Excise, Airport Tiruchy, stating that he came to Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant before P.W.6 cannot be said to be admissible document under Section 67 of the N.D.P.S. Act. In view of the fact that mandatory requirements as contemplated under Section 164 (2) of Cr. P.C. have not been complied with. 8.Mr. Rajamanickam, the learned Special Public Prosecutor appearing for the Customs, the respondent herein, would submit that Section 50 of the N.D.P.S. Act would not be applicable to this case, as it is a chance recovery and that the other provisions have been complied with. He would also point out that Section 164 Cr.P.C. would not cover the situation where the statement is obtained by the Customs Officials under Section 108 of the Customs Act. 9.In order to substantiate the plea made on either side, the cart load of the decisions of this court as well as the Apex Court are placed before this court. 10.Let me now refer to the Judgments which are relevant to the issue. 11.The first contention is that the non-compliance of Section 50 of the Act would be fatal to the prosecution case. For this proposicion, the Counsel for the appellant would cite the following authorities: - (1) T. P. Razak v. State of Kerala [1996 S.C.C. (Crl.) 57] : (2) State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the presence of Gazetted Officer after informing the concerned accused about the right of his being searched in the presence of a Gazetted Officer. 17.Section 42 is applicable to the officer under Section 42 which relates to the power of entry, search, seizure and arrest without warrant or authorisation, any officer of the Department of Narcotics, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug in respect of which an offence punishable under the Act has been committed between sun rise and sun set, that officer can seize any drug from any person and detain him and effect his arrest. 18.A conjoint reading of Sections 42 and 50 would make it clear that when the person on prior information that the offence has been committed by a person in a particular area, the Officer attached to Narcotics Bureau should comply with the condition contemplated under Section 50 of the Act by taking him to the Gazetted Officer in whose presence search could be effected if he so requires. 19.In the instance case, P.W.s 1 and 2 did not search person as authorised under Section 42. According to prosecution throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be complied with, as there are notifications to that effect. 24.Section 52A provides for the disposal of seized narcotic drugs. The learned Special Public Prosecutor appearing for the respondent, while adverting to the alleged non-compliance of sub-section (2) of Section 52A, would submit that the Central Government have already issued a standing order dated 13-6-1989, by virtue of the powers conferred under sub-section (1) of Section 52A, detailing the elaborate procedure to be adopted by the law enforcement agencies while seizing drugs. 25.A perusal of the Standing Order would reveal that an elaborate procedure had been prescribed with regard to the drawal of sample, despatch of samples for testing etc. Therefore, in the instant case, the procedure contemplated under Notification issued in sub-section (1) of Section 52A has been scrupulously complied with. This aspect also has been dealt with by this court in Rekha v. Assistant Collector of Customs (1992 Cri. L.J. 901). 26.Even as regards the other sections, namely, Sections 55 and 57, as pointed out by the Public Prosecutor appearing for the respondent, there are materials to show that they have been complied with. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Officials recorded statement under Section 108 of the Customs Act. The learned counsel for the appellant would state that Section 67 of the N.D.P.S. Act would be analogous to Section 15 of the TADA Act. 33.But, the reading of these two provisions would clearly show that Section 67 relating to the power of the officer referred to in Section 42 of the Act calling for any information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act, whereas Section 15 of the TADA Act would provide for the power of the Superintendent of Police recording confession from the person accused of the contravening the provisions of the said Act, after statutory warning. Therefore, both the sections are different in nature. 34.Moreover, Section 67 of NDPS Act would refer to the officer mentioned in Section 42, who is to act under the prior information. As indicated in the earlier paragraphs, this case would relate to the chance recovery and the recording of the statement by the Superintendent of Customs. Therefore, the statement Ex.P3 is admissible under Section 108 of the Customs Act. 35.The learned counsel for the appellant by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code, but those statements were made in answer to the notice under Section 117A of the Customs Act.
41.The police officer is recording a statement under Section 161 Cr.P.C. and the Magistrate is recording the statement under Section 164 Cr.P.C. Admittedly, the Customs Officer is recording a confession not as a Magistrate. Therefore, it cannot be contended that protection of Section 164 Cr.P.C. would be available to the accused in a case where the Customs Officer is recording the confession under Section 108 of the Customs Act.
42.In view of the above reasonings, I am of the considered opinion that the materials available on record would be genuine and acceptable and the same would be sufficient to record conviction on the appellant for the offence under Section 8 (c) read with Section 23 of the N.D.P.S. Act and Section 135 (a) of the Customs Act. Therefore, I do not find any merit in this appeal.
43.In the result, the appeal is dismissed confirming the conviction. However, under the facts and circumstances of the case, the sentence is modified into 10 years R.I., being the minimum and to pay fine of Rs. 1,00,000/-, in default, to undergo R.I. for one year. X X X X Extracts X X X X X X X X Extracts X X X X
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