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Judges

J Malik

Acts

Sub-section (1) of Section 53 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985), the Central
Section 8/21 NDPS Act.
Section 313 Cr. P.C.,

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Smart Summary

Judgment Summary — M. Malik, J.

Factual and Procedural Background

The appellant was convicted by the trial court for possessing heroin (weighing 5 kilograms) under Section 8/21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The sentence imposed was rigorous imprisonment for ten years and a fine of Rs. 1,00,000/-, with a default simple imprisonment of six months in case of non-payment of the fine. The appellant appealed against that conviction and sentence.

The prosecution case, as summarized in the opinion, is that following a tip-off the appellant was apprehended on 28.12.1996 at about 8:45 PM near the Police Check Post of Singhu Border while travelling in a car with one Jagdeep Singh; heroin was recovered. The search and related formalities were carried out at the respondent's office at ITO, about 25 kilometres from the spot, and samples were sent to the CRCL (Central Revenue Chemical Laboratory) for testing. The appellant raised several factual and legal objections in the appeal, which the court considered and rejected.

Legal Issues Presented

Whether conducting the search/seizure and completing the formalities at the Customs office (ITO), about 25 km from the spot, rather than at the spot itself, vitiated the seizure and the prosecution case.
Whether Section 50 NDPS Act (right to be searched in presence of a Gazetted Officer) was violated and whether the presence of a Gazetted Officer in the raiding party satisfied the statutory requirement.
Whether recovery from the vehicle (including specially built-in cavities) and from containers/plastic bags invokes Section 50 protections or otherwise affects admissibility/weight of the recovery.
Whether the testimony of official witnesses (Customs officers) could be relied upon when independent witnesses were said to have turned hostile or did not fully support the prosecution.
Whether there was non-compliance with Section 55 NDPS Act (deposit of case property) and whether depositing samples in departmental malkhana (Customs valuable godown) was proper.
Whether the CRCL chemical report and its manner of proof (absence of signatures of all analysts on the report) rendered the report inadmissible or unreliable.
Whether the release of Jagdeep Singh (companion) without making him accused or a prosecution witness affected the case against the appellant.
The legal weight of the appellant's confessional statement and whether it required corroboration.

Arguments of the Parties

Appellant's Arguments

The search should have been conducted at the spot; completing formalities at ITO (25 km away) created opportunity for tampering or escape and undermines the prosecution case.
The appellant was not personally searched in presence of a Gazetted Officer as required under Section 50 NDPS Act, despite his demand; the presence of Mr. B.S. Bakshi in the raiding party (allegedly a Gazetted Officer) did not satisfy the statutory safeguard.
Recovery was from the car (in cavities), but appellant argues possibility of framing, and that the evidence of independent witnesses (PW7 and PW10) is unreliable because they did not fully support the prosecution.
Some members of the raiding party (PW8 and PW4) did not sign the recovery memo; only two officers signed — this raised doubt about the procedure.
Non-compliance with Section 55 NDPS Act: case property/sample handling was improper — samples not deposited in local police malkhana; one packet was deposited with the Customs valuable godown and record-keeping was unclear.
CRCL report filed with the case did not bear signatures of the analysts (Anwar Alam and B. Kumar) who actually handled/analyzed the sample — Dr. Rathore had not exhibited the report personally.
Jagdeep Singh was released despite being served notices, and the prosecution neither made him an accused nor a witness — this cast doubt on the prosecution's consistency.
Reliance on a later authority (Bhola Ram Kushwah v. State of M.P.) was urged by appellant's counsel to argue that contradictory and unreasonable prosecution evidence should lead to acquittal.

Respondent's Arguments (as reflected in the opinion)

The raiding party escorted the accused to the office; given the number of officers and circumstances (darkness, officers in the vehicle), escape or throwing away contraband during the 25 km trip was not reasonably possible.
The presence in the raiding party of Mr. B.S. Bakshi, a Gazetted Officer, negated the necessity to summon another gazetted officer as demanded — the respondent relied on this to counter the Section 50 challenge.
Recovery was effected from specially built-in cavities in the car; five packets were recovered and tested positive for heroin — factual basis for conviction.
Depositing case property in departmental malkhana (Customs valuable godown) was permissible under Notification No. 7/85 dated 14.11.1985; officers of the department could use their own malkhana rather than a police station malkhana.
Samples and case property were sealed with paper slips bearing signatures of the accused; the intact paper slips established that samples were not tampered with.
The CRCL report was admissible; the chemical examiner (Dr. Y.K.S. Rathore) supervised the analysts and the report was proved in evidence (Ex. PW8/C), even though some analysts' signatures were not on the report itself.
Jagdeep Singh's refusal to implicate the appellant and his role as companion made it unnecessary or unhelpful for prosecution to array him as an accused or call him as a witness.
The appellant made a claim under Section 313 Cr.P.C. (beaten/statement recorded against his wishes) for the first time late in proceedings; no supporting complaint was brought to the court's attention.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence	Upheld bringing apprehended vehicles to departmental office some distance away when justified (large quantity, need for language assistance), and held no undue delay in recording statements.	Used to reject appellant's objection that moving the accused to ITO (25 km) and conducting formalities there vitiated the seizure; court found the facts analogous and no fatal delay occurred.
Khet Singh v. Union of India	Preparation of mahazar at the department office (not at the spot) was acceptable where accused were present throughout and no tampering was alleged.	Relied upon to hold that preparing documents at the office did not invalidate possession/recovery when accused remained present and there was no allegation of meddling.
State of H.P. v. Pawan Kumar	Articles/containers (bags, briefcases, plastic bags) are not part of the "person" within Section 50; thus Section 50 safeguards do not apply to such containers.	Applied to conclude Section 50 NDPS Act was not applicable to recovery from vehicle cavities/containers, so lack of personal search before a Gazetted Officer did not vitiate the recovery.
State of Haryana v. Ranbir Singh @ Rana	Reiterated State of H.P. v. Pawan Kumar: Section 50 not applicable to contraband carried in a plastic bag.	Cited to reinforce the view that Section 50 had no application to the facts of the case (contraband in vehicle cavities/containers).
State Of Punjab v. Balwant Rai	Decision consistent with the principle that Section 50 is not attracted when contraband is carried in containers (as per State of H.P.).	Referenced to support the conclusion that Section 50 did not apply to the present recovery.
Nathusingh v. State of Madhya Pradesh	Police witnesses' evidence is not to be discarded merely because they are police officers, absent proof of hostility.	Relied upon to reject the argument that official testimony could not be trusted simply because independent witnesses were not fully supportive; official witnesses were credited.
Ahir Raja Kohmia v. State of Sorashtra; State Govt. of N.C.T. of Delhi v. Sunil Kumar	Authorities relied on regarding acceptance of police/official testimony in appropriate cases.	Placed reliance on these authorities to support acceptance of official witnesses where no hostility proved.
T. Shankar Prasad v. State of Andhra Pradesh	Where trap witnesses turn hostile, the Court may still accept prosecution on the basis of complainant and official witnesses.	Applied to justify acceptance of the prosecution case despite some independent witnesses not fully supporting the prosecution.
State of Kerala v. M.M. Mathew	Public servants are presumed to have acted honestly and their evidence cannot be discarded merely on the ground of interest in conviction.	Used to support the credibility of Customs officers' evidence in this case.
Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors.	Supports the reliability/presumption in favour of official witnesses (cited as consistent authority).	Referenced among authorities upholding reliance on official testimony.
State Of U.P v. Anil Singh; Pal Singh and Ors. v. State of U.P.; M. Prabhulal v. The Assistant Director DRI	Authorities supporting that official/testimonial evidence and related procedures may be accepted and that lack of independent corroboration is not fatal if the case is otherwise true.	Cited to reinforce that corroboration by independent witnesses is not an absolute requirement where the prosecution case is otherwise credible.
Mohd. Hussain v. State; State of Bihar v. Basawan Singh; Paramjit Singh v. The State; Shanker v. State of U.P.; Modan Singh v. State of Rajasthan; Dalbir Kaur v. State of Punjab	Principle of statutory presumption of correctness of official acts and the acceptability of official evidence unless rebutted.	Invoked to support the presumption in favour of the correctness of the Customs officers' actions and their testimonies.
Ruiz Guerrero Dolores v. Customs	Intact paper slips appended on samples establish that samples cannot be tampered with without disturbing those slips; supports non-tampering of sealed samples.	Applied to reject the contention that samples might have been tampered with — the court relied on the intact seals/slips around samples.
Babubhai Odhav ji Patel and Ors. v. State of Gujarat	Provisions such as Sections 52, 55 and 57 of the NDPS Act are directory (not mandatory) and substantial compliance is sufficient.	Quoted to counter the appellant's complaint about non-deposit with local police malkhana and to hold departmental malkhana/deposit as acceptable when substantially complied with.
Valsala v. State Of Kerala	Authority relied upon in discussions around custody and compliance with property custody provisions under the NDPS Act.	Mentioned in the opinion's discussion of custody provisions; relied upon in the broader line of authorities on substantial compliance.
Gurbax Singh v. State Of Haryana	Supports that procedural custody provisions are not mandatory and that substantial compliance suffices.	Referenced to support the court's conclusion that there was no serious violation of custody provisions affecting the prosecution case.
State of Himachal Pradesh v. Mast Ram	Holds that chemical examiner's reports are admissible in evidence; supports proof of chemical analysis without formal proof by every handler.	Applied to uphold admissibility of the CRCL report and to reject appellant's objection that analysts' signatures were missing.
Ravinder Singh @ Bittoo v. State of Maharashtra; A.K. Mehboob v. IO, NCB; Pon Adithan v. Deputy Director, NCB; Kalema Tumba v. State of Maharashtra; Raj Kumar Karwal v. UOI; Emmannuel Uchenna Ezenwosu v. NCB; Strino Juen Antanio v. Customs; Collector of C.E. v. Duncan Agro Industries Ltd.; K.I. Pavunny v. Asstt. Collector; F. Mario Pires v. Directorate of Enforcement; Namdi Francis Nwazor v. NCB; Triveni Prasad Ramkaran Verma v. State Of Maharashtra	Authorities cited for the principle that a confessional statement under the relevant provisions is strong evidence that may not require corroboration.	Aggregately relied upon to support the proposition that the appellant's confessional statement is substantial, requires no corroboration, and strongly supports conviction.
Bhola Ram Kushwah v. State of M.P.	Cited by appellant's counsel as authority where contradictory/unreasonable prosecution evidence warranted acquittal.	Noted by the court, but the court observed appellant's counsel did not elaborate or support this contention with evidence specific to the present case; court did not accept this as a basis for acquittal.

Court's Reasoning and Analysis

The court dealt with each of the appellant's arguments and explained why they did not undermine the prosecution's case:

On the place of search and moving the accused to the departmental office: the court relied on precedents (notably M. Prabhulal and Khet Singh) holding that when justified by the circumstances (large quantity, need for office facilities, accused being present throughout), bringing the vehicle/accused to the office for seizure formalities does not automatically render the seizure invalid. The court found that the accused was escorted by a raiding party; escape or throwing away contraband during the 25 km trip was not realistically possible, especially given the number of officers and that some officers accompanied the vehicle.
On Section 50 NDPS Act (search in presence of a Gazetted Officer): the court examined the nature of the recovery — packets from specially built-in cavities in the vehicle — and applied the principle from State of H.P. v. Pawan Kumar (and related authorities) that items contained in bags/containers or recovered from vehicle cavities are not the "person" within Section 50. Consequently, the formal requirement relied on by the appellant did not apply to this recovery and the presence of a Gazetted Officer in the raiding party further undercut the objection.
On the reliability of official witnesses versus independent witnesses: the court cited Nathusingh and other authorities to explain that testimony of police or official witnesses is not to be rejected merely because they are officials; absence of proof of hostility and supporting evidence (signatures on panchnama, consistency) permitted the court to rely substantially on Customs officers' testimony. The court also observed that independent witnesses had signed the panchnama and provided no satisfactory explanation for signing if they were untruthful.
On signatures on recovery memos: the court held it is not necessary that every member of the raiding party sign the recovery memo; the signatures of two Customs officers and the independent witnesses were adequate and did not fatally undermine the recovery memo.
On compliance with Section 55 and custody of samples/case property: the court accepted that departmental officers are authorised (by Notification No. 7/85 dated 14.11.1985) to deposit case property in departmental malkhana (e.g., Customs valuable godown) rather than the police station malkhana. It treated statutory requirements as met in substance and relied on authorities holding these provisions directory and requiring substantial compliance.
On alleged tampering and the CRCL samples: the court relied on the facts that the samples were sealed with paper slips that bore signatures of the accused and that the CRCL received intact samples matching the test memo. Ruiz Guerrero Dolores was cited for the principle that intact slips negate the possibility of tampering without obvious disturbance. The court concluded that tampering was not demonstrated.
On the admissibility of the CRCL chemical report: the court found that the report was admissible and could be proved by the supervising chemical examiner (Dr. Y.K.S. Rathore) even though the specific analysts' signatures were not on the report. The court relied on precedent that chemical examiner reports are admissible without formal proof by every handler.
On Jagdeep Singh's release and role: the court accepted the prosecution explanation that Jagdeep denied knowledge of the contraband and, being a companion, his support for the prosecution might have been inherently doubtful; it was not necessary for the prosecution to array him as an accused or call him as a witness.
On the confessional statement: the court emphasized that the appellant's confessional statement was uncontradicted in argument and constituted powerful evidence that required no further corroboration. The court listed numerous authorities supporting the principle that a confession under the relevant provisions is a decisive piece of evidence.
On the appellant's later claim (in response to Section 313 Cr.P.C. questioning) that he was beaten and the statement recorded against his wishes: the court noted this was raised belatedly, there was no complaint to substantiate it, and the officer (S.K. Handa, PW1) was not cross-examined on this specific point — diminishing the weight of that claim.

Holding and Implications

APPEAL DISMISSED.

Direct effect on the parties:

The conviction and sentence of the trial court (rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- with default simple imprisonment for six months) are upheld.
The court ordered that a copy of the judgment be furnished to the accused/appellant through the Jail Superintendent and directed that the lower court record be returned forthwith with a copy of the judgment.

The opinion does not purport to lay down a new precedent; rather, it applies and follows existing Supreme Court and High Court authorities to reject the appellant's procedural and evidentiary objections and to sustain the conviction based principally on recovery evidence and the appellant's confessional statement.

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Gurminder Singh v. Directorate Of Revenue

M. Malik, J.

1. The trial court handed down a verdict of guilty against the appellant and sentenced the appellant to undergo Rigorous Imprisonment for ten years and to pay a fine in the sum of Rs.1,00,000/-, in default of payment of fine, he was further ordered to undergo Simple Imprisonment for six months for the offence of possessing heroin weighing 5 Kilograms under Section 8/21 NDPS Act. Aggrieved by that order, the appellant has filed the present appeal. Adumbrated in brief, the case of the prosecution is that following a tip off, the appellant was nailed with the above said heroin, on 28.12.1996 at about 8.45 PM near Police Check Post of Singhu Border, while he was coming in a car along with one Jagdeep Singh.

2. The argument urged by the learned Counsel for the appellant is many branched. First of all, it was submitted that the search should have been conducted at the spot itself. However, the proceedings were conducted at ITO at the Office of respondent, which is situated at a distance of 25 kilometers from the spot. The appellant followed respondent's vehicle up to ITO. The learned Counsel for the appellant stressed that it is surprising to note that on such a long distance the appellant could have managed dodge to the Officers of the respondent. It was easy for him to slip away as there remains heavy traffic and a large number of red lights intervene in the way. Again, if the appellant was having the contraband, he could have thrown it out of the car during the travel of 25 kilometers with the help of Jagdeep Singh, who was accompanying him. He argued that this is a clear pointer to the fact that the appellant did not have the contraband and has been framed in this case.

3. These arguments carry no conviction. In an authority reported in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence , the facts were these. The car and truck having contraband were apprehended on 15.05.1993. The seizure of the narcotics took place between 6.00-9.00 PM at the Customs House and the statements of the accused were recorded on 16th and 17th May, 1993. The Apex Court held:

It has been established that the Customs Office was about 20 kms. from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and 6 were brought to the Customs Office. Further accused Nos.1 and 2 did not know Tamil. A Hindi knowing office had to be arranged. There was under the circumstances, no delay in recording the statements of the appellants.

4. In another celebrated authority reported in Khet Singh v. Union Of India. , it was held:

17. In the present case, though the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the Office of the Customs Department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed accordingly.

5. Now let us turn to the instant case. The accused was escorted by the Custom Officers and the question of running away from the spot could not have possibly arisen. It is clear that the raiding party consisted of a number of officers of the department. Mr. S.K. Handa, Inspector PW1, stated that he had associated with him four-five officers. K.S. Duhan, PW4 deposed that accused himself was driving the maruti vehicle and one or two officers of their department were sitting in the car. The evidence also reveals that at that time, the light was not available on the spot, PW1 stated that they had used head-lights of their car for the purpose of preparation of summons. The court must take a down to earth view in such like situation.

6. The next submission made by learned Counsel for the appellant was that the search of the appellant was not conducted in presence of a Gazetted Officer as required under Section 50 NDPS Act, though the appellant himself had demanded that he should be searched in presence of a Gazetted Officer. The plea set up by the respondent that since Mr. B.S. Bakshi, one of the members of the raiding party is a Gazetted Officer, therefore, there was no need to call the Gazetted Officer. The learned Counsel for the appellant pointed out that the presence of Mr. B.S. Bakshi does not fulfilll the mandatory requirement. In order to bring his point home, he has drawn the attention of the court towards an authority reported in Ahmed v. State Of Gujarat. , wherein it was held:

In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been affordedthe minimum right to be searched before another gazetted officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the legislature has enacted the safeguard contained in Section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable.

7. This plea is more palliative and does not delve deep to the roots of malady. The recovery of the contraband was affected from the car. The evidence on the record goes to show that five packets in a white cloth pouch were recovered from the specially built-in cavities from the right hand rear door panel of the car, which on opening contained light brown coloured powder in four packets and white coloured powder in one packet, which on testing gave positive test for heroin. The appellant as such was never personally searched.

8. In State of H.P. v. Pawan Kumar , it was held:

A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

9.In the latest authority reported in State of Haryana v. Ranbir Singh @ Rana , the recovery of contraband article from plastic bag carried by the accused was effected. It was held that in view of State of H.P. v. Pawan Kumar 2005 (4) SCC 385, Section 50 was not applicable in such a case. Similar view was taken in State Of Punjab v. Balwant Rai. (S.C.) 407. It is, therefore, crystal clear that Section 50 has no application in this case.

10. It was further submitted that both the independent witnesses Ramesh Rawat, PW7 and Bobby PW10 refused to latch on to the prosecution story. They are witnesses to the recovery and panchnama. It would not be safe to place reliance on official testimony. Secondly, although, the team was headed by Alok Tewari PW8, yet, PW8 and K.S. Duhan, PW4 did not sign the recovery memo. The memos were signed by S.K. Handa PW1 and B.S. Bakshi PW2. The learned Counsel stressed that the case of prosecution wallows in doubt and uncertainties.

11. These arguments lack conviction. In Nathusingh v. State of Madhya Pradesh , the case was investigated by the police. Both the public witnesses did not support the prosecution case. Reliance was placed on the testimonies of two police officers and it was held:

The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused.

12. Again, the reliance was placed upon the statements of the police officers in the cases reported in Ahir Raja Kohmia v. State of Sorashtra ; State Govt. of N.C.T. of Delhi v. Sunil Kumar 2001 (1) C.C. Cases (SC) 6. In T. Shankar Prasad v. State of Andhra Pradesh Crl. Appeal No. 909 of 1997, decided by Hon'ble Supreme Court on 12.01.2004, it was held:

The Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent.

13. In State of Kerala v. M.M. Mathew , it was held that public servants have to be presumed to have acted honestly and conscientiously and their evidence cannot be discarded merely on the ground that they be interested in getting the accused convicted. In this case the conviction of the accused was based on the testimonies of Sales Tax officers.

14. Similar view was taken in Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. 2001 IV AD (SC) 393; State Of U.P v. Anil Singh. , Pal Singh and Ors. v. State of U.P. and M. Prabhulal v. The Assistant Director DRI 2003 (3) CC Cases (SC) 67.

15. This is well settled that there is a statutory presumption of correctness of official acts in their favor. This was so held in authorities. Mohd. Hussain v. State 1989 (3) Crimes 679, The State of Bihar v. Basawan Singh , Paramjit Singh and Anr. v. The State , Shanker v. State of U.P. , Modan Singh v. State of Rajasthan (1978) 4 SCC 435, Dalbir Kaur and Ors. v. State of Punjab and Pal Singh and Ors. v. State of U.P. 1979 Cr.L.J. 917. In State Of U.P v. Anil Singh. , it was held:

It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.

16. In the instant case, the independent witnesses have proved their signatures on the Panchnama and no explanation is forthcoming as to why did they sign the panchnama. Consequently, they also support the evidence of the Custom Officers in a measure.

17. It is not necessary that all the members of the raiding party must sign the recovery memo. The signatures of two Custom Officers namely S.K. Handa, B.S. Bakshi and two independent witnesses are enough. This argument does not rock the boat to a dangerous extent.

18. It was also argued on behalf of the appellant that Section 55 was not complied with. Learned Counsel for the appellant urged that as per practice, the prosecution should have deposited the case property in the malkhana of local Police Station as is required under Section 55 NDPS Act. However, instead of doing so, the Investigating Officer sent one set of sample to CRCL, New Delhi through K.S. Duhan, PW4 on 24.12.1996. One Packet of case property was deposited on 26.12.1996 and that too, not with the Police Station but with the Valuable Godown of Cutsoms. Sohan Pal, Inspector, Central Excise, who was on duty as Inspector Valuable Godown Customs, PW12, deposed that only one packet was deposited with him on 26.12.1996 and no test memo was deposited by Mr. S.K. Handa on 26.12.1996. He could not say whether Mr. Handa had come to him during morning or afternoon or in the evening. He could not recollect who had recorded the entry in the malkhana register. It was argued that when two sets of samples were taken out, one was sent to CRCL for testing and the second set which was in the custody of Mr. S.K. Handa was not deposited anywhere.

19. I see no merit in these arguments. It is not incumbent upon the Officers of the Custom Department to deposit the case property with the malkhana of the Police Station. The Officers of the department are equally empowered to deposit the case property in their own malkhana in accordance with notification No.7/85 dated 14.11.1985, which is reproduced as follows:

S.O. 823 (E) - In exercise of the powers conferred by Sub-section (1) of Section 53 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985), the Central Government, after consultation with all the State Governments hereby invests the officers of the above the rank of inspector in the Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau with the powers specified in Sub-section (1) of that Section.

20. The CRCL received the duly intact samples. They matched the description in the test memo. The sample as well as the case property had been sealed with the paper slips which also bore the signatures of the accused. In Ruiz Gurerrero Dolores v. Customs 2000 (1) CC Cases (HC) 8, it was held in para 6:

The reason being that the aforesaid paper slips appended on samples were found intact and the sample cannot be tampered with without tampering with these paper slips. Therefore, there is no force in the contention of the learned Counsel for the appellant that the prosecution has failed ruled out the possibility of tampering with the samples in question.

21. In Babubhai Odhav ji Patel and Ors. v. State of Gujarat , it was held:

The learned Counsel further contended that the seized articles were not kept in proper custody and that there was violation of sections 52, 55 and 57 of the ndps act. He placed reliance on Valsala v. State Of Kerala. (1993) 3 Supp. 665. We do not think that there is much force in this contention. This Court in Gurbax Singh v. State Of Haryana. (2001) 3 SCC 28 held that these provisions are not mandatory provisions and they are only directory. In the present case, we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case.

22. The next submission made by the learned Counsel for the appellant was that the CRCL report filed with the case is not admissible in evidence. Dr. Y.K.S. Rathore, who, was a Chemical Examiner in CRCL, New Delhi has failed to exhibit Chemical examiner report in his statement. As per his statement, the samples were received with Anwar Alam, ACE and were allotted to him for analysis. Said Anwar Alam with assistance of B. Kumar, CA II was to analyze the sample. Dr. Y.K.S. Rathore PW6 admitted that the report did not bear the signatures of Anwar Alam or B. Kumar. It is pointed out that since witness has not touched the samples, therefore, it is difficult to fathom as to how he can speak about its authenticity.

23. These arguments are devoid of force.It is apparent that Anwar Alam and B. Kumar CA II were working under the supervision of Dr. Y.K. S. Rathore. This is not the requirement of law that every body, whosoever, has handled the sample must sign it. Again, it is well settled that the report sent by Chemical examiner is per se admissible in evidence without any formal proof. The report was proved on the record as Ex. PW8/C. This view finds support from an authority reported in State of Himachal Pradesh v. Mast Ram 2004 IX AD (SC) 57.

24. It was also argued on behalf of the appellant that one Jagdeep was also apprehended in this case. Notice under Section 50 NDPS Act was served upon him and he was served with summons under Section 67 NDPS Act. It is not understood as to why he was released in this case. It is explained that either he should have been arrayed as an accused or a witness. However, the needful was not done for the reasons best known to the prosecution.

25. The learned Counsel for the appellant kept on veering from the main topic. Although, Gurminder Singh has confessed his guilt, yet, at the same time, he has given clean chit to his companion. I have also perused the statement of Jagdeep Singh recorded under Section 67 NDPS Act. He denied the knowledge about the fact that his companion was carrying the above said contraband. There was no use to involve an innocent person in this case, in absence of evidence that both of them worked cheek by Jowl. Again, it was also not useful to array him as a witness. Being a companion of the accused-appellant, his support to prosecution case was open to doubt.

26. Learned Counsel for the appellant lastly pleaded that in view of the latest authority reported in Bhola Ram Kushwah v. State of M.P. , the accused should be acquitted because evidence led by the prosecution is contradictory and unreasonable.

27. Without evidence to support the appellant, the appellant is on thin ice with the said argument. No attempt was made to elaborate the above said contention.

28. Besides the above said evidence, there is enough evidence produced by the prosecution. The confessional statement made by the appellant puts the prosecution in an impregnable position. It is surprising to note that learned Counsel for the appellant did not advance even a single argument about the confessional statement made by the appellant. The evidence in confessional statement has substance, it can do without frills. There is no need of corroboration. This view finds support in number of authorities reported in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, DRI JT 2003 (Suppl. 2) SC 459, Ravinder Singh @ Bittoo v. State of Maharashtra 2002 (2) JCC 1059 SC; A.K.Mehboob v. IO, NCB ; Pon Adithan v. Deputy Director, NCB, Madras 1999 (2) JCC SC 335; Kalema Tumba v. State of Maharashtra ; Raj Kumar Karwal v. UOI and Ors. 1991 Cr.L.J. 97 (SC); Emmannuel Uchenna Ezenwosu v. NCB and Ors. 2003 (1) JCC 417; Ruiz Guerrero Dolores v. Customs 2000 (2) JCC (Delhi) 357 : 2000 (1) CC Cases High Court 8; Strino Juen Antanio v. Customs, 2000 (2) JCC (Delhi) 349; Collector of C.E. v. Duncan Agro Industries Ltd. AIR 2000 SC 2001; K.I. Pavunny v. Asstt. Collector ; F. Mario Pires v. Directorate of Enforcement, New Delhi 1982 Cr. L.J. 461 Goa; Namdi Francis Nwazor v. NCB 1994 (1) Crimes 579 (DHC) and Triveni Prasad Ramkaran Verma v. State Of Maharashtra. .

29. In his statement recorded under Section 313 Cr. P.C., for the first time the accused contended that he was beaten and the statement was got recorded against his wishes. Learned Counsel for the appellant failed to point out that any complaint was made against the Custom Officers by the accused. This statement was made for the first time on 31.11.2000. S.K. Handa, PW1, was not cross-examined on this point.

30. The confessional statement read in confunction with recovery of contraband forms the most telling and unflappable evidence against the accused. All the doubts have been proved to be purile and baseless. The evidence on record manifests the guilt of the accused. The appeal is, therefore, dismissed.

Copy of this judgment be furnished to the accused/appellant through Jail Superintendent. Lower court record be sent back forthwith, with a copy of the judgment.

Gurminder Singh v. Directorate Of Revenue

Judgment Summary — M. Malik, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gurminder Singh v. Directorate Of Revenue

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