ORDER
Jyoti Balasundaram, Member (J)
1. The brief facts of the case are that on 19-7-1988 Mohan Singh and Mangha Singh were apprehended at about 2.00 AM near Village Chhanga Rai Uttar Ferozpur District and 35 packets of charas were recovered from each of the sacks being carried by them as head loads. They further disclosed that they have also delivered 5 sacks of charas to Mrs. Khusia Bai (mother of Mangha Singh) and a search of her house led to the recovery of 5 sacks containing a total of 160 packets of charas. In their respective statements. All 3 of them admitted the above facts and stated that earlier 5 sacks had been dumped in the house of Khusia Bai which were given to them by Lal Singh and transported by them along with Khanda Singh in Khanda Singh’s tractor trolly. Lal Singh also admitted that while he was rowing his boat he noticed something which was found to be charas and further deposed that he had arranged for its transportation through Khanda Singh’s tractor trolly along with his son Mangha Singh to his house with directions to Khusia Bai to conceal the goods. He further admitted having sent two packets of charas through Mohan Singh and Mangha Singh. All the charas packets were seized, samples of 30 gms from each bag were drawn and sent for testing (and subsequently confirmed to be charas). Show cause notices were issued proposing confiscation of the seized charas weighing 256 Kgs. valued at Rs. 10,24,000/- on the reasonable belief that they had been smuggled into India in contravention of the provisions of the Import (Control) Order, 1955 issued under Section 3(1) of the Imports and Exports (Control) Act, 1947 read with Section 11 of the Customs Act and the relevant provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and proposing imposition of penalty. The adjudicating authority passed the impugned order of absolute confiscation of charas and imposed personal penalty of Rs. 50,000/- on Lai Singh, Mohan Singh and Mangha Singh and Rs. 10,000/- on Mrs. Khusia Bai and Rs. 25,000/- on Khanda Singh. Hence these appeals.
2. Shri S.L. Setia, learned Counsel appearing for appellants at S. No. 1 to 4 contends that the appellants have been falsely implicated in the case and the Department has not discharged the burden of proof to establish contravention of the provisions of the law and in this regard he relies upon Order dated 14-6-1990 of the Additional Sessions Judge, Ferozpur discharging Lai Singh of a charge under Section 20 of the NDPS Act and order dated 8-10-1991 of the Additional Sessions Judge, Ferozpur acquitting the other 3 appellants of the same charge.
3. Shri O.K. Khullar, learned Counsel appearing on behalf of Khanda Singh submits that there is no independent evidence on record against the appellant and the case against him has been made out only on the basis of statements of co-accused without any independent corroboration and this is not sufficient to bring home the charge against the appellant herein. The appellant is in no way concerned with the transport of the offending goods and the Department has failed to establish conscious knowledge on his part and therefore, the burden of proof has not been discharged by the Department.
4. Shri K.N. Gupta, learned SDR submits that a case of a conspiracy to smuggle charas into India has been made out by the Department – there has been recovery of charas from two of the appellants viz. Mohan Singh and Mangha Singh, statements have been recorded from the appellants at SI. No. 1 to 4 in which they have all admitted their involvement in the offence and it is relevant to note that none of the statements have been retracted and, therefore, have to be accepted as true and voluntary. As regards Khanda Singh, the learned SDR submits that the statements of appellants 1 to 4 involve him in the offence and there is no reason for appellants at SI. No. 1 to 4 to falsely implicate him in the absence of any enmity between them. He also points out that Khanda Singh did not join the investigation inspite of several summons having been issued to him. The order of acquittal by the Additional Sessions Judge will not advance the case of the appellants as the acquittal of the charge of violation of Section 20 of the NDPS Act will not by itself amount to holding that no contravention of the Customs Act has been made out.
5. We have heard both sides, carefully considered their submissions and perused the order and judgment of the Additional Sessions Court, Ferozpur. Lai Singh has been discharged from standing trial for violation of Section 20 of the NDPS Act on the ground that no recovery was effected from him and also on the ground that the prosecution has not adduced any evidence to show that the place from which the goods were recovered was jointly owned and possessed by Lai Singh and Khusia Bai. We find that the acquittal order is mainly based on non-compliance with the mandatory requirement of Sections 41,42,50,52,55 and 57 of the NDPS Act, 1985. The Court has held that the case before it is a police case and not that of the Customs Department on the ground that inter alia that the Investigating Officer was sought to be examined as a witness for the State by the Additional Public Prosecutor. The Court has also held that Section 53 of the NDPS Act which deals with the power of the Central Government to investigate officers of the Excise, Narcotics, Customs Department with the powers of an officer incharge of a Police Station to investigate offences under this Act and Section 79 dealing with the applicability of the Customs Act to the NDPS Act do not help the case of the prosecution inasmuch as there is no notification of the Central Government vesting Shri V.K. Mahajan, Customs Inspector with the powers of a Police Officer under Section 53 and also for the reason that there is no allegation of the prosecution that the appellants were carrying narcotic drugs for the purpose of export to another country.
6. The relevant portion of the judgment of the Additional Sessions Court relating to non-observance of certain Sections of the NDPS Act are reproduced below :-
“11. It is clear from the statement of Inspector Balkar Singh (PW 3) that he has not complied with the provisions of Sections 52, 55 and 57 of the Act. Section 50 of the Act makes it mandatory for female accused to be searched by only female police officials and under Section 50(4) of the Act word ‘shall’ has been used which signifies a mandatory rule to be followed in every case and there is no exception to it. In the present case Khusia Bai is a female accused and there is no evidence that there was any female police official or female custom officer in the raiding party which raided the house of Smt. Khusia Bai and arrested her and taken her into custody and in custody Khusia Bai made the statement under Section 27 of the Evidence Act. So this provision admittedly has not been followed.
12. It is admitted by Inspector Balkar Singh (PW 2) that the grounds of arrest were not disclosed to the accused nor any memo was prepared in this respect. He had not asked the accused whether they wanted to get the search conducted before the Gazetted Officer or nearest Magistrate and no memo was prepared in this regard. No lady constable was associated nor Khusia’s personal search was conducted by any lady constable. This P.W. did not affix any seal on any of the recovered items. He did not produce the case properly before his superior officer. No independent witness was joined from the public. So, all this admitted statement definitely goes a long way to show that the mandatory provisions of Sections 41,42, 50,52, 55 and 57 of the Act were not complied with. This being the position in view of the case law Hakam Singh v. Union Territory Chandigarh – 1988 (2) RCA page 20 and Bliajan Singh alias Harbhajan Singh v. The State of Haryana -1988 (1) R.C.R. page 358. These proceedings are vitiated for non-compliance of the mandatory provisions. In these rulings, it was held that where these provisions were not followed, the proceedings become illegal and vitiated and the accused are entitled to acquittal.”
7. In the present appeals, however, it is not the contention of the appellants that the provisions of the Customs Act relating to search, seizure and arrest (Sections 100 to 105) have been contravened. Therefore, we are of the view that the acquittal of the appellants for non-compliance with the mandatory requirements of the NDPS Act relating to search, seizure and arrest will not tantamount to non-contravention of the Customs Act and the consequences flowing therefrom.
8. On the merits of the matter, the Additional Sessions Court has held that evidence of V.K. Mahajan, Customs Inspector and Sub-Inspector Balkar is full of discrepancies in all material particulars and that the percentage of the sample sent for chemical examination is too small to hold that the case of the prosecution has been proved beyond all reasonable doubts, in view of the rigorous provision of imprisonment for violation of Section 20 of NDPS Act. However, in the appeals before us what has to be seen is whether there has been any contravention of the provisions of the Customs Act, 1962 and whether the Department has discharged the burden of proof to establish such contravention. It is the case of the Department that the appellants have violated the provisions of Section 111 of the Customs Act as the charas seized is of Pakistan origin according to the statement of one of the appellants, viz. Mohan Singh, and the goods had been smuggled into India from a foreign country. The case of the Department is based upon the recovery of charas from Mohan Singh and Mangha Singh and also from the residence of Khusia Bai and upon statements of the appellants No. 1 to 4 herein which contained all the details unfolding the offence. It is pertinent to note that the statements have not been retracted till date and, therefore, are to be treated as voluntary and acceptable in evidence under Section 108 of the Customs Act, 1962. The statements of appellants at 1 to 4 can be relied upon against Khanda Singh also in the absence of any motive on their part to implicate him falsely and having regard also to the fact that it appears to be a case of conspiracy between all the appellants. We are, therefore, of the view that the burden of proof has been discharged by the Department and that the charge of contravention of Section 111 by all the 5 appellants stands established. We, therefore, uphold the confiscation of the seized goods and the penalties imposed. In the result the impugned order is confirmed and the appeals rejected.
Sd/-
(Jyoti Balasundaram)
Dated : 4-4-1994 Member (J)
S.K. Bhatnagar, Vice President
9. While agreeing with Hon’ble Member (J), I would also like to emphasise that prosecution under Section 20 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 and adjudication tinder Section 122 of the Customs Act, 1962 are independent proceedings; and as brought out in our order above, in the circumstances of this case in particular, acquittal of the Appellants on the grounds mentioned in the judgment does not affect the proceedings and the order under the Customs Act, 1962 in any way.
10. Furthermore, for the purpose of the Customs Act, 1962 it is enough to show that the goods were illegally imported goods and the percentage or content of the CHARAS is of no consequence except for the purpose of judging the seriousness and nature of offence.
11. Looking to the quantity, value and the nature of the goods, the offence is obviously of a very serious nature. In the circumstances, there is no reason to interfere with the order passed by the Adjudicating Authority.
12. Before parting, I may also mention en passant that the goods having been already confiscated absolutely under the Customs Act, 1962 rest in the Central Government and it is not clear how the same property has again been confiscated to the State by the order of the Additional Session Judge, Ferozepur. However, since none of the Appellants before us had claimed the goods and we have upheld the order of absolute confiscation passed by the Additional Collector of Customs, it is not necessary for us to go further into the matter.