Criminal Appeal No. 402 of 1989

23rd January, 1992.

Petitioner Counsel: Satya Narain Mishra, for State.

Cases Cited:
1991 Cri LJ 97,1990 SCC (Cri) 330,AIR 1991 SC 45 [Para 15]
1989 Cri LJ 2007 (Cal) [Para 14]
1989 Cri LJ 460 (Gujarat) (Rel. on) [Para 14]
1988 All LJ 411 [Para 15]
1985 Cri LJ 1357,AIR 1985 SC 1092 [Para 14]
1974 Cri LJ 11,AIR 1973 SC 2783 [Para 15]
1974 Cri LJ 784,AIR 1974 SC 989 [Para 13]
1974 Cri LJ 789,AIR 1974 SC 1024 [Para 12]
1966 Cri LJ 1353,AIR 1966 SC 1746 [Para 12]
1964 (1) Cri LJ 705,AIR 1964 SC 828 [Para 12]
1962 (1) Cri LJ 217,AIR 1962 SC 276 [Para 15]

JUDGMENT

JUDGMENT :-Appellant-Banshidhar Maharana has preferred this appeal from jail against his conviction under S. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentence of rigorous imprisonment of ten years and alp to pay a fine of Rs. 1,000,00/- (one lac), in default to undergo rigorous imprisonment for a further period of six months.

2. Earlier shri Binod Kumar No. 1, advocate, was appearing in this appeal as amicus curiae by order dated 30-11-1989 but later on Shri Satya Narain Mishra, Advocate was permitted to appear who has argued the case on behalf of the appellant amicus curiae.

3. The prosecution case in short is that on 27-8-1986 at about 9.30 a.m. a bus bearing registration No. BHF-3611 was checked in village Minapur at Sheohar Sitamarhi road by the preventive staff of the Custom Department consisting of P. K. Sharma, Inspector Customs, Muzaffarpur (P.W. 3) with six others and 4 Kgs. 200 gms. of opium (of third country origin) valued at Rs. 16,800/-, was recovered from the brief case carried by the appellant. On demand by the appellant, could not produce any required documents or importation and legal possession of the said opium. A seizure list was prepared of the brief case and opium in the presence of the bus staff, namely, Haribans Rai, driver and Binod Kumar conductor of the said bus BHF 3611. The appellant gave his statement that the owner of the opium were Banmalidas Potedar and Ramdhani Singh. After the arrest, the appellant was forwarded to the Presiding Officer, Economic Offences, Muzaffarpur along with the seized articles and also a complaint for taking cognizance and thereafter, the prosecution had been started against the appellant.

4. The appellant denied the prosecution case. No witness in defence has been examined.

5. The prosecution, in support of its case, has produced seven witnesses. P.W. 1 is Ram Pravesh Das, Inspector Customs who had supported the case about the checking, recovery and seizure in his presence. He has also proved the seizure list and recording of the 'statement of the accused. P.W. 2 Indradeo Yadav, Head Constable, had been tendered for cross-examination. P.W. 3 Pramod Kumar Sharma, Inspector of Customs (complainant) has also supported the case of the prosecution. P.W. 4 Balwant Sing is the Customs Superintendent who has also supported the case of the prosecution. P. Ws. 5 and 6 Ramjanam Singh and Ramjit Ram, the two constables, have been tendered. P.W. 7 Reoti Raman Sinha, Superintendent of Customs too has supported the case of the prosecution.

6. The learned trial Court has convicted and sentenced the appellant after considering the entire material on the record as said above.

7. Learned counsel for the appellant has challenged the conviction and sentence of the appellant saying that the evidence of the witnesses of the police department, should not be believed as they are interested in the success of the case and further, no independent witness has been examined nor is there any explanation as to why independent witnesses could not be examined. It was also said that the two members of the staff of the bus, namely, driver and conductor, have not been examined nor the seizure-list has been proved. It was also said that the statement said to have been given by the appellant about the recovery, could not be relied on. To appreciate these contentions, the evidence produced by the prosecution in this case against the appellant, will have to be scrutinised with care and caution.

8. P.W. 3 Pramod Kumar Sharma is the Inspector. He has said that on 27-8-1986, he along with one Superintendent, two inspectors and five constables, one driver went to Sheohar-Sitamarhi road and on checking bus No. BHF 3611, from beneath the seat on which the appellant was sitting, a brief case was recovered which contained 4 kgs. 200 gms. of opium and on enquiry, the appellant said that the said brief case was his brief case. The appellant himself opened the brief case by his key from which the opium was seized and seizure memo was prepared which was signed by the witnesses and a copy thereof was given to the appellant under his signature. He had also given statement which was prepared under the carbon process in his writing and under his signature. His statement (Ext. 2) was also signed by Inspector Balwant Singh. The case was investigated by one R. R. Singh, the Superintendent whose investigation report is Ext. 3. The complaint (Ext. 5) had been typed on his dictation by Udho Singh, Steno and upon which he has also signed. In cross-examination, he has said that the place from where checking was done, was about 1 1/2 kms. from the Bazar. In the bus, the appellant was 2-3 seats behind the first row of seat. The opium was recovered from the brief case. He had gone 15 days Narcotic Drugs training and that is why, he was able to understand that the seized article was narcotics. He has said that the list was signed only by the bus driver and conductor but other passengers had refused to become witnesses. P.W. 1 is Ram Pravesh Das, who too has said that he had gone along with the checking party and from the bus, on checking, a brief case containing 4 kgs. 200 gms. of opium was recovered and the seizure list was prepared by P. K. Sharma and signed by the witnesses. The seized opium was kept in packets. The brief case was marked Ext. I and opium Ext. II. The spot was lonely one and there was no shop. The appellant was sitting 2-3 seats behind its front seat. The brief case was kept below the seat of the appellant which he claimed to be his own. The accused had not said about the Jai Prakash Jhola and he had not said that the brief case did not belong to him.

9. P.W. 3 Indradeo Yadav, has been tendered and on cross-examination, he has said that the bus was checked but registration No. of the bus was not seen by him. Similarly, P.Ws. 5 and 6, Ramjanam Singh and Ramjit Ram have been tendered for cross-examination

and were cross-examined, P.W. 5 has said that he was on duty and his duty was to stop the bus and remain with the inspector. P.W. 6 has said that the bus was stopped and there was small shop.

10. P.W. 4 is Balwant Singh, Superintendent of Customs who has said that he was in the said party at the time of checking of the said bus from which brief case was checked in which 4 kgs. 200 gms. of opium was found. The appellant claimed it to be his brief case. The seizure list was prepared by P. K. Sharma and on which he had signed. He has no knowledge if there was any shop at the spot. He had taken out the said brief case from beneath the seat. It was a small brief case. P.W. 7 Reoti Raman Sinha, Custom Superintendent, also has said, about his being in the party and recovery of the brief case from the bus containing the said quantity of opium. He interrogated the appellant who replied to the question. He had written and signed the investigation report, a copy of which, was given to the accused.

11. Besides this, statement of the witnesses, is confessional statement of the appellant himself on the record in which he has said that he was carrying the opium on the instruction from Banmalidas Potedar, residing of village Khada Peragrah, Sub-Division, Wayagarh, district Puri. Earlier, Ramdhani Singh personally had gone and handed over the opium to Shri Banmaldias, Banshidhar Maharana appellant further stated that he was paid Rs. 500/- for this trip by Ramdhani Singh and Rs. 300/- by Banmalidas for it. The expenditure for his coming and going was borne by both the above named persons. He was tempted by Banmalidas to do this because he was very poor and he had to look after his children and family because his monthly income was Rs. 50/- only.

As regards the contention of examination of only members of the raiding party and not independent witnesses, it may be seen that nothing has come out to show that on the spot, there were other shop-keepers or persons present. The occurrence had taken place at a distinct of 2/2 (sic) kms. from the Bazar and so, only the person present could be examined. No doubt, the driver and conductor have not been examined but other persons of the party have been examined who are of the rank of Custom Superintendent and Excise personnel. They have been subjected to cross-examination. Simply because they are officers, they cannot be said to be the interested or unreliable. The evidence of witnesses cannot be judged on the basis of their being officials and non-officials. The merit of the evidence is to be considered and not the persons who come to depose. Nothing has come out to show that these witnesses examined by the prosecution, were inimical or were interested in falsely implicating the appellant. The Supreme Court, in the case of Nath Singh v. State of M.P., AIR 1973 SC 2783 : (1974 Cri LJ 11), where all the witnesses had turned hostile, has said at page 2784 (of AIR) : (at p. 12 of Cri LJ) (para 2) that "their evidence could not destroy the prosecution case or make it doubtful. The prosecution case was supported by the evidence of two police officers, P. Ws. 5 and 6. The mere fact that they were police officers was not enough to discard their evidence. No reason was shown for their hostility to the appellant. "Again in the case of Gian Singh v. State of Punjab, AIR 1974 SC 1024 at page 1026 : (1974 Cri LJ 789 at pp. 790-91) (para) 5 the Supreme Court has observed :" In a recent case to which one of us was party (Som Prakash v. State of Delhi) AIR 1974 SC 989 : (1974 Cri LJ 784), this Court has held that police officials cannot be discarded in a trap case merely because they are police officials nor can any other witness be rejected because on some other occasion they have been witnesses for the prosecution in the past. Basically, the Court has to view the evidence in the light of probabilities and the intrinsic credibility of those two testify."

13. While appreciating the evidence of the witnesses who are (sic) said to be police witness, as said by the Supreme Court in the case of State of Gujarat v. Raghunath Waman Rao Baxi, AIR 1985 SC 1092 : (1985 Cri LJ 1357), the Court has to see as to whether the witness is truthful witness and

whether there is anything to doubt his veracity in any particular matter about which he deposes and where the witness is found to be truthful, there is the end of the matter. The evidence of these witnesses, does not show that they were interested whatsoever, against the appellant. They had gone in the discharge of the duty when checked the bus and from beneath the seat occupied by the appellant, brief case was recovered. The appellant claimed the same to be his own and then he himself opened the brief case by his key and gave out that as it belonged to him, for which recovery memo was prepared which he had signed. He also gave the statement which we shall consider later on. In these circumstances, their evidence of the (sic) witness does not suffer from any infirmity on account of which, they should be discredited.

14. Further, these officers are not police officers as provided in the Code of Criminal Procedure. A learned single Judge, in the case of Mangal Singh Bhan Singh Rathod v. State of Gujarat (1989 Cri LJ 460) (Guj) has observed about S. 53 of the Act at page 464 (para 10) that "From reading several provisions of Chapter XII of the Code, it clearly appears that the officer of Central Excise or Customs, who is empowered under S. 53 to be a police station officer, is not a police officer and he is not under any obligation of and he is not subject to the provisions of Ss. 154, 157, 158, 167 and 173 of the Cr. P.C. He has only the powers of investigation and he has no power to record FIR or to file a charge-sheet. The very fact that he is not constituted a police officer, but only invested with investigative power of a police officer indicates the legislative intention". The learned single Judge again referring to a Division Bench decision of the Allahabad High Court in the case of Mahesh v. Union of India, 1988 All LJ 411 at page 466 (para 12) which it has been said : "these authorised officers are competent to exercise the powers exercisable by an officer-in-charge of a police station. But thereby they will not become police officers by themselves and that the authorised officers were not police officers in spite of the provisions of S. 53 and Chapter XII would not be attracted to their investigation and therefore the Division Bench ultimately came to the conclusion that the charge-sheet could not be filed by the authorised excise officer investigating narcotic offences and they could not file a complaint under S. 180(1)(a) of the Code and they cannot file a charge-sheet under S.178 of the Code". In the end it was said in para 15 of the said judgment that "in, view of the aforesaid discussions, it is clear that all the provisions of Chapter XII of the Code cannot be attracted in respect of Narcotics offences investigated by Authorised Officers of Customs, Excise and other departments and such authorised officers are not police officers and statements made before them are not inadmissible in evidence and they have no power to file a charge-sheet under S. 173 of the Code." Another learned single Judge of the Calcutta High Court in the case of Abdul Razak alias Raju v. Sudip Kumar Dutta Gupta, 1989 Cri LJ 2007 has said that an officer invested with the power of an officer-in-charge of a police station under S. 53 of the Act, cannot be regarded as police officer and any confession made before him is admissible in evidence.

15. The Supreme Court, in the case of Raj Kumar Karwal v. Union of India, 1990 SCC (Cri) 330 : 1991 Cri LJ 97 considered the two judgments of the Supreme Court; one is the (i) State of Punjab v. Barkat Ram, AIR 1962 SC 276 : (1962 (1) Cri LJ 217), where it has been said that the duties of the customs officers were substantially different from those of the police and merely because they possess certain powers having similarity with those of the police officers cannot make them police officer within the meaning of S. 25 of the Evidence Act; (ii). The other decision is of Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828 : (1964 (1) Cri LJ 705), where it has been said that the Excise Inspector who recorded the appellant's confessional statement was in fact a police officer, properly so-called, within the meaning of that expression in S. 25, Evidence Act. Their Lordships further (in Karwal's case) observed that these decisions came up for consideration before a Bench consisting of five learned Judges in

Badaku Joti Savant v. State of Mysore, AIR 1966 SC 1746 : (1966 Cri LJ 1353) wherein the Lordships of the Supreme Court distinguished Raja Ram's case wherein the appellant was found in possession of contraband gold when his house was raided and searched and the appellant was arrested after a few days and gave his statement under his signature admitting knowledge of the existence of contraband gold and so, the Hon'ble Judges held that the facts of the case on hand were more in accord with the case of Barkat Ram's case. It was also held that the Central Excise Officer was not a police officer under S. 25 of the Evidence Act. Ultimately, it was held by their Lordships in Raj Kumar Karwal's case : "thus the ratio of the decision appears to be that even if an officer is invested under any special law with powers analogous to those exercised by a police officer-incharge of a police station investigating a cognizable offence, he does not thereby become a police officer under S. 25, Evidence Act, unless he has the power to lodge a report under S. 173 of the Code." The Supreme Court upheld the two decisions of Mahesh v. Union of India (1988 All LJ 411) (supra) and Mangal Singh Bhan Singh Rathod (1989 Cri LJ 460) (Gujarat) (supra).

16. In this view of the matter, the confessional statement of the appellant, which is on the record, can be looked into and can be relied on. In this confessional statement, the appellant has admitted that he was in possession of these articles recovered from his possession. Since, the recovered articles have been admitted to be his own though for other purpose, as such, non-examination of the recovery witnesses has got no effect, more specially when other witnesses examined by the prosecution, on scrutiny, are found to be trustworthy and their evidence is credible. Thus, the recovery of the articles has been established from the possession of the appellant for which there is no explanation and so, the appellant has been rightly convicted and sentenced by the learned Additional Sessions Judge.

17. In the result, the judgment and order passed by the learned 2nd Additional Sessions Judge against the appellant is confirmed and accordingly, this appeal is dismissed. The appellant is in jail and, he will serve out the remaining period of sentence and also make payment of fine as given by the trial Court.

Appeal Dismissed