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TMI Blog2001 (1) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... Charas to a customer at Gandhi Maidan at Patna. He reduced the said information into writing and the same was submitted to the Deputy Commissioner, Preventive and Vigilance, Central Excise, Patna. Accordingly a raiding party consisting of Central Excise Officers, namely, Lokesh Sharma (P.W. 2), Rajiv Kapoor (P.W. 3), Jaideep Kumar (P.W. 4) and M.Q. Hayat was organised. The said party along with Sepoy and Driver reached at Gandhi Maidan, Patna on 12-9-1999 at about 19 hours and collected two independent witnesses, namely, Dharmendra Kumar (P.W. 6) and Shailendra Kumar (P.W. 5). The raiding party noticed that a person carrying a polythene bag was coming towards Gandhi Maidan near Gandhi Murti, who was identified by the informant. He was intercepted by the raiding party and the party disclosed their identity. The said person disclosed his name as Ibrahim Ansari (accused-appellant). The raiding party headed by the above named officers gave their introduction to the suspect and disclosed that they had intention to search the bag possessed by him in order to verify their information. The search was conducted by the officers of the raiding party in presence of above named two independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P.Ws. 5 and 6) were called upon. The accused was told that he is a Gazetted Officer of the department and he intend to search him on the basis of his information which, the accused volunteered to be searched. Accordingly the search was conducted in presence of the independent witnesses and alleged charas were found in the said bag. The accused confessed that he was carrying Charas brought from Nepal to be handed over to some person at Gandhi Maidan. It became dark, hence the Custom officials along with two independent witnesses brought the accused to the Central Excise Office where other formalities were completed. On weightment 4 kg. and 150 grams net charas were found in possession of the accused. Two samples of 25 grams each out of the recovered Charas were taken out and sealed in the envelop over which the officers of the department, the independent witnesses and the accused put their signatures. The envelop is marked Ext. 2. By test memo (Ext. 3) he sent the samples to Chemical Examiner along with the forwarding letter (Ext. 4). The report of the Chemical Examiner was subsequently received (Ext. 5/1) and the said report was sent to the Government O.P.M. Alkaloide Works, Gazip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence the accused was searched. P.W. 6 (Dharmendra Kumar) was also called at the time of search. Both of them stated that about 4 kg. of Charas in three packet was recovered from the possession of the accused. P.W. 5 could not identify the accused in the dock on the date of his deposition. In cross-examination he admitted that he is a Casual Worker in the Central Revenue Office. They admitted their signature on the seizure memo and Panchnama (Ext. 16 series). P.W.6 failed to identify the accused in the dock. He also admitted that he is a Casual Worker in the Custom Department. P.W. 7 (Rajeev Kumar) is another Inspector of the department, who supported the evidence of P.Ws. 1, 2 and 3 in entirety. He was member of the raiding party and in his presence search was conducted and the alleged Charas were recovered. He has proved the signature of the accused on the material exhibit (sample of the Charas marked Ext. 18). He has proved the samples which had kept in the office, marked material Ext. II and his signature on material exhibit is Ext. 7/5. He claimed to identify the accused in the Court but the accused was not produced from the jail custody………… the accused-appellant but Ext. A ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, viz. the shifting of the onus to the accused and severe punishment to which he become liable, the legislature have enacted safeguards contained in Section 50. Compliance of the safeguard in Section 50 is a mandatory obliging the officer concerned to inform the person to be searched of his right to demand that search could be conducted in presence of a Gazetted Officer or a Magistrate. The officer who conducts such search must state in his evidence that he has informed the accused of his right to demand that while he is searched in presence of a Gazetted Officer or a Magistrate and the accused had not chosen to so demand. The Apex Court has held that if no evidence to that effect is given, the court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit article was not established. It is also the duty of the court to carefully scrutinise the evidence and satisfied that the accused had been informed by the officer concerned, that he had a right to be searched before a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. In support of the above contention the learned appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and two independent witnesses, namely, Shailendra Kumar (P.W. 5) and Dharmendra Kumar (P.W. 6). P.W. 1 stated that after disclosing his identity and of the raiding party he told the accused that they had intention to search the bag possessed by the accused in order to verify their information. P.W. 1 also informed the accused that he as himself a gazetted officer and if he likes, he may be searched in his presence, on which the accused-appellant volunteered to be searched by him (P.W. 1). This fact has been corroborated by other P.Ws., including P.Ws. 5 and 6, the two independent witnesses. The seizure list was prepared, thereafter, over which the accused has also signed (Ext. 7). The seized article was found to be Charas weighing 4 kg. and 150 grams net. The sample of the seized article was sent for chemical examination for analysis and report. The chemical examiner sent his report (Ext. 5) and confirmed that seized substance was charas. The accused appellant in his statement under section 313 Cr. P.C. has admitted about his signature over the seizure memo. In the circumstances the provisions of Section 50 of the Act stood complied with and there was no question of giving any furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h search by a gazetted officer of the Custom Department specifies the test of section 50 of the Act. In the circumstances we do not find substance in the above contention made on behalf of the appellant. 10.The learned appellant's lawyer submitted that P.Ws. 5 and 6 are not independent witnesses but they are Casual Workers in the Custom Department. Therefore, there was no strict compliance of the provision that search should be made in presence of independent witnesses. The learned appellant's lawyer submitted that P.W. 5 (Shailendra Kumar Pandit) in paragraph 12 of his cross-examination admitted that he and P.W. 6 (Dharmendra Kumar) are Casual Workers in the Custom Department, for which they are paid daily wage. His evidence finds corroboration from the evidence of P.W. 6 (Dharmendra Kumar) in Paragraph 8 of his cross-examination. 11.We have carefully scrutinised the evidence of P.Ws. 5 and 6 who have admitted that they are Casual Workers on daily wage in the Custom Department. Therefore, there is substance in this contention of the appellant that they are not independent witness in real sense. However, on this ground the entire prosecution case is not to be disbelieved when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were sent for chemical examination. Thus he has materially corroborated the evidence of P.W. 1. P.W. 3 (Rajeev Kapoor), another officer of the Custom Department assisted P.W. 1 in the search and corroborated the evidence of P.Ws. 1 and 2 on all material points. He stated that accused-appellant had admitted in their presence that seized article was Charas, which he has brought from Nepal. He put his signature on the Panchnama (Ext. 9). This witness could not identify the accused in the dock on the date of his deposition. P.W. 4 (Jaideep Kumar) is another Inspector of the Department, who assisted P.W. 1 at the time of search and recovery of Charas from the possession of the accused. He has corroborated the evidence of P.Ws, 1, 2 and 3 on material points. He has put his signature on Ext. 9. The accused was not present in Court when he was deposing but he claimed to identify the accused. P.W. 5 (Shailendra Kumar Pandit) and P.W. 6 (Dharmendra Kumar) have deposed as an independent witness and their evidence has been discussed earlier. P.W. 7 is another Rajeev Kumar, an Inspector of Custom Department, who has corroborated the evidence of abovementioned witnesses, including P.W. 1. He sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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