ORDER
Vishnu Sahai, J.
1. Through this appeal the appellant challenges Ihe judgment and order dated 28-7-1994, passed by the Special Judge (N.D.P.S. Special Court) at Bombay, in N.D.P.S. Special Case No. 101 of 1990, whereby he has been convicted and sentenced in the manner stated hereinafter:-
(i) Under section 8(c) of the N.D.P.S. Act, to suffer R.I. for 10 years and to pay a fine of Rs. 1 lakh in default, to undergo R.I. for 2 years: and
(ii) Under section 8(c) r/w section 28 of the N.D.P.S. Act to undergo R.I. for 10 years and to pay a fine of Rs. 1 lakh in default to suffer R.I. for 2 years.
The substantive sentences of the appellant were ordered to run concurrently. 2. In short, the prosecution case runs as under:-
2A. On 28-10-1989, Talya Subbarao Jayaram P.W. 1 was attached to Air Intelligence Unit, B-Batch, as Superintendent and Munnalal Baburam, P.W. 4 was attached thereto as an Intelligence Officer. The said officers were posted at Module II of Sahar Airport. At about 3/3.30 a.m. the same day, they found the appellant at the Customs Clearance Counter. He was about to board Flight No. ET-661 of Ethiopian Airlines for Addis Ababa. They suspected him to be in possession of illicit drugs and expressed their intention to conduct his search. When they questioned him, in the presence of public panch Zulfikar Zahur Khan P.W. 8, whether he was carrying any narcotics either on his person or in his baggage, he replied in the negative. On examining his handbag, they found nothing incriminating. Not satisfied, they called dog handler Santosh Desai, P.W. 3 who came along with the sniffer dog ‘Pooja’, trained by him. Santosh Desai directed Pooja to sniff the handbag of the appellant but, Pooja gave no indication of concealment of any drugs therein. Thereafter, Santosh Desai ordered Pooja to sniff the person of the appellant and on sniffing it, Pooja gave a signal about the concealment of drugs in the slippers, worn by the appellant. Thereafter, the appellant was brought to the Air Intelligence Unit and his slippers were meticulously examined and Talya Jayaram and others found that there was a cavity in both of them, and from the cavities in each of them, polythene bags containing powder were recovered. Small quantity of the powder was tested with the help of U.N. Kit and the test indicated in positive presence of heroin. The aggregate weight of the powder recovered from each of the polythene bags was 490 gms. The recovery was made under panchanama and on the seals etc., signatures of the witnesses and appellant were taken. The appellant was carrying art Airlines ticket which was also taken under a panchanama.
2B. Thereafter, the same day summons were issued to the appellant for recording his statement under section 108 of the Customs Act. A warning was given to him that if he gave false evidence he would be liable for prosecution under section 193 I.P.C. Thereafter, his confessional statement was recorded. In the said statement, the appellant stated that he was unmarried; had studied up to 12th Standard in English medium and was jobless. He also stated therein that his cousin brother Godson Uzor who stays in Nigeria and was dealing in narcotic drugs along with his Pakistan National friend Mohd. Uttam, asked him whether he was willing to go to India to bring narcotic drugs for monetary considerations and as he was in need of money he agreed. Godson booked his ticket from Lagos to Delhi, where he arrived on 22-10-1989. Godson had also told him that at Delhi, a person would meet him who would give the address of Agra, where Mohd. Utman lived and the latter would give him some brown sugar and Airlines ticket for Delhi/Bombay/Addisababa. At Delhi, the appellant met fhe contact man who took him to Mohd. Utman who gave him one polylhene bag containing narcotic drugs and a Ethiopian Airlines ticket for sector Delhi/Bombay/Addis Ababa and Mohd. Utman asked him to conceal the brown sugar in slippers. On 28-10-1989, the appellant came by Flight from Delhi to Bombay. On 28-10-1989, when he was to leave from Sahar Airport for Addisababa, and had gone to the customs counter, where his boarding card was stamped and signed, two persons in plain clothes intercepted him and questioned him whether he was carrying any contraband like narcotics drugs to which he replied in the negative. Thereafter, the said persons introduced themselves as Customs Intelligence Officers, called a female dog and in the presence of two panchas, the dog started sniffing him and barking indicating contraband in his slippers, resulting in recovery of 490 gins of brown sugar from them.
The appellant was arrested and the grounds of arrest were communicated to him.
3. The investigation commenced and the sample of heroin was sent to the laboratory of D.Y.C.C. Customs House, Bombay and report of the Chemical Analyst showed that Diacetyl morphine was found in the sample.
The papers were put up before the Collector of Customs, for according necessary sanction for prosecuting the appellant. After the same was obtained, complaint Exhibit 26 was filed on 25-1-1990 against the appellant before the Special Court (N.D.P.S. Cases) for Greater Bombay.
4. In the trial Court, the appellant was charged on the counts mentioned in para 1. as also under sections 29 read with section 8(c) and 21 of the N.D.P.S. Act and under section 135(1){a) read with section 135(1)(ii) of the Customs Act, 1962,
During the course of the trial, the prosecution examined in all 9 witnesses. 3 of them namely Talya Jayaram, Munnalal Baburam and Zulfikar Zahur Khan, P.Ws. 1, 4 and 8 respectively were examined as witnesses of fact.
In defence, no witness was examined.
The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant on the counts mentioned in para 1. He however, acquitted him on the other two counts, referred to in the operative part of the Judgment.
Hence, this appeal.
5. We have heard Mr. S.B. Keswani for the appellant, Mr. R.M. Agarwal with Mr. D.T. Palekar and Mr. P.S. Thakur for the respondent No. 1 and Mr. S.R. Shinde, Additional Public Prosecutor for respondent No. 2. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the appellant’s confessional statement; the retraction of his confessional statement; statement of the appellant recorded under section 313 Cr.P.C.; and the impugned judgment.
After reflecting over the matter, we are implicitly satisfied that on merits, the conviction of the appellant, warrants no interference but we feel the sentence awarded to him is excessive and warrants reduction.
6. Mr. Keswani learned Counsel for the appellant made a large number of submissions. He strenuously urged that in the instant case, the trial of the appellant was vitiated in-as-much as he had not been apprised by the officers, as mandated by section 50 of the N.D.P.S Act, of his right to be searched before a Magistrate or a Gazetted Officer. We may mention that the learned Counsel for the respondents do not dispute that the appellant was not apprised of such a right. However, their contention is fhat since it was a case of chance recovery, the right to be searched before a Magistrate or a Gazetted Officer, would not be available to him.
To fortify his submission, Mr. Keswani placed reliance on para 26(1) and (5) of the decision of the Apex Court , in !he case of State of Punjab, petitioner v. Balbir Singh, respondent, wherein the Apex Court observed thus :-
“(1) If a police officer without any prior information as contemplated under the provisions of the M.D.P.S. Act, makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psygholropic substance then the police officer, who is not empowered should inform the empowered officer who should, thereafter proceed, in accordance with the provisions of the N.D.BS. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the N.D.P.S. Act.”
“(5) On prior information, the empowered officer or authorised officer while acting under sections 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires failure to take him to the Gazetted Officer or the Magistrate would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed, whether such person opted for such a course or not would be a question of fact.”
Mr. Keswani also referred to some later decisions of the Supreme Court wherein the said view of the Supreme Court has been followed but, to eschew prolixity, we are not adverting to them.
6A. Mr. Keswani also urged that even if it is assumed that the recovery made from the appellant was a chance recovery, the right of being searched before a Magistrate or a Gazetted Officer, as mandated by section 50 of the N.D.P.S. Act would still be available to it. To fortify his submission, Mr. Keswani placed reliance on the observations contained in para 3 of the decision of the Supreme Court in the case of Mohinder Kumar, appellant v. The State, Panaji Goa, respondent, which read thus :-
“In the instant case, the facts show that he accidentally reached the house while on patroling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But, when the conduct of the accused persons raised a
suspicion he went there and effected the search, seizure and arrest. It,
was, therefore not on any prior information but he purely accidently
stumbled upon the offending articles and not being the empowered
person, on coming to know about the accused persons being in custody
of the offending articles, he sent for the panchas and on their arrival drew
up the panchanama. In the circumstances, from the stage he had reason
to believe that the accused persons were in custody of narcotic drugs
and sent for panchas. he was under an obligation to proceed further in
the matter in accordance with the provisions of the Act. Under section
42(1) proviso, if the search is carried out between sun set and sunrise,
he must record the grounds of his belief. Admittedly, he did not record
the grounds of his belief at any stage of the investigation subsequent to
his realising that the accused persons were in possession of charas. He
also did not forward a copy of the grounds to his superior officer, as
required by section 42(2) of the Act because he had not made any
record under the proviso to section 42(1). He also did not adhere to the
provisions of section 50 of the Act in that he did not inform the person
to be searched that if he would like to be taken to a Gazetted Officer or
a Magistrate, a requirement which has been held to be mandatory, In
Balbir Singh’s case, it has been further stated that the provisions of
sections 52 and 57 of the Act, which deal with the steps to be taken by
the officer after making arrest or seizure are mandatory in character. In
that view of the matter, the learned Counsel for the State was not able
to show for want of material on record, that the mandatory requirements
pointed out above had been adhered to. The accused, is therefore,
entitled to be acquitted.”
7. Mr. Keswani’s contention is that the evidence on record clinchingly shows that
prior to the search of the slippers of the appellant, it had become crystal clear to the
witnesses of fact, that the appellant was possessing the contraband and therefore, in
view of the ratio of , the moment they became
aware of this, they should have asked the appellant whether he wanted to be searched
before a Magistrate or a Gazetted Officer. In this connection, it would be useful to refer
to the evidence of Talya Jayaram RW. 1, the Intelligence Officer and Santosn Desai
RW. 3. Talya Jayaram in his cross-examination in para 10 stated thus :–
“The sniffer dog was ordered to sniff the person of the accused by the dog
handler A.S.I. Shri S.R. Desai. After sniffing the chappals of the accused
the dog started barking and it is an indication of a concealment of
narcotic drugs in the chappals of the accused. The sniffer dogs are
specially trained to sniff the concealed narcotics in the articles and
baggages of persons of the carrier. Accused was carrying one handbag
as his luggage.”
Santosh Desai in his statement, contained in para 3 stated as under :–
“I ordered the sniffer dog to. sniff the body of the accused. Sniffer dog ‘Pooja
gave indication towards the legs of the accused and started barking. As
the sniffer dog glanced towards the legs of the accused and started
barking, it indicated that some drugs were concealed in that part of the
body of the accused. At that time chappals were worried by the accused.
The sniffer dogs are specially trained to find out concealed drugs either
on the person or in the baggages of the suspects. The sniffer dogs are
in service of the department.”
7A. A perusal of the extracted passages from the statements of Tatya Jayaram and Santosh Desai would show that prior to searching the slippers of the appellant, the witnesses of fact had come to know that the appellant was possessing narcotic drugs and that being so, in our view, prior to the search of the slippers of the appellant, the appellant should have been asked whether he wanted his search to be carried out before a Magistrate or a Gazetted Officer, as required by section 50 of the N.D.P.S. Act.
We may mention that the decision supra, has been followed by a Division Bench of this Court, in Criminal Appeal No. 204 of 1995, Mrs. Ndukwe Onnobe,.. appellant v. Asst. Collector of Customs & another ….respondents, decided on 24-9-1997, reported in 1998 Bom.C.R.(Cri.) 575 to which, one of us (Vishnu Sahai, J.) was a party. In the said decision, the Division Bench in para 7, relied upon the observations contained in para 3 of , supra.
8. Mr. R.M. Agarwal, learned Counsel for respondent No. 1 strenuously urged that in cases of chance recovery, the accused has no right to be informed whether he wanted to be searched before a Magistrate or a Gazetted Officer, as mandated by section 50 of N.D.P.S. Act, for, in his contention section 50 of N.D.P.S. Act, would not be applicable to such a case. To buttress his submission, Mr. Agarwal relied upon para 26(5) of the decision of the Apex Court, (supra) which has been extracted by us and also on a Full Bench decision of this Court in the case of Ebanezer Adevya @ Manday Optor v. B.S. Rawat, . We have perused the said decisions and in our judgment, they do not further the submission of Mr. R.M. Agarwal.
We would first take up the decision supra. In our view, para 26(5) of the said decision has to be read along with para 26(1) of the said decision. It is true that para 26(5) deals with recovery of prior information but para 26(1) in our judgment, covers cases of both recovery on prior information and chance recovery. To appreciate such an inference, it would again be appropriate to reproduce para 26(1). The said para reads as follows :—
“(1) If a police officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage., section 50 of the N.D.P.S. Act, would not be attracted and the question of complying with the requirements thereunder would notarise. If during such search or arrest there is a chance (of) recovery of any narcotic drugs or psychotropic substance then the police officer who, is not empowered should inform the empowered officer who should there after proceed in accordance with the provisions of the N.D.P.S. Act. It he happens to be an empowered officer also, then from that stage, onwards, he should carry, out the investigation in accordance with the other provisions of the N.D.P.S. Act.”
8A. In our view, para 26(1) and 26(5) have to be read Harmoniously and conjointly, and once that is done, there is no escape from the conolusion that the right to be searched before a Magistrate or a Gazetted Officer, applies both to cases of recovery on prior information and chance recovery.
8B. Even reading para 26(5) of supra, in isolation, there remains not an iota of doubt that even in cases of chance recovery in view of the decision of the Apex Court, supra, the accused has to be informed whether he would like to be searched before a Magistrate or a Gazetted Offcer.
This is clear from the following lines contained in para 3 of the said decision which read thus :—
“….. in the circumstances, from the stage, he had reason to
believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act …..”
“He also did not adhere to the provisions of section 50 of the Act in that he
did not inform the person to be searched that if he would like to be taken
to a Gazetted Officer or a Magistrate, a requirement which has been held
to be mandatpry”
9. We have perused the judgment of the Full Bench reported in, 1996(4) Bom.C.R. 183(F.B.) : 1995(2) All Maharashtra Reporter, page 402 and we find that in It, the learned Chief Justice (Justice M.B. Shah) who spoke for the Full Bench, in para 5, has expressly quoted the above passage from Mohinder Kumar’s case.
We find that the said judgment cannot be construed as having laid down the ration that in cases of chance recovery, the right to be searched before a Magistrate or a Gazetted Officer, would not be available to the accused. The question which the Full Bench considered was the meaning of expression to search any person as used in section 50 of the N.D.P.S. Act and after an elaborate discussion of the entire case law, the learned Chief Justice concluded in para 22 that the personal search would be confined to Clause (a) (b) of para 5, Para 5{a)(b) reads as under :– ”
a) the search of articles on the person or body of the person;
b) would include search of articles in immediate possession such as bag and other luggage carried by him or in physical possession of the person to be searched.”
The Full Bench in para 3 in respect of Mohinder Kumar’s case observed’ as follows:-
“On the basis of the aforesaid judgment, it is contended that even in a case
where the search had been carried out without prior information and the
officer carrying out the search himself happens to be an empowered
officer, then from the stage he had reason to believe that the accused
person were in custody of narcotic drugs, he is under an obligation to
follow the mandatory procedure prescribed under section 50 of the Act.”
In our view, the judgment of the Full Bench shows that it has followed the
decision supra.
9A. It would also be pertinent to point out that in a Division Bench decision of this Court rendered on 24-9-1997 in Crimirlal. Appeal No. 204 of 1995, Mrs. N.D. Ukweonohe v. Asst. Collector of Customs; A.I.U. Bombay and another. T.K.
Chandrasekhara Das, speaking for the Division Bench in para 7 has observed that Mohinder Kumar’s case has been followed in the Full Bench decision of this Court in the case of Ebanezer Adevya @ Manday Optor v. State of Maharashtra.
9B. For the said reasons, we are unable to accept the contention of Mr. R.M. Agarwal that the right to be searched before a Magistrate or a Gazetted Officer, in terms of section 50 of N.D.P.S. Act would not be available to the accused from whom chance recovery has been effected.
9C. Before parting with this aspect, it would be pertinent to point out that in
substance, it would be wrong to characterise the recovery, in this case as a chance
recovery. The evidence of Talya Jayaram P.W. 1 and Santosh Desai P.W, 3, which we
have extracted in para 7. would show that when female dog Pooja barked towards the
slippers of the appellant, it became clear that narcotic drugs were concealed in them.
In such a situation, their recovery which was made immediately thereafter from the
cavities inside’the slippers of the appellant cannot be said to be a chance recovery.
Hence, section 50 of N.D.P.S. Act would be attracted and since the officers before
making the recovery, did not ask the appellant whether he wanted to be searched
before a Magistrate or a Gazetted Officer, the recovery was in violation of section 50
of N.D.P.S. Act and vitiated in law.
We may mention that a recovery made in circumstances identical to the present
case, came up for consideration before a Division Bench of this Court, in Criminal
Appeal No. 204 of 1995 decided on 24-9-1997, Mrs. N.D. Ukweonohe v. Asst.
Collector of Customs A.I.U. Bombay and another. To the said desision one of us
(Vishnu Sahai, J.) was a party. Speaking for the Bench, T.K. Chandrasekhara Das)
observed in para 8 thus :–
“The moment the authorities were suspicious that the appellant was carrying
contraband goods, they asked her to remove the shoes and also to open
the brief case.
This conduct of P.W. 2 and other officers who were present at the time of search, would show that it cannot be said to be a chance recovery.”
In the said case, the Bench took the view that in-as-much as the appellant was not informed whether she would like to be searched before a Magistrate or a Gazetted Officer, there was infraction of the provisions of section 50 of N,D.P.S. Act and the recovery was vitiated in law.
10. We however, do not agree with the contention of Mr. Keswani that denial to the appellant of the right of being searched before a Magistrate or Gazetted Officer, in terms of section 50 of N.D.P.S. Act would vitiate his entire trial. In our view, Mr. Agarwal is absolutely correct when he urges that the subsequent decisions of the Supreme Court, render the submissions of Mr. Keswani tp be incorrect in law. In this connection, Mr. Agarwal placed reliance on the decision of the Apex Court reported in State of H.P. v. Pirthichand, , and State of Punjab v. Jasbir Singh, 1995(4) Crimes, 765, and the Division Bench decision of our Court, reported in Wingsa Oleruloje v. R.N. Kakkar, 1997(4) Learned Judgments, page 853.
In , State of H.P. v. Pirthichand & another, the Supreme Court in paras 4, 5, 7 and 14 has observed thus :–
Para 4: “The Evidence Act permits relevancy as the only test of admissibility
of evidence. The evidence obtained under an illegal search and seizure
does not exclude relevant evidence on that ground, ….. When the
test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure is not liable to be shut out”.
Para 5: “It would be seen that the organised traffic in contraband generates deleterious effect on the national economy affecting the vitals of the economic life of the community. It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. Inspite of illegal search property seized, on the basis of said search, it still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.”
Para 7: “It would thus be settled law that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.”
Para 14: “The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in panchanama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected i.e. panchanama etc. nonetheless would be admissible at the trial. At the stage of filing charge sheet, it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing illegality to discharge the accused on the ground that section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into.”
To the same effect, are the observations of the Supreme Court in the case
reported in 1994(4) Crimes page 765, State of Punjab v. Jasbir Singh, wherein para
2, the Supreme Court observed thus :–
“However, evidence collected in breach of mandatory requirements does not become inadmissible. It is settled law that evidence collected during investigation in violation of the statutory provisions does not become inadmissible and trial on the basis thereof, does not get vitiated. Each case has to be considered on its own backdrop.”
The said decisions of the Apex Court were relied upon in the Division Bench
decision of our Court, reported in 1997(4) Learned Judgments page 853, Wingsa Oleruloje
and another v. R.N. Kakkar and another. In para 34, the Division Bench observed :–
“The Court would have to consider in each case, other evidence on record and would have to come to conclusion as to whether such an evidence is sufficient to satisfy the Court to come to the conclusion that the accused was found in possession of narcotic drugs or psychotrophic substance and has committed an offence punishable under the provisions of the N.D.P.S. Act.”
11. The question is whether the other evidence on record is sufficient to bring home the charges on which the appellant has been found to be guilty by the learned trial Court. Our answer to the said question is in the affirmative.
12. The main-stay of the other evidence adduced by the prosecution is the statement of the appellant recorded under section 108 of the Customs Act. In view of the provisions contained in section 108 sub-clause (4), the said statement would be substantive evidence. In para 2(B) we have set out in detail the averments contained in the said statement of the appellant. In it, he has stated that at the behest of his cousin Godson Uzor, who stays in Nigeria and was dealing in narcotic drugs along with his Pakistani friend Mohd. Utman, he (the appellant) came to Delhi on 22-10 1989 to smuggle narcotic drugs like heroin from India, as arranged from before when he landed at Delhi, a contact man took him to Mohd. Utman at Agra and the latter delivered him the brown sugar along with an Airlines Ticket for Delhi/Bombay/Addis-Ababa. On the said ticket, he came to Bombay and on 28-10-1989, while he was trying to leave for Nigeria by Ethiopian Airlines, after concealing brown sugar in the cavities of slippers, he was apprehended at the customs counter and on being searched with the assistance of a female dog, 490 gms of brown sugar was recovered from the cavities the said slippers.
13. We have meticulously perused the statement oi the appellant recorded under section 108 of the Customs Act and find that the same was voluntarily recorded and is an unequivocal confession of the appellant of his guilt.
It is true that the appellant retracted having made this statement but to us, the retraction is a tissue of lies. The retraction Exhibit 34 which was made on 25-7-1994, at the fag end of the trial reads thus :–
“1) That the accused was arrested by customs officials on alleged charge of possession and attempt to export brown sugar on 28-10-1989.
2) That the customs officers took signatures of the alleged accused on certain blank papers by force at the very bottom of papers and under duress. The accused further says that he was tortured by customs officers and as a result of that torture, the accused suffered neck injury.
3) The accused further says and submits that the accused had no knowledge as to what they have done with those signatures till the receipt of copies of investigation papers by the Advocate of the accused.
4) The accused came to know that the customs officers have used said signatures for the purpose of the alleged statements of the accused under section 108 of Customs Act.
5) The accused therefore says and submits that he had never given/made any statements to the customs officers. The accused therefore most humbly submits that the alleged statement on which the prosecution wants to rely upon shall be discarded in toto.
13A. We make no bones in observing that had the retraction been genuine, it would have been made not nearly five years after the statement of the appellant had been recorded under section 108 of the Custom Act but much earlier. In para1 2, the appellant has stated that as a result of the torture by the customs authorities, he had suffered a neck injury and was made to sfgn on blank papers. If this was true, he would have pointed it out to the Magistrate when he was produced before him on the following day.
Between 28-10-1989 the date on which the confession was made and 25-7-1994, the date when it was retracted, the appellant had tons of opportunity to make the said retraction. Mr. Keswani failed to give us any satisfactory answer for this belated retraction.
14. We would be failing in our fairness if we do not refer to some of the criticisms canvassed by Mr. Keswani in respect of the confessional statement o! the appellant recorded under section 108 of the Customs Act.
Mr. Keswani urged that there is some intrinsic material to show that the said confessional statement was not voluntarily made by the appellant. He urged that in the said statement, there was a mention that the appellant was sniffed by a female dog, in the presence of panch witnesses; his slippers were searched; and the goods recovered from the appellant were seized under the reasonable belief that they were to be smuggled out of India and hence liable for confiscation, under the provisions of the Customs Act, 1962 read with Narcotic Drugs and Psychotrophic Substances Act, 1985. Mr. Keswani urged how could the appellant have the knowledge about things like female dog, panch witnesses and the provisions he had violated. In his contention, their incorporation in his statement under section 108 of the Customs Act, ipso facto shows that the said statement is not voluntary.
Mr. Keswani also pointed out that the statement showed that the appellant had studied up to High School level i.e. 12th Standard in English Medium and if he wanted to make a confession he would have made it in his own handwriting. We have reflected over these criticisms. In our judgment, they do not affect the core of the confessional statement.
The evidence is that the appellant was interrogated in English language by Talya Jayram RW. 1; he replied to the interrogation in English language; and the statement was taken down by the Intelligence Officer Munnalal Baburam RW. 4. It may be that the innocuous circumstances pointed out by Mr. Keswani crept in as a result of such a procedure.
For the said reasons, we find no merit in the said criticisms of Mr. Keswani and accordingly reject it.
15. We are implicitly satisfied that having failed to shatter the prosecution evidence, during trial, the retraction was the last desperate effort by the appellant to absolve himself of the guilt. The Supreme Court in para 21 in the case of K.I. Pavunny v. Asst. Collector (HO) Central Excise Collectorate, Cochin, , has laid down that if the Court is satisfied that the confession is voluntary and true, then there is no ‘egal bar for it to record/sustain a conviction on it. But it observed that the rule of prudence and practise does require that the Court should scrutinise the corroboration of the retracted confession from the other evidence. Such a corroboration need not be in respect of each fact or circumstance contained in the confession. It is enough that the confession receives a general corroboration. The ratio laid down in the said decision is binding on us; We have already held that the confession was both true and voluntary.
16. In our view, the retracted confession of the appellant receives corroboration from the Flight Manifest Exhibit 28 which shows that the appellant was booked on a Flight for Addis Ababa on the date and time of recovery; the Airlines-ticket and the boarding pass of the appellant both of which were seized under a panchanama; and the panchanama of the recovery of contraband from the appellant. In this connection, it would be proper to refer to para 14 of supra, wherein the Apex Court has observed :—
“The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in panchanama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected i.e. panchanama etc, nonetheless would be admissible at the trial.”
17. To sum up, in our judgment, there was sufficient evidence to warrant the connection ot the appellant for offences mentioned in para 1.
18. Mr. Keswanj finally contended that the sentence awarded to the appellant is excessive and calls for reduction. We find some merit in this submission. So far as the jail sentence of the appellant and the quantum of fine imposed on him is concerned, we find that it is the minimum stipulated under the N.D.P.S. Act. We however, feel that the sentence imposed in default of payment of fine namely two years R.I., is far too excessive and calls for reduction. We feel that the ends of justice would be squarely satisfied if the sentence in default of payment of fine on both the counts is reduced from two years R.I. to six months R.I.
19. In the result, this appeal is partly allowed. Although, we maintain the jail sentence of the appellant and the sentence of fine, on both the counts, but we reduce the sentence in default of payment of fine on both the counts from two years R.I. to six months R.I. The appellant is in jail and shall be released therefrom only after he serves out his sentence.
Before parting with the judgment, we would like to record our appreciation for the assistance rendered to us by the learned Counsel for the parties in the disposal of this appeal
20. Appeal partly allowed.