Nirmal Singh Pehlwan @ Nimma vs Inspector, Customs, Customs House, Punjab

NIRMAL SINGH PEHLWAN @ NIMMA .. APPELLANT(S)

vs.

INSPECTOR, CUSTOMS, CUSTOMS HOUSE, PUNJAB .. RESPONDENT(S)

O R D E R

This appeal is directed against the

concurrent judgments of the courts below whereby the

appellant has been sentenced to undergo 10 years R.I. and

to pay a fine of rupees one lakh and in default to undergo

RI for two years for having violated the provisions of

Section 22 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as the

'Act').

The facts of the case are as under:

During the course of a joint Naka held on the

4th January, 1999 by a party comprising officials from the

Customs Preventive Staff, the Punjab Police and the CIA

Staff, Majitha, set up at the T-crossing near Saki Bridge,

Ajnala, a Maruti car bearing registration No. PB-02-P-5595

was seen coming from the opposite side at about 9.40 a.m.

There were three occupants in the car and two of them

taking advantage of the thick fog at that time ran away

whereas the third one, the appellant Nirmal Singh, was

apprehended by PW.4 Prem Singh-Superintendent Customs.

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PW.4 disclosed his identity to the appellant and told him

that as he was suspected to be in possession of some

narcotic, he should give his option as to whether he wished

to be searched before a Magistrate or a Gazetted Officer.

The appellant stated that he would be satisfied if he was

searched in the presence of a Gazetted officer. Khazan

Singh and Sarup Singh were also called as public witnesses.

On a search of the appellant's person two packets of brown

powder each weighing 1 kilogram were found lying in his

lap. The powder was tested with the aid of a drug testing

kit and was found to be heroin. Samples of 5 grams were

drawn from each packet and after the samples had been

homogenized, they were sent to the laboratory for

analysis. The Chemical Examiner in his report opined that

the seized articles were indeed heroin.

During the course of the investigation the

appellant also made a confession under Section 108 of the

Customs Act admitting his guilt. The matter was

ultimately sent up for trial after the completion of the

investigation. Sarup Singh and Khazan Singh, the

independent witnesses, were given up as having been won

over by the appellant. The prosecution accordingly placed

primary reliance on the statement of PW.1 Jagtar Singh,

Inspector of Customs and PW.4 Prem Singh and the confession

of the appellant made to him as also the circumstantial

evidence in the case. The accused was also examined under

Section 313 of the Cr. P.C. and he stated that he had been

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roped in on account of his animosity with Swaran Singh-DSP

and his brother Kartar Singh-SP as he had been involved in

the murder case of their brother, Ranjit Singh. He also

produced several witnesses in defence.

The Trial Court, on a consideration of the

evidence, held that the case against the appellant had been

proved beyond doubt more particularly as he had made a

confession to PW.4 which was admissible in evidence as

PW.4 was not a police officer. It was also found that the

provisions of Section 50 of the Act had been complied with

as Ex. P.A., a consent memo, had been drawn up prior to the

search. The Trial Court accordingly convicted and

sentenced the appellant, as already mentioned above. The

conviction and sentence has been confirmed by the High

Court.

Before us, Mr. Sanjay Jain, the learned

counsel for the appellant, has raised primarily two

arguments based on the judgments of this Court. The first

is Vijaisingh Chandu Bha Jadeja vs. State of Gujarat (2011

(1) SCC 609). In this case it has been observed by the

Constitution Bench that the provisions of Section 50 of the

Act postulated that before a search was made of a person

suspected of carrying a narcotic he should be informed of

his right that he had an option of being searched in the

presence of

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a Gazetted Officer or a Magistrate and that merely because

a consent memo had been drawn up whereby he had chosen to

be searched before the Magistrate or a Gazetted Officer (on

the option given to him by an authorized officer) would

not amount to full compliance with the aforesaid provision.

The second argument is based on the judgment of this Court

in Noor Aga vs. State of Punjab & Anr. (2008 (16) SCC 417)

in which this Court had deviated from the earlier position

in law that a Customs Officer was not a police officer and

a confession made to him under Section 108 of the Customs

Act, was admissible in evidence. In this case it has been

held that as a Custom Officer exercised police powers

and a confession made by an accused could result in a

conviction and sentence, such a confession was hit by the

embargo placed by Section 25 of the Evidence Act, 1872,

and was, therefore, not admissible in evidence.

On the other hand, Mr. R.P. Bhatt, the leaned

senior counsel for the respondent - Department, has pointed

out that Ext. P.A. the consent memo in fact conveyed

information to the appellant that he had a right to be

searched in the presence of a Magistrate or a Gazetted

Officer and that this amounted to full compliance with

Section 50 of the Act. He has also pointed out that

although Noor Aga's case did say that a confession made to

a Custom Officer was hit by Section 25 of the Evidence Act

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and was therefore not admissible in the evidence, yet a

judgment of a coordinate Bench of this Court in Kanahiya

Lal vs. Union of India case (2008 (4) SCC 668) had

reiterated the earlier position in the law as given in Raj

Kumar vs. Union of India - 1990(2) SCC 409 that Officers of

the Revenue Intelligence and ipso facto of the Customs

Department could not be said to be police officers and a

confession before them would not be hit by Section 25 of

the Evidence Act.

We have examined the facts of the case in the

light of the arguments raised by the learned counsel for

the parties and the case law cited. Ext. P.A. is the

consent memo under which the appellant had opted to be

searched in the presence of a Gazetted officer. This memo

is in the Gurmukhi script and has been read to us and we

see that it cannot by any stretch of imagination be said

to be informing the appellant of his right to be searched

in the presence of a Gazetted Officer or a Magistrate as he

was only given the option to be searched before one of the

other. In Vijaisingh's case (supra) the Constitution Bench

crystalised the issue before it in para 1 as under:

"The short question arising for consideration

in this batch of appeals is whether Section 50 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

(for short "the NDPS Act") casts a duty on the

empowered officer to "inform" the suspect of his

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right to be searched in the presence of a gazetted

officer or a Magistrate, if he so desires or whether

a mere enquiry by the said officer as to whether the

suspect would like to be searched in the presence of

a Magistrate or a gazetted officer can be said to be

due compliance with the mandate of the said section?"

This was answered in paragraph 29 in the following

terms:

"In view of the foregoing discussion, we are

of the firm opinion that the object with which the

right under Section 50(1) of the NDPS Act, by way of

a safeguard, has been conferred on the suspect viz.

to check the misuse of power, to avoid harm to

innocent persons and to minimise the allegations of

planting or foisting of false cases by the law

enforcement agencies, it would be imperative on the

part of the empowered officer to apprise the person

intended to be searched of his right to be searched

before a gazetted officer of a Magistrate. We have

no hesitation in holding that insofar as the

obligation of the authorised officer under sub-

section (1) of Section 50 of the NDPS Act is

concerned, it is mandatory and requires strict

compliance. Failure to comply with the provision

would render the recovery of the illicit article

suspect and vitiate the conviction if the same is

recorded only on the basis of the recovery of the

illicit article from the person of the accused

during such search. Thereafter, the suspect may or

may not choose to exercise the right provided to him

under the said provision."

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It is therefore apparent that the precise

question that was before the Constitution Bench was as to

whether a consent memo could be said to be information

conveyed to an accused as to his right under Section 50 of

the Act. The Constitution Bench clearly stated that a

consent memo could not be said to be such information as

the provisions of Section 50 of the Act were mandatory and

strict compliance was called for and any deviation

therefrom would vitiate the prosecution. It was further

held that it was not necessary that this information should

be in a written form but the information had to be conveyed

in some form or manner which would depend on the facts of

the case. We have accordingly gone through the evidence of

PW.4 Prem Singh. He did not utter a single word as to

whether he had informed the appellant of his right and he

merely took his option as to whether he would like to be

searched before a Gazetted Officer or a Magistrate as

noted in Ex.P.A. In the light of the judgment in

Vijaisingh's case (supra) we find that there has been

complete non-compliance with the provisions of Section 50

of the Act.

We also see that the Division Bench in

Kanahiya Lal's case had not examined the principles and the

concepts underlying Section 25 of the Evidence Act vis.-a-

vis.

-8- Section 108 of the Customs Act the powers of Custom Officer

who could investigate and bring for trial an accused in a

narcotic matter. The said case relied exclusively on the

judgment in Raj Kumar's case (Supra). The latest judgment

in point of time is Noor Aga's case which has dealt very

elaborately with this matter. We thus feel it would be

proper for us to follow the ratio of the judgment in Noor

Aga's case particularly as the provisions of Section 50 of

the Act which are mandatory have also not been complied

with.

In view of what has been held above we find

that the conviction of the appellant must be set aside.

Accordingly we allow this appeal and order his acquittal.

.................J. (HARJIT SINGH BEDI)

....................J. (GYAN SUDHA MISRA)

New Delhi, July 21, 2011.