{"id":16801,"date":"2008-01-25T00:00:00","date_gmt":"2008-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-superintendent-of-central-vs-prem-pratap-singh-sisodia-on-25-january-2008"},"modified":"2019-04-12T14:21:14","modified_gmt":"2019-04-12T08:51:14","slug":"the-superintendent-of-central-vs-prem-pratap-singh-sisodia-on-25-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-superintendent-of-central-vs-prem-pratap-singh-sisodia-on-25-january-2008","title":{"rendered":"The Superintendent Of Central … vs Prem Pratap Singh Sisodia on 25 January, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
The Superintendent Of Central … vs Prem Pratap Singh Sisodia on 25 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/01\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE S.ASHOK KUMAR\n\nCrl.A.(MD).No.976 of 1999\n\n\nThe Superintendent of Central Excise\nCustoms Preventive Unit,\nTuticorin.\t\t\t\t\t\t... Appellant\t\n\nVs\n\n1. Prem Pratap Singh Sisodia\n   alias Prem Singh  Sisodia\n   alias Prem Pratap Sisodia\n2. Anil Bhai Balwant Rai Desai\n3. D.Jeyaseelan (died)\n4. D.Amalraj\t\t\t\t\t\t... Respondents\n\n\nPrayer\n\nCriminal Appeal is filed under Section 378 Cr.P.C. against the\njudgment dated 28.5.1999 on the file of the Special District and Sessions Judge,\nMadurai, in S.C.No.325 of 1995.\n\n!For Appellants\t\t\t... Mr.C.Arulvadivel alias Sekar\n \t\t\t\t\t\t\n\t\n^For Respondents   \t     \t... Mr.B.Kumar, S.C., for\n\t\t\t\t     Mr.K.Chandrasekar\n\t\t\t\t    Mr.N.Mohideen Basha\n\t\t\t\t           for R.4\n:JUDGMENT\n<\/pre>\n
\tThe State, represented by Superintendent of Central Excise Customs
\nPreventive Unit, Tuticorin, has preferred this appeal against the acquittal of
\nthe respondents herein for the alleged offences under sections 8 (c), 22, 29 of
\nNDPS Act and section 135A of customs Act passed by the Special District and
\nSessions Court (The Narcotic Drugs and Psychotropic substances Act Court),
\nMadurai in C.C. No.325 of 1995. During pendency of this appeal, the 3rd
\nrespondent died.\n<\/p>\n
2.\tThe charges against the respondents who had been arrayed as A1 to A4
\nbefore the trial court was that on the basis of an information the officers
\nattached to customs Sea Base Party, Tiruchendur and Divisional Preventive Unit,
\nTuticorin conducted search in the thorny bushes situated on the seashore of
\nOdakarai adjacent to Kayalpattinam on 23.11.1994 and recovered 48 HDPE bags
\nwhich contained 50 numbers of polythene packets. Each packet contained brown
\ncoloured Mandrax tablets with mark “M” one side and swastick on the other side.
\nThe seized goods were brought to customs office at Tuticorin and on examination
\nthe Mandrax tablets found to weighing 1462.5 kg.  Representative samples were
\ntaken and sent to customs House, Madras for chemical analysis and the report
\ndated 29.11.1994 confirmed each sample answered test for methaqualone. Again on
\ninformation, on 03.12.1994, the officers went to the spot of Odakarai Seashore
\nnear Kayalpattinam and searched the thorny bushes and recovered one HDPE bag
\nwhich contained Mandrax tablets in small 50 polythene packets weighing about 50
\nkg.  It was seized under Mahazar. As a follow up action, the officers searched
\nJayalakshmi Rice Mill at Manalkundu Alwarthirunagar on the night of 12.12.1994
\nin the presence of its owner V.Gothandraman and recovered 6 circular shaped
\nplywood planks from a pit aside a bushy area in the open place of the Rice Mill.
\nThese wooden planks were found to be used for concealment of Mandrax tablets
\nkept inside the cylinders.  A statement obtained from Gothandaraman revealed
\nthat on 01.11.1994, his relative Amal @ Amalraj of Moolakarai brought 7
\ncylinders to the Rice Mill and subsequently when he was out of station, cut
\nopen the cylinders and removed them from the Rice Mill.  He handed over Invoice
\nNo.168 dated 21.10.1994 of M\/s.Mehul Agencies in which the consignee name was
\nmentioned as M\/s. Meenakshi Enterprises, Tuticorin which was later found to be
\nfictitious.  The invoice was handed over by the said Amalraj to Gothandaraman.
\nA1 and A2 were apprehended on 15.12.1994 at Patel Roadways Office, Tuticorin
\nwith regard to the seizure of Mandrax tablets in 7 cylinders on 12.12.1994 and
\nrelevant documents were seized from them and statements dated 17.12.1994 and
\n18.12.1994 were recorded from them  in which they admitted that they sent 7
\ncylinders containing Mandrax tablets with fictitious consignor M\/s. Mehul
\nAgencies, Surat and consignee Meenakshi Enterprises to Tuticorin as the
\nconsignment Note No.437232 dated 21.10.1994 and Invoice No.168 dated 21.10.1994.
\nThe said 7 cylinders were taken delivery by Dharmalinga and Amalraj of
\nMoolakarai on 01.11.1994 from Patel Roadways Office, Tuticorin and transported
\nthem to Jayalakshmi Rice Mill and cut open the cylinders, removed the Mandrax
\ntablets and packed in 100 gunny bags and took them to Odakarai Sea shore with
\nthe help of A3 and A4, Dharmalingam loaded 50 bags in a Vallam on 21.11.1994
\nbelonged to A3 and A4 and loaded 50 bags of Mandrax tablets in another Vallam of
\nVathe Nasreen and proceeded to the Ship anchored in the sea.  The Vallam of
\nVattu Nasreen with 50 bags containing Mandrax tablets returned to Odakarai
\nseashore without reaching the ship because of rough sea.  Thereafter, the 50
\nbags were unloaded at the Odakarai seashore and concealed in two different
\nplaces in the throny bushes which were seized by the officers.  A3 and A4 were
\napprehended on 01.02.1995, statements were recorded from them and remanded to
\ncustody on 02.02.1995.  Dharmalingam and Amalraj of Moolakarai were absconding
\nand not arrested and not made as accused.  Therefore, the accused had committed
\nthe offences under section 8 (c) punishable under section 22 and 29 of NDPS Act
\nand section 135 A of customs Act.\n<\/p>\n
3.  Accordingly, charges were framed and when the accused were questioned about
\nthe same, they denied having committed any of the offence charged against them.
\nHence the trial was conducted by the Sessions Court.\n<\/p>\n
4. On behalf of the prosecution Pw1 to Pw17 were examined and several documents
\nwere marked as Ex.P1 to Ex.P60.\n<\/p>\n
5. PW-1, Khader Rehman, Assistant Commissioner of Customs, preventive, Tuticorin
\nhas stated in his evidence that on 23.11.1994, he received an information report
\nEx.P2 from Pw13, P.Ganesan, Inspector in charge customs Sea Base Party,
\nTrichendur.  After that, he along with officers rushed to seashore of Odakarai
\nand recovered after search of the throny bushes, 48 HDPE bags of Mandrax
\ntablets. They were seized under Mahazar and handed over the same to Pw2 for
\nfurther action.  A report under section 57 was submitted to J.K.M. Sekar, Addl.
\nCommissioner Customs on 24.11.1994 and it was Ex.P3. Again on 03.12.1994, on
\ninformation he along with officers conducted search in thorny bushes of Odakarai
\nseashore and recovered one bag containing 50 polythene packets totally weighing
\n30 kg. It was seized under Mahazar Ex.P4, Pw2 filed a report under section 57 to
\nPw1 and it was Ex.P5. On 12.12.1994, one Muthukrishnan, Inspector CPU, Tuticorin
\nfiled an information report to DRI about the availability of contraband in the
\npremises of Patel Roadways, Tuticorin and Pw1, along with officers rushed to the
\nspot and seized 7 cylinders of Mandrax tablets along with connected documents
\nExs.P7,8 and 9 under Mahazar Ex.P6. On 15.12.1994, Pw12 submitted Ex.P11, Ex.P12
\nwith a covering letter Ex.P1. Pw2 apprehended A1 and A2 on 15.12.1994 from the
\npremises of Patel Roadways and recovered certain documents and they were brought
\nto customs office and some documents were seized in the presence of Pw1. Section
\n57 reports of Pw2 were marked as Ex.P13 and Ex.P14.\n<\/p>\n
6. PW-2,Gnansekaran, Superintendent, of Customs Preventive Unit, Tuticorin
\ncorroborated the evidence of Pw1 with regard to the seizure of Mandrax tablets
\non 23.11.194 and 03.12.1994 and stated about the sending of the Mandrax tablets
\nfor chemical laboratory test Ex.P17 and the report Ex.P18.  Pw2 examined Pw4 and
\nPw5 on 01.12.1994 who had spoken about Dharmalingam. Their statements under
\nEx.P19 and Ex.P20 were also recorded. One Mookandi was also examined and his
\nstatement Ex.P21 was also recorded.  The seized 48 bags were deposited to a
\ngodown at Madurai on 07.12.1994 and the deposit memo was Ex.P27.  The deposit
\nmemo of one bag was Ex.P28.  Pw2 stated about the seizure of 7 cylinders and the
\nconnected documents at Patel Roadways Office, Tuticorin on 12.12.1994 and the
\nMahazar was Ex.P6.  The report under section 57 was Ex.P29.  Pw2 stated about
\nthe search and seizure of six circular shaped plywood planks and the invoice
\nEx.P30 at Jayalakshmi Rice Mill on 12.12.1994 under Mahazar Ex.P32.  On
\n13.12.1994, Pw3 was examined. His statement was recorded under Ex.P33.  Pw7 was
\nexamined and his statement under Ex.P35 was recorded from him. Rajamani, Patel
\nRoadways Manager was examined and his statement in Ex.P36 was recorded.  On
\n13.12.1994, Ex.P36, 37 and 38 were recovered from Patel Roadways Office under
\nMahazar Ex.P39.  On 15.12.1994, Pw8 was examined and his statement Ex.P41 was
\nrecorded. Under Mahazar Ex.P42, some more documents were seized from A1 and A2.
\nOn 16.12.1994, Pw6 was examined and he identified A2 as the person who has given
\nthe documents to him on 21.10.1994 at Surat and signed on the photo of A2 M.O.8.
\nHis statement was Ex.P44. One Renganathan was examined and his statement Ex.P45
\nwas also recorded. A1 and A2 were examined on 17.12.1994 and 18.12.1994 and
\ntheir statements are Ex.P46 and Ex.P47.  Both A1 and A2 were arrested on
\n18.12.1994.  The arrest memos are Ex.P48 & 49.  The report under section was
\nEx.P13. On 01.02.1995, A3 and A4’s statements in Ex.P50 and 51 were recorded. On
\n02.02.1995, further statements in Ex.P52 and 53 were recorded from A3 and A4.
\nThe arrest memos of A3 and A4 are Ex.P54 and 55, dated 02.02.1995 and the remand
\nreport was Ex.P.56.  Pw2 filed complaint Ex.P58 on 27.03.1995. The connected
\naccused were not arrested since they were absconding all along. Pw2 admitted
\nthat A1 and A2 were under their custody from 15.12.1994 to 19.12.1994 and also
\nadmitted presence of several persons and officers and sepoys on those dates
\nexcept 19.12.1994 during the interrogation of A1 and A2.  He also admitted that
\nphotos of A1 and A2 were taken, two statements were recorded on 04.01.1995 and
\n12.01.1995 from A1 and A2 in which they denied their connection with the seizure
\nof Mandrax tablets and the documents seized on 12.12.1994 at Patel Roadways in
\nwhich the signature G.Rana was found was not sent for any expert for comparison
\npurpose. Pw2 also admitted that the signatures of A3 and A4 were not found in
\ntheir statements and the person Amalraj of Moolakarai who has unloaded 7
\ncylinders in the Rice Mill Jayalakshmi was not  4th accused.  Both were
\ndifferent and the Amalraj of Mollakarai mentioned in the statement of Pw7 was
\nstill  absconding.  Pw2 also admitted that A3 and A4 were under their custody on
\n01.02.1995 and 02.02.1995 and their statements were word by word one and the
\nsame, except the names.  Pw2 admitted that no coercive steps under law were
\ntaken against Dharmalingam to attach and seize his properties.  Pw2 also
\nadmitted that the seizure in C.C.No.113\/95 was later in point of time to the
\nseizure in the present case C.C. No.325\/95 and as per their investigation,
\nDharmalingam and Amalraj had taken delivery of 7 cylinders in the present case
\nC.C.No.325\/95 and the names of Dharmalingam and Amalraj were mentioned in the
\ninformation in C.C. No.113\/95 to take delivery of cylinders from Patel Roadways.
\nHowever, both Dharmalingam and Amalraj were not shown as accused in C.C.
\nNo.113\/95 as well as in C.C. No.325\/95.\n<\/p>\n
7. PW-3, Jalasteen @ Gandhi, working as loadman in Patel Roadways, Tuticorin has
\nstated that he loaded 7 cylinders from Patel Roadways Office and unloaded the
\nsame in Jayalakshmi Rice Mill, Alwarthirunagari.  His statement was recorded
\nunder Ex.P.33 on 13.12.1994.\n<\/p>\n
8. PW-4, Sekar @ Chandrasekar, who worked for Dharmalingam earlier for his
\nillegal activities of smuggling of gold and narcotic tablets has stated that he
\nknew A3 and A4.  His statement was recorded in Ex.P19 on 01.12.1994.\n<\/p>\n
9. PW-5, Madhavaraj @ Madhavan has corroborated the evidence of Pw4. His
\nstatement was recorded in Ex.P20.\n<\/p>\n
10. PW-6, Sivaraj, lorry driver who has driven the lorry containing 7 cylinders
\nstarted from Surat on 21.10.1994 to Tuticorin on 24.10.1994 has deposed that the
\nbill and invoice were handed over to him by A2 at Surat.  He identified A2.  He
\nfurther stated that the photos of A2 was shown to him and signed on it which is
\nM.O.8.  His statement was recorded in Ex.P44.\n<\/p>\n
11. PW-7, Gothandaraman, owner of the Jayalakshmi Rice Mill, Alwarthirunagari
\nhas stated about his relative Amalraj of Moolakarai who loaded 7 cylinders in
\nhis mill on 01.11.1994 and the cutting open of the cylinders and removal of the
\nsame in his absence and the invoice Ex.P30 which was handed over by the said
\nAmalraj to him. He signed in the Mahazar, Ex.P32.  His statement was recorded in
\nEx.P35 on 13.12.1994.  He admitted that the invoice was with him from 01.11.1994
\nto 12.12.1994 and he did not go to police even though he sensed some illegal
\nactivities have taken place in his Rice Mill. He also stated that the said
\nAmalraj was not A4.\n<\/p>\n
12. PW-8, V.V.Subramaniam, Branch Manager, Patel Roadways, Tuticorin has stated
\nabout the search and seizure of 7 cylinders and the documents under Mahazar
\nEx.P6, dated 12.12.1994.  Earlier on 24.10.1994, one consignment of 7 cylinders
\nwere taken delivery by one Dhanraj on 01.11.1994 from Patel Roadways Office.
\nHis statement was recorded in Ex.P41 on 15.12.1994.\n<\/p>\n
13. PW-9, Chinnasamy, Customs Inspector, Tuticorin has stated about the search
\nand seizure of one bag of Mandrax tablets at Odakarai on 03.12.1994 and the
\nseizure of documents Ex.P37, 38 from Patel Roadways on 13.12.1994 through a
\nMahazar Ex.P39.\n<\/p>\n
14. PW-10, Niranjan Shah, Assistant Manager, Patel Roadways, Bangalore has
\nstated about the seizure of documents from two North Indians under Mahazar
\nEx.P42 dated 15.12.1994.  He stated that the documents were seized from the pant
\npackets of the two persons and from hand bag.  He could not identify the two
\npersons in the court. His statement was recorded in Ex.P36.\n<\/p>\n
15. PW-11, Johnson, one of the Mahazar witnesses in Ex.P42, dated 15.12.1994 has
\ncorroborated the evidence of Pw10.  However, he could not identify the two
\npersons in the court. Therefore, he was treated as hostile.\n<\/p>\n
16. PW-12, Virapaksham, Branch Manager, Patel Roadways, Madurai has stated about
\nthe seizure of documents under Mahazar Ex.P42 and Ex.P39.  He could not identify
\nthe two North Indians in the court.\n<\/p>\n
17. PW-13, P.Ganesan, Customs Inspector, Tuticorin has stated about the receipt
\nof two informations on 23.11.1994 and 03.12.1994 and conveyed the same over
\nphone to Pw1 and Pw2. He prepared an information reports Ex.P2 and Ex.P59. He
\nwas one of the witnesses for the seizure of Mandrax tablets on 23.11.1994 and
\n03.12.1994 at Odakarai.  He recorded the statement of A3 which was marked as
\nEx.P50.\n<\/p>\n
18. Pw14, V.Ganesan, is one of the witnesses for the seizure of Mandrax tablets
\nunder Mahazar Ex.P1.\n<\/p>\n
19. Pw15, Subbulakshmi, Chemical Examiner has stated about the receipt of
\nsamples on 25.11.1994 and the report is marked as Ex.P.18.\n<\/p>\n
20. PW-16, Thirugnanasundaram, Inspector, Customs Preventive Unit, Tuticorin is
\none of the Witness to the Inventory Mahazar Ex.P15 and Mahazar Ex.P42.  He
\nrecorded the statements of A3 and A4.  They are Ex.P52 and 53.  He has stated
\nabout surveillance of Patel Roadways Office from 12.12.1994 to 15.12.1994.\n<\/p>\n
21. PW-17, D.K.Bansal, Assistant Chemical Examiner, Central Revenue Control
\nLaboratory, New Delhi has stated about his lab report Ex.P25 dated 14.12.1994
\nand Ex.P26 dated 14.12.1994.\n<\/p>\n
22. When the accused were questioned under section 313 Cr.P.C., with reference
\nto the incriminating materials found against them, they denied having committed
\nany of the offence charged and their complicity in the case.\n<\/p>\n
23. On behalf of the accused, DW-1, S.Thangam, Assistant Prison Officer, Madurai
\nand DW-2, Dr.K.sundararajan, Prison Doctor, Madurai were examined and the prison
\nrecords were marked as Ex.D1 to Ex.D6.\n<\/p>\n
24. DW-1, in his evidence stated that on 19.12.1994, both the accused were
\nbrought to Central Prison, Madurai as remand prisoners. Ex.D1 was the prisoners’
\nregister book maintained in the prison. A1 was given the number 1171 and A2 was
\ngiven the number 1172. Both A1 and A2 were brought late night to the prison and
\nat that time both complained of leg pain and noted the same in Ex.D1 which note
\nwas marked as Ex.D2.  It was mentioned in that A1 complained of contusion on his
\nleft leg and pain on his palms because of beating.  The note with regard to
\nNo.1172 mentions that A2 complained of pain on his both palms and he was unable
\nto walk. Dw1 denied that Ex.D2 was subsequently written in Ex.D1 after deleting
\nthe original writing.  He also denied the suggestion that it was written in some
\nother pen. Since the ink was exhausted, new ink was filled up and Ex.D2 was
\nwritten.\n<\/p>\n
25. DW-2, in his evidence stated that during December 1994 he was working as
\nprison doctor in Madurai Central Prison and has given medical treatment to A1
\nand A2 in the Central Prison. Both were in-patients in Central Prison hospital.
\nDw2 has given letters Ex.D3 and Ex.D5 to Superintendent, Central prison, Madurai
\nmentioning the nature of complaint by A1 and A2. O.P. Chits Ex.D4 and Ex.D6 were
\nalso enclosed.  As per the records Ex.D4 to Ex.D6, A1 was complaining body pain,
\nchest pain and giddiness.  He was examined thoroughly and on examination, there
\nwas a contusion mark in his left calf muscles.  He was detained in jail hospital
\nand treated from 22.12.1994 to 02.01.1995. He was produced before the Chief
\nMedical Officer and seen by him. He was advised to take same line of treatment.
\nSimilarly, A2 was complaining of low back pain, body pain and pain over both
\nfeet. He was examined thoroughly and on examination and with his past history he
\nwas diagonised as known case of diabetic and treated with suitable drugs from
\n22.12.1994 to 02.01.1995 as in-patent  in jail hospital.  He was produced before
\nthe Chief Medical Officer and seen by him and was advised to take same line of
\ntreatment.\n<\/p>\n
26. The learned Special Judge after analysing the evidence, both oral and
\ndocumentary available on record and after hearing the counsel appeared on both
\nsides had acquitted the respondents herein of all offences on various grounds.
\nAggrieved of the said acquittal, this appeal is preferred by the Customs
\nDepartment.\n<\/p>\n
27. The learned special public prosecutor, appearing of the Department,
\nvehemently argued that (i) the confession statements of A1 and A2 which were
\nmarked as Ex.P47 ought not to have been rejected as involuntary by the trial
\ncourt and the statement of A2 connected the consignment that came to be seized
\nby the customs offices covered the invoice Ex.P8 which was seized from Patel
\nRoadways and also from the Rice Mill of Pw7, (ii) the trial court failed to
\nconsider the identification of A2 by Pw6 as the person who had consigned the 7
\ncylinders from Surat to Tuticorin, (iii) A3 and A4 had given their confession
\nstatements under Ex.P50 to Ex.P53 and therefore the same ought not to have been
\nrejected as involuntary, (iv) the evidences of Pw6 and Pw7 are genuine and ought
\nnot to have been rejected by the trial court.\n<\/p>\n
28. On the other hand, the learned Senior Counsel Mr.B.Kumar for the accused
\nwould strenuously argue that the prosecution has miserably failed to its case
\nand therefore the trial court has rightly acquitted the accused.\n<\/p>\n
29. In the above circumstances, we have to consider whether the confession
\nstatements Ex.P46 and Ex.P47 are voluntary in nature and are admissible in
\nevidence.\n<\/p>\n
 \t30. According to the learned senior counsel, the foremost material relied
\nupon by the prosecution is the confession statements of the accused. But,  the
\nconfession statements are not voluntary and truthful and therefore they are not
\nadmissible in evidence.  The confession statements of A1 and A2 were recorded on
\n16.12.1994 and 17.12.1994 and 18.12.1994 when they were under the custody of the
\ncustoms officers in customs office, Tuticorin.  According to them, they  were
\nseverely beaten up and involuntary statements were recorded from them.  The
\nfindings of the trial court recorded in that regard are unexceptional.\n<\/p>\n
31.\tThe learned senior counsel for the respondents  has prefaced his
\nsubmissions to show how the statements recorded from A1 and A2 are involuntary
\nand could not be taken into consideration by referring the leading decision of
\nSupreme Court in Sankaria -vs- State of  Rajasthan reported in AIR 1978 SC 1248.
\nThe Supreme Court stated while considering the confession statement, the
\nstatement must satisfy two tests.\n<\/p>\n
(a)\tif the statement is perfectly voluntary.\n<\/p>\n
(b)\tif the first test is satisfied on a true reading,  it could be considered
\nas truthful.  If both tests are satisfied and where the statement is retracted,
\nthe court must find if there is corroboration atleast on general particulars.
\nIt is only if all the above three test are satisfied the statements could be
\nrelied upon against the accused.  This decision of the Supreme Court has been
\nquoted and followed in the decision in State (NCT of Delhi) – vs- Navjot Sandhu
\n(Parliament attack case) reported in 2005 SCC (Cr.) 1715.  Therefore, the
\nstatements of A1 and a2 have to be tested in the light of the above three
\nprinciples.\n<\/p>\n
32.\tIn the instant case, the customs officers are not police officers.  Hence,
\nthe confession statement recorded by them is not hit by the prohibition under
\nsection 25 of Evidence Act.  Nevertheless, the statements have to be tested
\nunder section 24 of Evidence Act. The officers being person in authority within
\nthe meaning of  section 24 of Evidence Act, the burden of establishing that the
\nstatements recorded by customs officers are involuntary is on the accused.
\nHowever, the burden is very light.  An accused is only need to show the
\ncircumstances from “which it appears to the court” to have been caused by
\ninducement, threat or promise.  This aspect is also emphasized by the Supreme
\nCourt in Pyare Lal Bhargava -vs- State of Rajesthan reported in AIR 1963 SC 1094
\nand also in the decision in state (NCT of Delhi) – vs – Navjot Sandhu reported
\nin 2005 SCC (Cr.) 1715.  It is stated that “The expression “appears” connotes
\nthat the court need not go to the extent of holding that the threat, etc., has
\nin fact been proved. If the facts and circumstances emerging from the evidence
\nadduced makes it reasonably probable that the confession could be the result of
\nthreat, inducement or pressure, the court will refrain from acting on such
\nconfession even if it be a confession made to a Magistrate or a person other
\nthan a police officer”.  Another decision is Sevantilal Karsondas Modi -vs-
\nState of Maharashtra reported in AIR 1979 SC 705 on the same point.\n<\/p>\n
33.\tThe evidence in this case has to be viewed in the light of the above
\nposition of law.  The Sessions Court while arriving at its conclusion that the
\nstatements of A1 and A2 are involuntary is well supported by circumstances as
\nwell as the evidences given by the defence witnesses.\n<\/p>\n
34.\tIt is also contended by the learned senior counsel for the
\nrespondents\/accused that while recording a statement of confession in nature
\nunder section 164 Cr.P.C., by a Magistrate, the code itself provides series of
\nsafeguards.  However, there is no safeguard while recording a statement under
\nNDPS Act by the Officers of customs.  Therefore, according to him, the
\nstatements require  to be “closely scrutinised”  whether it was voluntarily
\nobtained or not. In a decision of Supreme Court in Francis Stanley @ Stalin -vs-
\nIntelligence Officer, NCB, Tiruvanathapuram reported in 2007 (2) SCC (Cr.) 618
\nin paragraph 15, it is held that “while it is true that a confession made before
\nan officer of the department of Revenue Intelligence under the NDPS Act may not
\nbe hit by section 25 in view of the aforesaid decisions, yet such a confession
\nmust be subject to closer scrutiny than a confession made to private citizens or
\nofficials who do not have investigating powers, under the Act.”  This decision
\nis followed in Mohtesham Mohd. Ismail -vs- Spl.Director, Enforcement Directorate
\nreported in 2007 (8) SCC 254.  There is also force in this submission made by
\nthe counsel for the respondent\/accused.\n<\/p>\n
35.\tThere is another startling feature in this case. PW-1 in his cross
\nexamination has accepted that two further statements of A1 and A2 were recorded
\non 04.01.1995 and 12.01.1995 in Central Prison, Madurai and in that both the
\naccused totally denied their involvement in the alleged seizure of Mandrax
\ntablets in seven cylinders at Patel Roadways, Tuticorin.  The criticism by the
\nSessions Court that the prosecution has suppressed these two materials and not
\nmarked them in court is also justifiable.\n<\/p>\n
36.\tThe learned Senior Counsel for the respondents in supporting the judgement
\nof the trial court has emphasised the following aspects to show that the
\nstatements recorded from the accused are involuntary and have to be eschewed
\nfrom consideration.  A1 and A2 were cited as accused in four cases in
\nC.C.No.113\/95, C.C.No.417\/95, C.C.No.325\/95 and C.C. No.562\/98 and both of them
\nwere implicated in the cases on the basis of their apprehension on 15.12.1994 at
\nPatel Roadways, Tuticorin and the seizure of documents under Mahazar.  For the
\npurpose of convenience and for better appreciation of evidence, it is to be
\nmentioned here that Gnanasekar, Superintendent of Customs, Tuticorin who was
\ninstrumental in apprehending A1 and A2 at Patel Roadways, Tuticorin has been
\nexamined as PW-1 in C.C.No.113\/95 (C.A. 712\/99), as PW-21 in C.C. No.417\/95
\n(C.A. 844\/99), as PW-2 in C.C. No.325\/95 (C.A. 976\/99) and as PW-4 in
\nC.C.No.562\/98 (C.A.985\/99) and he has spoken about the seizure of documents
\nunder Mahazar which was marked as Ex.P.24 in C.C. No.113\/95 and as Ex.P42 in
\nC.C. No.325\/95.  The statements of A1 and A2 recorded by Gnanasekar on
\n16.12.1994 was marked as Exs.P41 and 42 in C.C. No.113\/95, as Exs.P90 and 89 in
\nC.C. No.417\/95 and as Ex.P37, 38, in C.C. No.562\/98.  The statements of A1 and
\nA2 dated  17.12.1994 and 18.12.1994 were marked as Exs.P.48 and 49 in C.C. No.
\n113\/95, as Exs.P92 and 91 in C.C.No.417\/95, as Exs.P.46 and 47 in C.C. No.325\/95
\nand as Exs.P.41 and 43 in C.C. No.562\/98.  Thirugnanasundaram, Customs
\nInspector, Tuticorin who assisted Gnanasekar was examined as PW-30 in C.C.
\nNo.113\/95 and as PW-16 in C.C. No.325\/95.  Firstly A1 and A2 have been kept
\nunder illegal confinement for over 4 days.  It is the case of the prosecution
\nitself that A1 and A2 were apprehended at Patel Roadways at 11.45 a.m on
\n15.12.1994. They were taken to the Customs Office and kept there in the night.
\nInfact seizure Ex.P24 Mahazar was signed by A1 and A2 on the night of
\n15.12.1994.  Both Pw-1 Superintendent of Customs and another officer of customs
\nPw-30 both admitted in evidence that the accused were in their custody from
\n15.12.1994 till they were produced for the purpose of remand on 19.12.1994.
\nThere was no explanation, nor could there be any for the prolonged confinement
\nof A1 and A2 in the customs office at Tuticorin.  This is more so, when no
\nsummons has been issued either under NDPS Act or under customs Act for their
\nappearance before the customs authorities.  The three statements from each of
\nthe accused were written when they were under such patently illegal custody. The
\ncontention that statements of the accused are therefore stamped with
\ninvoluntariness has force and acceptability.\n<\/p>\n
37. Secondly, there is inherent material to show that the accused were subjected
\nto prolonged interrogation that too in the night time.  In both Exs.P48 and 49
\nwhich are said to have been recorded on 17.12.1994.  The statement begins on
\n17.12.1994 and ends on 18.12.1994. These dates are mentioned in the statements
\nitself.  The prosecution witness Pw-1 and Pw-30 have also accepted the same.  It
\nwas contended before me that the only logical inference is, the accused  were
\ncontinuously interrogated during night time and statements were recorded.  In
\nthis regard, serious reliance was placed in the judgments of the constitution
\nbench of the Supreme Court in Kartar Sing – vs- State of Punjab, reported in
\n1994(2) JT SC 423 in paragraph 419.  The said judgment was followed by
\nA.Packiraj,J., in an unreported judgement of this court in Criminal Appeal
\nNo.139\/95 dated 26.09.2001. Though the judgment of the Supreme Court on the safe
\nguards to be observed while recording confession statements was in the context
\nof interpreting section 15 of TADA, they are also of general observation where
\nstatements of confession in nature are recorded by the officials who are not
\npolice officers.  The Supreme Court has observed in para 149 that “Equally it is
\nsettled law that confession would not be recorded during nighttime or late hours
\nafter the accused has been subjected to interrogation by the police officers for
\n3 or 4 hours and had broken down under the continued interrogation”.   Thus, the
\njudgments cited on behalf of the respondents clearly apply to the facts of this
\ncase. Thirdly, the accused have more than probablised that they were subjected
\nto ill-treatment and were subjected to serious coercion which have no sanction
\nof law.  The evidence of Pw-20 in C.C.No.113\/95 is relevant in this respect.  It
\nis an admitted case that only three persons were taken to the office of customs
\non 15.12.1994.  They were A1, A2 & Pw20.  Pw-20 was kept for four days in one
\nroom of the customs office while A1 and A2 were kept in the next room and he has
\ndeposed that he heard screaming noise.  Since, no other person than A1 and A2
\nwere brought for the purpose of interrogation, the screaming noise could have
\ncome only from A1 and A2. Though Pw-20 was treated as hostile in C.C. No.113\/95,
\nhis evidence was not disputed by the prosecution.\n<\/p>\n
\t38.\tIn this regard, the learned senior counsel also relied on the
\nevidences of Dw1, the Assistant Prison Officer, Central prison, Madurai and Dw2,
\nthe prison doctor who has treated the accused from 22.12.1994 to 02.01.1995 in
\nthe jail hospital as in-patients. Ex.D1 to Ex.D6 were also marked to prove the
\ninjuries and pain found on the accused at the time of their admission in Central
\nprison, Madurai and also their treatment taken there from 22.12.1994 to
\n02.01.1995.\n<\/p>\n
\t39.\tThis aspect is probablise nay even establish by the evidence of Dw1
\nand Dw2 and production of Ex.D1 to Ex.D6.  These materials were produced to show
\nthat they had physical injuries upon them at the time of remand which are not
\nexplainable except on the hypothesis that they were caused when they were under
\nthe custody of the customs officers.\n<\/p>\n
\t40.\tThe analysis of evidence of Dw1 and Dw2 in this regard and notings
\nin the jail records that the accused had contusions on their body and could have
\nbeen caused when they were in the custody of customs offices clearly go to show
\nthat the accused had been coerced to give   confession statements.  Therefore,
\nthe findings recorded by Sessions Court cannot be said to be in any way
\nunacceptable or wrong.\n<\/p>\n
\t41.\tThe learned special public prosecutor has contended that Dw1 and Dw2
\nwere not reliable witnesses and they have given false evidence in order to
\nsupport the accused.  He further contended that the note Ex.D2 in Ex.D1 was
\nwritten in a different ink after the original writing was erased.  He further
\ncontended that Dw2 has given treatment to the accused from 22.12.1994 onwards
\nonly and therefore the injuries might have been caused by some other source and
\nnot because of the beating of the officers as alleged by the accused.  However,
\nit is very pertinent to mention here, that Pw1 in his evidence admitted that
\nafter the accused were remanded on 19.12.1994, custody was sought for by filing
\npetition and three days custody was ordered by the Court.  He has not mentioned
\nthe date of the petition and the date of the order. But the fact is that the
\naccused were remanded on 19.1.21994 and the first fifteen days expired on
\n02.01.1995.  After that, the customs officers could not seek custody of the
\naccused.  As per the jail records Ex.D4 and Ex.D6, the accused were in jail
\nhospital as in patients from 22.12.1994 to 02.01.1995.  Therefore, it is quite
\nevident that the accused ought to have been taken custody on 20th December 1994
\nand reproduced before court on 22.12.1994 after the three days custody period
\nwas complete.  It is the duty of the prosecution to prove that the accused were
\ninside the prison on 20.12.1994 and 21.12.1994 also by letting evidence.\n<\/p>\n
\t42.\tIn this regard, the argument of the learned  Special Public
\nProsecutor requires to be considered.  According to him, the deposition of Dw1,
\nAssistant Prison Officer, Central Prison, Madurai and Dw2, the doctor attached
\nto the jail are not acceptable and the jail records are not reliable due to
\noverwriting.    It is submitted that the entry Ex.D2 in Ex.D1 appears to be over
\nwriting and in different ink and therefore, it has been brought much later.
\nSecondly it was contended that even though jail authority has noted physical
\ninjuries like contusions found on the accused at the time they were admitted to
\nprison after remand, the jail doctor examined them only 3 days later, that is,
\non 22.12.1994, hence defence witness are not to be accepted.\n<\/p>\n
43.\tBut, on a careful consideration of the documents and the evidence of Dw1
\nand Dw2, this Court finds that the contention of the learned special public
\nprosecutor cannot be accepted.  Both Dw1 and Dw2 are Government Servants.  The
\nentries made were in the course of official duties and in a regularly kept
\nregister.  That the entry Ex.D2 is in different ink and therefore it must be a
\nlater addition, made much later is also not acceptable since the entries are
\nmade at different times. Entries are made as and when the prisoners are admitted
\nin jail and the entry will be made whoever was in prison during the job at that
\nparticular time.  Hence, difference in the colour of the ink could not be a
\nfactor to discredit Ex.D2 in Ex.D1. The counsel for the accused has explained
\nthat after remand they were taken into customs custody on the following morning
\nfor 3 days and that is why after they came back to prison at the end of police
\ncustody, the doctor examined them on 22.12.1994.  Moreover, if the writings are
\ndisputed, it is the prosecution which could have sent it for scientific analysis
\nby an expert.  But the same was not done.  The injuries noted are all shown to
\nhave been caused when the accused were in the custody of customs authorities for
\na period of 4 days. This circumstance taken together with other circumstances
\npointed out, have been relied upon by the Sessions Court to come to the
\nconclusion that the statements of confessional nature recorded for A1 and A2 in
\nEx.P41, 42, 48 and 49 as  involuntary and therefore require  to be eschewed
\nentirely is proper and correct conclusion.\n<\/p>\n
44.\tThe learned senior counsel for the respondents also contended that Pw-1
\nadmitted in his cross examination that photographs of A1 and A2 were taken while
\nthey were in their custody.  However, the photographs were not produced before
\nthe court. It is the contention of the learned senior counsel for the
\nrespondents that A1 and A2 were severely beaten up particularly at the foot,
\nthat they were unable to stand and they were made to lean against the wall and
\nphotos were taken.  Because of this reason, the officers have not produced the
\nphotos to the court and therefore adverse inference should be drawn against the
\nprosecution. After going through the evidence of Pw1 and Dw1 and Dw2 and
\nconsidering the other circumstances mentioned above, the contention of the
\ndefence counsel appears to be acceptable.\n<\/p>\n
\t45.\tThe contention of the prosecution is that A3 and A4 had given
\nstatements in which they admitted their act of loading and unloading of bags
\ncontaining Mandrax tablets in their vallam to the ship as directed by one
\nDharmalingam and subsequent concealment of 50 bags in the thorny bushes at the
\nseashore of Odakarai.  It is also contended that A3 and A4 also identified the
\nseized goods in the customs office on 02.02.1995. The voluntary nature of their
\nstatements are highly doubtful because both A3 and A4 were in the custody of the
\nofficers on 01.02.1995 and 02.02.1995 and the statements were obtained when they
\nwere under illegal custody.  Except the names of A3 and A4 in Ex.P50 and 53, it
\nis admitted by Pw2 and Pw17 that all other words and sentences were one and the
\nsame.  Further, A3 and A4 had not signed in the alleged confession statements.
\nIt is admitted by Pw2 in his evidence at page 54 of his cross examination thus
\n“In the statement of A3 and A4 there is no signature of A3 and A4”.  So Ex.P50
\nto 53 which are projected as statements of confessional in nature, are not
\nstatements of A3 and A4 at all. They are wholly inadmissible. It is the case of
\nthe prosecution that A3 and A4 have shown the seized goods on 02.02.1995 and
\nthey identified them.  The seized goods ought to have been sealed on the date of
\nseizure on 23.11.1994 and 03.12.1994 itself and kept in the godown.  Unless the
\nseal was broken and the bags were opened, the tablets could not have been seen
\nby A3 and A4 and identified by them.  If the prosecution contends that the bags
\nalone were identified still it is very much necessary to examine the godown
\nkeeper to support the version of Pw2. But, no such evidence was given.
\nTherefore, looking from any point of view, the alleged confession statements of
\nA3 and A4 cannot form the basis to convict them.  Moreover, A3 had died after
\nacquittal by the Court below.\n<\/p>\n
46.\tThe next contention of the public prosecutor is that the evidence of Pw7
\nand his landing over of the invoice Ex.P8 in which the name G.T. Rana was found
\nwould prove the connection of A2 with the seizure at Odakarai. First of all, the
\nevidence of Pw7 is not believable.  He has kept  Ex.P8 in his possession from
\n01.11.1994 till the officers conducted search in his Rice Mill on 13.12.1994,
\neven though on 03.11.1994 itself he sensed that his relative Amalraj of
\nMoolakarai has committed some illegal act in his Rice Mill. But, he has not
\nchosen to make a complaint to the police or tried to verify and inform to the
\nconsignee Meenakshi Enterprises as mentioned in Ex.P8.   Therefore, his conduct
\nwas unnatural and his evidence cannot be considered as genuine and on that basis
\nwe cannot come to the conclusion that the seizure of Ex.P8 was effected in the
\nRice Mill of Pw7 and thereby the connection of A2 with the seizure at Odakarai
\nstands proved.  The trial court has rightly rejected the evidence of Pw7.
\nMoreover, prosecution has not sent the signature found in Ex.P8 for any
\nhandwriting expert to establish that it is only A1 or A2 has signed under the
\nassumed name G.T.Rana.\n<\/p>\n
47.\tThe reasons given by the trial court to reject  the evidence of Pw6 is
\nalso acceptable because the trip sheet and lorry rent receipt which were the
\ncore documents to prove the version of Pw6 that he only drove the lorry from
\nSurat to Tuticorin were not seized by the officers. The identification of A2 by
\nPw6 is also not admissible for the simple reason that the photograph of A2 was
\nalready shown to him in customs office on 16.12.1994 and no identification
\nparade was conducted.  Therefore, showing photograph and identifying on it by
\nthe witness is not admissible in evidence.  The decision of the Hon’ble Supreme
\nCourt in D.Gopalakrishnan -vs- Sudanand Naik reported in AIR 2004 SC 4965, was
\nrelied upon by the learned senior counsel in support of his contention.\n<\/p>\n
48.\tPw4 and Pw5 in their statements Ex.P19 and Ex.P20 recorded on 01.12.1994
\nadmitted that they were assisting one Dharmalingam in his smuggling activities
\nof gold and loading and unloading of Mandrax tablets from Kayalpattinam Seashore
\non earlier occasions.  The address of Dharmalingam was specifically mentioned in
\ntheir statements. But there is nothing to show that the customs officers had
\ntaken any steps to apprehend Dharmalingam and Amalraj of Moolakarai or to take
\ncoercive steps under law to attach their properties.  It is also admitted by Pw2
\nin his evidence that the information received in C.C.No.113\/95 mentions the
\nnames of Dharmalingam and Amalraj as the persons going to come and take delivery
\nof 7 cylinders from Patel Roadways, Tuticorin.  Still it is curious to note that
\nthe officers did not chose to implicate Dharmalingam and Amalraj of Moolakarai
\nas accused both in this case as well as in C.C. No.113\/95.  There is no
\nexplanation given by Pw2 in his evidence as to why they have not impleaded
\nDharmalingam and Amalraj of Moolakarai as accused. That casts a doubt on the
\ngenuineness of the prosecution case.\n<\/p>\n
49.\tThe learned special judge at the time of framing charges has framed a
\ncharge that A1 and A2 conspired in manufacturing the psychotropic substance
\nMandrax tablets and are liable to be punished under section 29 of NDPS Act. But
\nthere is no evidence adduced by the prosecution to prove the charge of
\nconspiracy to manufacture Mandrax tablets or the manufacture of Mandrax tablets.
\nSince, it is held that the prosecution has not proved the case, the trial court
\nhas rightly acquitted all the accused from all the charges.\n<\/p>\n
50.\tThis being an appeal against acquittal, unless the findings of the trial
\ncourt are perverse, highly unreasonable, based on no evidence or record or made
\nin ignorance of relevant evidence on record, this court is not inclined to
\ninterfere with the findings of the trial court and will not set aside the order
\nof acquittal.\n<\/p>\n
51. For the reasons stated above, I do not find any ground to interfere with the
\nwell considered findings of the Sessions Court. Therefore, the judgment of the
\ntrial court in acquitting the accused of all the charges is sustained. In the
\nresult, this Criminal Appeal is dismissed confirming the judgement dated
\n28.5.1999 on the file of the Special District and Sessions Judge, Madurai, in
\nS.C.No.325 of 1995. The material objects concerned in this case  shall be
\nconfiscated by the Government after the Appeal period is over or Appeal if any
\nis over.\n<\/p>\n
gkv<\/p>\n
Copy to:\n<\/p>\n
1. The Spl.District and Sessions Judge
\n   (NDPS Act Cases) Madurai.\n<\/p>\n
2. The Public Prosecutor,
\n   Madurai Bench of Madras High Court,
\n   Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Superintendent Of Central … vs Prem Pratap Singh Sisodia on 25 January, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25\/01\/2008 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR Crl.A.(MD).No.976 of 1999 The Superintendent of Central Excise Customs Preventive Unit, Tuticorin. … Appellant Vs 1. Prem Pratap Singh Sisodia alias Prem […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-16801","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Superintendent Of Central ... vs Prem Pratap Singh Sisodia on 25 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-superintendent-of-central-vs-prem-pratap-singh-sisodia-on-25-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Superintendent Of Central ... vs Prem Pratap Singh Sisodia on 25 January, 2008 - 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