A.P. Subba, J.
1. Since all these appeals filed by four appellants under Section 36B of NDPS Act, 1985 read with Section 374 Clause (2) of Criminal Procedure Code 1973, are directed against the common judgment and order dated 2.6.2006 passed by the learned Court of Special Judge NDPS, Shillong in Criminal (NDPS) Case No. 26/2003 and involve common questions of law and fact they were heard together and are being disposed of by this common judgment.
2. The prosecution case, in brief, is that Shri D. Pakyntein, (PW11) an Inspector in the Office of the Commissioner of Custom NER, Shillong, received an information from Special Operation Team (SOT for short) of Meghalaya Police through Shri N.K. Bhandari, Inspector of Customs (PW4), on 19.8.2003 at about 19.50 hours to the effect that one Shri Yasihey Yobin of Dum Dum, Nogthymmai (accused No. 1), the appellant in Criminal Appeal No. 3(SH) 2006 was keeping some heroin in his residence and if a search is conducted immediately the contraband may be recovered. On receipt of this information, Shri Pakyntein contacted Shri R.M. Chyne, Superintendent (PW 7), Shri B. Kar, Inspector (PW 2) and Shri N. K. Bhandari, Inspector of Customs (PW 4) and they all proceeded towards the residence of the said Yasihey Yobin at Dum Dum Nongthymmai, to conduct a search. On reaching there, they met the members of the SOT of Meghalaya Police along with Shri Yobin. After the particulars of Shri Yobin were ascertained a search warrant (Ext. 20) was obtained and then the search of the residence of Shri Yasihey Yobin was then conducted in presence of two independent witnesses Shri R.V. Dkhar (PW 3) and D. Khyriem (PW 8). In the course of the search Shri Yasihey Yobin himself took out one suitcase in which he said he had kept the packet of heroin. However, on opening the suitcase no packet of heroin was found inside. On interrogation on the spot, Shri Yasihey Yobin came out with/' the plea that the only person who knew about the packet of heroin kept by him inside the suitcase was Shri Lisihey Ngwazah (accused No. 2), his brother-in-law, and he might be the person who removed the packet. Then on the bidding of the Custom officials the said Mr. Yasihey Yobin instructed his wife to contact the said Shri Lisihey Ngwazah, asking him to come back immediately with the goods. On being so contacted, the said Lisihey Ngwazah, turned up after a while with a black bag on his shoulder. On being asked, he opened the bag and took out the contents of the bag which included one suitcase cover of camouflage denim made of synthetic fabric and one green polythene bag. On opening the green polythene bag, one plastic packet containing white powder wrapped with two pieces of English Newspaper was recovered. When a small quantity of the said white powder was tested by the Custom Officials with the help of the field test kit in presence of all the persons present there including the two independent witnesses, the said powder tested positive for heroin. The white powder in the plastic packet on being weighed was found to be 380 gms, i.e. commercial quan1ity.
3. The Custom Officials then seized the plastic packet containing the heroin, the Newspaper, the suitcase cover, the green polythene bag along with the black shoulder bag. After completing the formalities of search and seizure Shri Yasihey Yobin and Shri Ngwazah were both taken to the Custom Office at M.G Road, Shillong, along with the seized articles and were examined under the provisions of Section 67 of the NDPS Act, 1988.
4. In his statement, Shri Yasihey Yobin stated that he had bought the contraband along with his friend Shri Arun Kanungo (accused No. 3) from Gauhati from one Shri A.M. Patrick. After the contraband was brought to Shillong, Shri Arun Kanungo, had contacted one of his friends Shri Raju Premji, accused No. 4, who in turn had contacted one Bhaiji for the purpose of finding customer to buy the product. Shri Ngwazah, accused No. 2, in his statement recorded on the same day stated that on 19.8.2003, when he was sitting in his house in the evening, he came to know that some police personnel and some Custom officials were coming to the house to conduct a search. At that time he recollected that Shri Yasihey Yobin had told him that some precious things had been kept inside the suitcase. Then apprehending that the police personnel and the Custom officials might be coming for conducting a raid for the same precious thing, he immediately opened the suitcase, took out the said packet, put it inside the black colour shoulder bag and left the house to save his brother-in-law Shri Yasihey Yobin.
5. However, he had to return back to the house of Shri Yasihey Yobin along with the shoulder bag in which he had taken the precious thing on receiving the call from his sister. Shri Arun Kanungo (accused No. 3) and Shri Raju Premji, (accused No. 4), who were in police custody at Rynjah Police Station were also brought to Customs office at M.G Road on 20.8.2003 in connection with the on-going enquiry. In their statements recorded thereafter, they confirmed their participation in procuring the contraband and in the effort to find customers to sell off the product.
6. On the strength of the above information that came to light during the preliminary enquiry, Shri Yasihey Yobin (accused No. 1), Shri Lisihey Ngwazah (accused No. 2), Shri Arun Kanungo (accused No. 3) and Shri Raju Premji (accused No. 4) were put under arrest on 20.8.2003 between 1630 to 1645 hours. After the arrest the four accused persons were taken to Civil Hospital, Shillong on 21,8.2003 before obtaining remand for Judicial Custody. On 22.8.2003, the seized sample packet was sent to Forensic Science Laboratory, Guwahati, for laboratory test. The Forensic Science Laboratory Report (exhibit No. 1) received from the Forensic Science Laboratory, Guwahati, confirmed that the sample tested positive for heroin and the percentage of the heroin was found to be 83.33.
7. Since the above evidence collected during the enquiry was found sufficient to make out a prima facie case of commission of offence under Sections 21,28 and 29 of NDPS Act against the accused persons, a written complaint was filed before the court of Special Judge (NDPS) East Khasi Hills, Shillong on 21.11.2003 and all the four accused persons were put on trial.
8. In the course of the trial before the Special Judge, as many as 11 witnesses were examined and 3 8 documents including 8 material exhibits were brought on record. On completion of the trial, the learned Special Court, NDPS found Yasihey Yobin (accused No. 1) and Lisihey Ngwazah (accused No. 2) to be in conscious possession of contraband drugs and convicted them for the offences under Section 8(c) and 21 (c) of the NDPS Act and sentenced them to rigorous imprisonment for 13 years along with a fine of Rs. 1 lac in default of payment of the fine to undergo another one year rigorous imprisonment. Shri Arun Kanungo (accused No. 3) and Shri Raju Premji (accused No. 4), were both found to have taken part in procuring and trying to dispose of the contraband drugs and were accordingly convicted of the offences of abetment and criminal conspiracy under Section 29 NDPS Act, and sentenced to rigorous imprisonment for 10 years each with a fine of Rs. 1 lac in default to undergo another one year rigorous imprisonment. It is against this conviction and sentence that the four accused persons came up before this Court in separate appeals— the joint appeal filed by the accused Shri Yasihey Yobin and Shri Lisihey Ngwazah, being registered as Criminal Appeal No. 5 (SH) 2006 and the appeals filed by Shri Raju Premji and Shri Arun Kanungo separately being registered as Criminal Appeal No. 4 (SH) 2006 and Criminal Appeal No. 3(SH) 2006 respectively.
9. We have heard Mr. J.M. Choudhury assisted by Mr. M.F. Qureshi, learned Counsel appearing for the appellants Shri Yasihey Yobin and Shri Lisihey Ngwazah, Mr. R. Kar, learned Counsel appearing for the appellant Shri Arun Kanungo and Mr. B. Bhattacharjee, learned Counsel appearing for the appellant Mr. Raju Premji as well as Mrs. T. Yangi, learned C.G.C. appearing on behalf of therespondents.
10. Since the grounds taken by the learned Counsel in the different appeals mentioned above are more or less common, we find it convenient to take up these grounds together, duly making reference to specific grounds taken in individual cases as and when relevant.
One of the common grounds taken by, the learned Counsel for the appellants was that the learned Special Judge erred in following the procedure prescribed under Section 225 to 237 included in Chapter-XVIII of the Code of Criminal Procedure for trial before the Court of Sessions instead of the procedure provided under 238 to 250 prescribed for trial of warrant cases by Magistrate. Relying on the observation made by the Apex Court in R.S. Nayak v. A.R. Antulay : 1984CriLJ613 , the learned Counsel contended that a Special Judge is required to follow the procedure prescribed for trial of warrant cases by Magistrates. There is no doubt that the learned Counsel is fully supported by the decision relied on. It must, however, be noted that the case cited is in relation to a procedure to be followed by a Special Court constituted under the provisions of PC Act 1988 and not in relation to a Special Court constituted under NDPS Act 1985. While Section 5 of the PC Act specifically provides that a Special Judge, while trying the accused person shall follow the procedure prescribed by CrPC 1973 for trial of warrant cases by Magistrate, no such corresponding provision has been incorporated in the NDPS Act. The only provision contained in Section 36-C of the NDPS Act, provides as follows:
36-C. Application of Code to proceedings before a Special Court--Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
11. A plain reading of the above provision makes it clear that the provisions of the Code of Criminal Procedure, 1973, apply to the proceedings before a Special Court and for the purposes of the said provisions the Special Court has to be deemed to be a Court of Sessions. The above provision, therefore, leaves no scope for any doubt that a Special Court constituted under NDPS Act for the purpose of trying offences under the Act would be a Court of Sessions. In this regard it is important to bear in mind that status of a Sessions Court has been conferred upon the Special Court by a deeming fiction for empowering such special court to follow the provisions of the Code at the time of trial of the case. If such is the object behind conferring the status of session court upon the special court there is no reason as to why a procedure prescribed for trial of warrant cases by Magistrate should be applicable to the Special Court
12. In Amratlal Devdanbhai Soni v. Director of Revenue Intelligence 1998 Crl. L.J. 705, the Gujarat High Court has expressed the view that in a case of NDPS Act there being no committal proceedings, once the cognizance is taken on filing the complaint, the only stage is of Sections 225 and 226 and the trial begins from that stage. Stage of discharge or framing of charge under Sections 227 and 228 comes next. Keeping in view the specific provision already noted above and also the fact that NDPS Act is a special Act, we find ourselves in respectful agreement with the above view of Gujarat High Court. It thus follows that the same procedure which would be applicable to the Court of Session would be applicable to the Special Court constituted under the NDPS Act. No prejudice can, therefore, be said to have been caused to the appellants in the proceedings before the learned Special Judge on account of the fact that the procedure prescribed for trial before a Court of Sessions was followed. We therefore find no procedural illegality in the trial before the learned Special Judge and any merit in the submission.
13. The next common contention raised by the learned Counsel relates to admissibility of the statement of the accused persons recorded by the Custom authorities after they were brought to the Customs office. The submission made by the learned Counsel for the appellants is to the effect that the statements of all the appellants recorded by the Custom officials were hit by Article 20(3) of the Constitution in so far as the appellants at the time of recording their statements were persons accused of an offence' within the meaning of Article 20(3) of the Constitution. Relying on the provision contained in this article the specific contention raised by the learned Counsel is that since no person accused of any offence may be compelled to be witness against himself the statements made by the appellants cannot be used as evidence against any of them. While it is true that no one can be compelled to be a witness against himself under Article 20(3) above of the Constitution, we doubt whether the principle is attracted in the present case. Admittedly, no FIR or any written complaint was lodged by the Custom officials when the statements of the accused persons were recorded. The accused persons were arrested mainly on suspicion of having committed offence punishable under Section 8(c), 21 and 29 of the NDPS Act. As per the law laid down by the Apex Court in Veera Ibrahim v. State of Maharashtra reported in : 1976CriLJ860 certain conditions must be fulfilled before any person can claim benefit of guarantee under Article 20 (3) of the Constitution. On an analysis of Clause 3 of Article 20 of the Constitution, the Apex Court in paragraph 6 of the Judgment laid down as follows:
6. From an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was 'accused of any offence'; secondly, that he made this statement under compulsion. The phrase 'accused of any offence' has been the subject of several decisions of this Court so that by now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which is the normal course may result in his prosecution, would fall within its ambit.
14. Similarly, in the case of (1) Balkishan A. Devidayal v. State of Maharashtra and (2) State of Madhya Pradesh and Anr. v. Hari and Ors. reported in : 1980CriLJ1424 , the Apex Court after a survey of case laws pointed out the circumstances necessary to clothe a person with the character of 'a person accused of an offence'. The Hon'ble Court in paragraph 70 laid down the law as follows:
70. To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person 'accused of an offence' within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an F.I.R. or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in Court.
15. The above makes it amply clear that it is only the filing of an FIR or a formal complaint that makes a person 'accused of an offence' under Article 20(3) of the Constitution. In the present case, there is no evidence on the records that any FIR was filed when the accused persons were examined. The formal complaint was filed by the Inspector posted at Anti-Smuggling Unit at Shillong, Custom Department only on 21.11.2003. This goes to show that there was neither an FIR nor a complaint filed against the accused persons on the date the accused persons were examined. These facts, therefore, make it amply clear that the protection envisaged under Article 20(3) of the Constitution cannot be extended to the statements made by the accused persons in the present case.
16. However, before we part with the issue, we might as well take into consideration the submission made by Mr. B. Bhattacharjee, the learned Counsel for the accused-Raju Premji. In this regard, it is to be noted that the statements of the said accused consist of three parts namely exhibits 17, 18 and 19. This accused was arrested on 20.8.2003 at 4.30 P.M. While the statement marked exhibit 17 and 18 were recorded before the arrest, the statement marked exhibit 19 was recorded after the arrest was made on 21.8.2003. The argument advanced by the learned defence counsel in the light of these facts is, that even if the statements exhibit 17 and 18 fell outside the purview of Article 20(3) of the Constitution, the statement exhibit 19 which was admittedly recorded after the arrest was made, was hit by Article 20(3) in so far as a person stands in the character of 'person accused of an offence', as soon as such person is arrested by an officer of the force on suspicion or on charge of committing an offence under the penal law. This submission, to say the least, is contrary to the legal position already noted above namely that a person stands in the character of an accused only when an FIR is lodged or when a complaint is filed. The following observation made by the Apex Court in Veera Ibrahim's case (supra) elucidates the point beyond doubt:
Where a Customs Officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do under Article 22 (1) of the Constitution) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate.
17. The above being the position in law, it is evident that the contention of the learned Counsel that the statement of the appellant marked exhibit ] 9 having been recorded after his arrest by the Custom authorities is hit by Article 20(3) and is not admissible in evidence cannot be countenanced. It, therefore, follows that the whole of the statement made by the appellant Shri Raju Premji under Section 67 of the NDPS Act do not fall within the purview of Article 20 (3) of the Constitution and is thus admissible in evidence.
18. One further submission made by Mr. B. Bhattacharjee in this regard is that all the above statements namely exhibits 17,18 and 19 were retracted by the accused in his subsequent statement exhibit 38 recorded on 4.11.2003 and in view of this no value can be attached to it. It is true that the statements have been retracted but at the same time we cannot lose sight of the fact that it is not the law that a retracted confession or statement has to be rejected as involuntary or unlawfully made merely because it has been retracted at the trial. All that is required is that such statement has to be examined carefully in the light of the surrounding circumstances.
It is well settled law that conviction can be founded even on retracted confession if it receives general corroboration, (1994) 3 SCC 5,69.
19. For the reasons indicated above, the contention raised by the learned Counsel for the appellants in this regard must be rejected as misconceived. This disposes of the question of bar of Article 20 (3) of the Constitution.
20. The next ground relates to evidentiary value of the statement (s) in question. The specific plea taken by Mr. Kar, the learned Counsel in this regard, is that the statement was not voluntary in nature having been given under duress and as per the law laid down by the Apex Court in Nandini Satpathy v. P. L. Dani, reported in (1978) 2 SCC 452 and State (NCT of Delhi) v. Navjot Sandu reported in : 2005CriLJ3950 the court should refrain from acting on such confession. Even though we entertain no doubt about the law laid down above with regard to the acceptance of a confession obtained under duress, we find ourselves unable to agree with the learned Counsel that the statements in the present case fall in such category firstly because the statement in question is not a confession and secondly because the statement was recorded by the Custom authorities when the accused was no longer in the police custody. It would not be out of place to observe that even if the statement was recorded while the accused was in police custody, the statement not being a confession the embargo laid down in the above cases could not apply to the case In this regard, it is also relevant to bear in mind that in catena of decisions it has been held that a Custom Officer is not a police officer. It has been laid down by the Division Bench of this Court in Union of lndia v. Lalthangliant @ Thangtei reported in (2003) 3 GLR 176 that the statement made before the Customs and Excise Officer is not hit by Section 25 of the Evidence Act. If it is so, it is plain that the restriction which would apply to the statement recorded by the police officer would not apply to the statements recorded by the Custom Officer as recorded in the present case, and as such the same is admissible in evidence. It thus follows that all the statements of the appellants, the summary of which has already been brought on record above, are admissible in evidence.
22. The learned Counsel in the next place submitted that even if the statements in question are admissible in evidence, no conviction can be based on such evidence alone meaning thereby that such evidence would be required to be corroborated by some other testimonies. In support of his submission the learned Counsel for the appellant relied on a decision of the Apex Court in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau Thiruvananthapuram reported in 2007 (1) Supreme 804. In this case, it has been laid down by the Apex Court that the evidence of accomplice is undoubtedly admissible under Section 133 of the Evidence Act. However in view of the illustration contained in Section 114(b) of the Evidence Act, which says that an accomplice is unworthy of credit unless he is corroborated in material particulars, the Apex Court has further laid down that the Rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by other evidence.
23. Thus having regard to the rule of corroboration as laid down by the Apex Court in the above decision the question that arises for consideration is whether the statements of accused Aran Kanungo or for that matter the statement (s) of the accused in the case can be said to have been corroborated. In order to ascertain whether the statement (s) are corroborated it is essential to notice the statement(s). We may thus take up the statement of the accused i.e. Arun Kanungo at the first instance.
24. The statement of the appellant Arun Kanungo marked exhibit 13 is found to have been recorded partly in the narrative and partly in question and answer form. We find it sufficient to reproduce the summary of the said statement as incorporated in the written complaint as follows:
i) That on 27.07.2003 he received a telephone call from Shri Yasihey Yobin in the morning asking him to accompany him to Guwahati as he did not have any driver and he obliged. And on reaching, they boarded in Hotel Nandan, Guwahati as they had reached very late. The next day they left Guwahati and came back to Shillong. There were papers, files and Sri Yobin's bag in the car.
ii) That after few days Sri Yasihey Yobin called him over phone to his residence and asked him to meet in his office and on meeting his at his office Sri Yobin told him that one Sri Patrick has entrusted him with a job and if they succeed there would be good incentive for them. And when he asked Sri Yobin what was the stuff. Sri Yobin informed that it was 'top quality heroin'. Initially he did not believe that Sri Yobin could be into such thing, he however told Sri Yobin that he would give it a try but it would take time, as he did not know anyone in this trade.
iii) That he met one of his friends Sri Raju and told him about Sri Yobin's proposal and asked him if he knew anyone who could help.
iv) That he was told by Sri Yobin that he had procured that heroin from one Sri Patrick whom he used to contact through 'internet'.
v) That 3 (three) days after reaching Shillong, Sri Yobin contacted him and asked him to come to his office where he told him that Patrick was at Shillong and had handed over the stuff to him. And that he has put up Patrick at NEHU Guest House, in a VIP room, at Mawlai.
vi) That Sri Raju came in contact with one Sri Sharma through one 'Forcast' and after making basic enquiries through Raju; Sri Kanungo introduced Sri Sharma to Sri Yobin.
vii) That Sri Kanungo, Sri Raju Premji and Sri Yobin met at Hotel Magnum and called Sri Sharma at the Hotel. All four of them had a discussion at the hotel and decided that the deal would take place the following Monday.
viii) That on the following Monday Sri Yobin met both Sri Kanungo and Sri Raju at hotel Magnum, and Sri Sharma also came to the hotel after being called by Sri Raju. That Sri Yobin after having some discussion with Sri Sharma asked Sri Raju to go and get the material from Sri Yobins scooter and give it to Sri Sharma, which he did. Then Sri Yobin told Sri Kanungo that Sri Sharma would take the packet and he would hand him over the money to Sri Raju, as he was not willing to deal with any one else. Sri Sharma further stated that he would not take Raju to the main buyer but Raju would have to wait outside and accordingly both Raju and Sharma left. And that after sometime Sri Yobin received some hoax call and both of they got worried and left the hotel. Sri Raju also made a call to Shri Sharma and received similar calls and he came back to the hotel and not finding anyone there he went to Polo and contacted Sri Kanungo. That after few hours Sri Yobin came to Kanungo's house and told him that they must retrieve the stuff or pay money to Patrick. That Sri Raju later contacted Sri Yobin and took them to Sri Sharmas house and Sri Sharma assured that he would return the 'stuff' and also compensate in case of any damage. That after 5-6 days Sri Yobin called both Sri Kanungo and Sri Raju and informed that he had received that the packet but in torn condition. Sri Raju contacted Sri Sharma again and Sharma agreed to pay Rs. 10,000/- (ten thousand) as compensation.
25. A plain reading of the above statement throws sufficient light on the role played by the accused Aran Kanungo in the whole process of procuring the contraband and in the efforts made for selling of the same after they took its delivery. The above statement also makes it clear that the whole
operation was a joint effort of all the accused appellants. In view of this, it is essential to go through the statements made by the remaining -accused persons as well.
26. The statement of Yashihey Yobin the main accused, which has also been summarized and incorporated in the written complaint is as follows:
i) That the drugs recovered on 19.08.03 from the bag belonging to his brother-in-law Sri Lisihey Ngwarah was brought from Guwahati by Sri Yasihey Yobin himself along with his friend Sri Arun Kanungo.
ii) That one Sri Patrick at Guwahati handed over the said packet of heroin to him.
iii) That on the evening of 26.07.03 Sri Yobin received a phone call asking him to come to Guwahati and the next day he along with Sri Arun Kanungo drove down to Guwahati in Sri Yobin's vehicle and stayed in Hotel Nandan at Guwahati. The next day they met Patrick on the highway and after a long discussion. Sri Patrick handed him over the said packet containing drugs.
iv) That Shri Patrick told him that the cost of the said packet of drugs is Rs. 4 (Four) lakhs and that after sale of the said drugs, Rs. 3.5 lakhs (three lakhs and fifty thousand) only was to be given to him.
v) That Sri Patrick further told him that the contents of the packets weigh about 350 (three hundred and fifty) gms and also instructed him not to open the packet otherwise the contents might get damaged.
vi) That Sri Yobin and Sri Kanungo brought the said packet wrapped in a blue polythene packet and reached Shillong at about 2 P.M. Sri Yobin asked Sri Kanungo to keep the said packet in his custody but Sri Kanungo insisted him to keep the said packet in his custody. That till that time only Sri Kanungo and Sri Yobin only knew about it.
vii) That Sri Arun, Kanungo told him that the deal would take place within 4(four) days.
viii) That his brother-in-law Sri Lisihey Ngwarah was the only person to whom he had told he had kept the said packet in the suitcase and that no one should open it.
ix) That his brother-in-law Sri Lisihey Ngwarah might have taken out the said packet from the suitcase out of fear.
x) That it was at his own initiative that he asked his wife to contact Sri Lisihey Ngwarah and ask him to come back home and as per his instruction the contents of the said bag were presented before the Customs and 'SOT' officials, the Traditional Headman and others. Sri Yasihey Yobin in his questionnaire statement dated 20.08.03 inter-alia stated that:
i) That he know Sri Aran Kanungo since the year 2000.
ii) That he had procured the said packet containing heroin from one Sri Patrick at Guwahati on 28th July 03 at about 10 A.M. and that the packet was handed over to him in his vehicle.
iii) That he went to Guwahati along with Sri Arun Kanungo in his car (Maruti-Easteem-1000) on 27th July 03.
iv) That on 28.07.03 at about 09.45 A.M. Patrick handed him over the said packet at a little distance from the 'Network Bus Station' on the road at Guwahati and Sri Arun Kanungo drove me vehicle back to Shillong.
v) That Patrick told him that his product weighs about 350 gms and the cost is Rs. 5 (five) lakhs but he was giving him Rs. 4 (four) Lakhs and if it is sold he would give him Rs. 50,000 (fifty thousand).
vi) That Patrick used to use the perm 'product' while referring to drugs/heroin.
vii) That he did not have address or telephone number (s) of Patrick.
viii) That Patrick had called in his residence for five times calls were STD calls Patrick had called him in his mobile phone twice and in both these occasions calls were made from Guwahati.
ix) That till date he had received only one packet.
x) That Patrick had told him that he is a Burmese national.
xi) That he had kept the said packet in the back of the seal pocket of the vehicle.
xii) That initially he did not know whom Arun Kanungo was planning to sell the said drugs but later he came to know that Arun Kanungo had contacted one of his friends Raju for the sale of the said heroin who in turn had contacted one person called 'Bhaiji' for the same purpose.
xiii) That the packet of heroin was in his custody since 28.07.03 and on 04.08.03 he had given the packet to Raju in presence of Arun and Bhaiji.
xiv) That his brother-in-law's role was only to guard/keep the packet and not to remove or tell anyone about it.
xv) That his brother-in-law might have run away with the said packet seeing his house being searched.
27. Similarly, the summary of the statement of the remaining accused appellants namely Shri Lisihey Ngwarah, accused No. 2 and Shri Raju Premji, accused No. 4 are as follows:
Summary of the statement of Lisihev Ngwarah accused No. 2
i) That on 19.08.03, in the evening while he was sitting in his house, he came to know that some Police personnel and Customs officials were coming to search their house, he remembered that Yasihey Yobin had told him that some precious thing has been kept inside the suitcase, he realised that they must be coming for the particular thing. He then immediately opened he suitcase, took out the said packet and kept in his black colour shoulder bag and left the house to save his brother-in-law Sri Yasihey Yobin.
(ii) That on receipt of his sisters phone call he came back to the house and as per the direction of the Customs and Police officials took out the contents of the bag in presence headman of the locality and other independent witnesses. One packet containing 380 (three hundred and eighty) gms of heroin was recovered from his shoulder bag.
(iii) That he did not know exactly what was inside the suitcase but he had suspected that it was a 'serious thing' in the eyes of the SOT.
(iv) That after taking the 'things' with him he went to a friends's house who did not know the purpose of his coming.
(v) That he had no idea about the contents of the packet.
(i) That in the month of July '03, his friend Sri Arun Kanungo told him that he had managed some drugs and if he could help him in selling those drugs. Initially Sri Raju told Arun that he had never done this before, however he knew one boy called Forcast (per name) who is an addict and he might be able to help. And after few days he met 'Forcast' and asked him if he could help in selling drugs 'Forcast' then introduced one person called 'Bhaiji' to Sri Raju as a prospective buyer. Bhaiji was then introduced to Sri Kanungo.
(ii) That after few days Sri Arun Kanungo told him that the heroin actually belongs to one person from Arunachal. And then the said person from Arunachal was introduced to him. Sri Raju knew this person as Yogen.
(iii) That after few days, Sri Yobin and Arun told him that the staff has to be brought from Guwahati and asked us to come to Guwahati. It was arranged that Sri Yobin (Yogen) and Sri Arun would go in Sri Yobi's car and Sri Raju and 'Bhaiji' would go in Sri Arun's car. Accordingly, Sri Yobin and Sri Arun went to Guwahati in Sri Yobin's car and Sri Raju and 'Bhaiji' went separately in Guwahati. Sri Raju met Sri Yobin (Yogen) and Arun at Hotel Nandan, Guwahati. But finally the goods were not received by them and Sri Raju and 'Bhaiji' came back to Shillong.
(iv) That after few days Sri Yobin (Yogen) and Sri Arun contacted Sri Raju and asked him to contact 'Bhaiji' again which he did and Bhaiji agreed to buy the said heroin. As per plans Sri Yobin, Arun, Raju and 'Bhaiji' met at hotel Mangum, Shillong, where Sri Yobin told Sri Raju to collect the heroin from his scooter and give it to 'Bhaiji'. The person called 'Bhaiji' then took the packet and asked him to wait near Glory's Plaza, Police Bazar, Shillong. That, after a long wait Sri Raju called 'Bhaiji' in his mobile but was picket up by someone else who threatened him and he ran away from the spot. Shri Yobin after few hours contacted both Raju and Arun and told them that if the 'stuff' is not retrieved, they would be in trouble. That Sri Bhaiji was then contacted later and he returned the packet of heroin to Sri Yobin.
(v) That after few days Sri Arun told Sri Raju and Sri Yobin is asking for compensation as the packet was handed over to him in torn and damaged condition.
vi) That 'Bhaiji' agreed to pay Rs. 10,000/-(ten thousand) as compensation and asked them to come to Keating Road, Shillong. And that when Sri Raju and Arun were waiting for 'Bhaiji' at Keating Road, they were picked up by police.
(vii) That the name of the said 'Bhaiji' is Loknath Sharma and his residence is at Oakland, Shillong.
28. A bare reading of the above statements goes to show that each one of the accomplice consciously took part in the whole process of procuring the contraband and the subsequent efforts that were undertaken for disposing of the same to intending customers. The statements bring to the fore the role undertaken by each one of the accomplices and the manner in which the individual role was executed. The statement also makes it clear that the role undertaken and executed by one accomplice was supplementing the role assigned to the other accomplice in carrying forward the plan. Looked at from this angle is not difficult to say that the statement of Shri Arun Kanungo finds corroboration from the statement of other accomplice. However we cannot lose sight of the fact that the corroboration that is spoken of must come from some evidence other than that of another accomplice.
29. Therefore the pertinent question is whether the statement (s) find corroboration from other evidence. To find an answer to this question, we have gone through the evidence on record. The undemolished evidence on the record shows that the whole episode started on the basis of source information received by Shri M. Kharkrang, Additional Superintendent of Police, SOT of Meghalaya Police (PW-9). According to this witness his source informer came to his office at 6 to 6.30 P. M. on 19.8.2003 and informed him that some people had offered to sell drugs to him and they have decided to meet at Keating Road. On receipt of the information, he deployed plain clothes policemen who nabbed accused Arun Kanungo (accused No. 3) and Raju Premji (accused No. 4) when they turned up there to meet the source informer for the drug deal and brought them to his office. Even though nothing was found when they were searched they disclosed on interrogation that the drugs were in possession of one Yasihey Yobin (accused No. 1) and they were only on the lookout for prospective customers for the said drugs. They also informed that the said Yasihey Yobin lives in Dum Dum, Nongthymmai and his office was at Bijni complex. The information was then passed on to Custom officials which was received by Shri N.K. Bhandari, Inspector, Anti Smuggling Unit, Custom Division, Shillong. Hereduced the information in writing (exhibit 8) and submitted to his superior Shri R.M. Chyne, Superintendent of Customs (Anti Smuggling Unit, PW-7) who then proceeded accompanied by three Inspectors namely Shri D. Pakyntein (PW-11), Shri N. K. Bhandari (PW-4) and Shri B. Kar (PW-2) to Dum Dum, Nongthymmai where they met the Police party led by Mr. Kharkrang, Additional Superintendent of Police (SOT). According to this witness, he collected necessary particulars of Mr. Yobin who was present with the Police party and immediately obtained a search warrant (exhibit 20) and thereafter conducted the search of the residence of Mr. Yobin in presence of two independent witnesses namely Shri R.V. Dkhar, Headman of the locality (PW-3) and Shri D. Khyriem (PW-8). In course of the search, 380 grams of heroin was found and seized. A sample of the seized article was then forwarded to Forensic Science Laboratory, Kahilipara, Guwahati. Dr. Sapan Kumar Dutta, Deputy Director, Drugs and Narcotics Division of the said Forensic Science Laboratory (PW-1) stated that on examination the sample gave positive tests for heroin and the percentage ofheroin was found to be 83.33. He duly proved the report marked exhibit 1. The only objection raised by the learned Counsel with regard to such test was that the custom officials had forwarded the seized sample to Forensic Science Laboratory in Guwahati in violation of Standing Order 1/89 which requires such sample to be sent to one of the laboratories of the Central Revenue Control Laboratory. While conceding that the samples are required to be sent to Central Revenue Control Laboratory for test as per the above Standing Order Mrs. T. Yangi, learned CGC contended that the standing order was merely an executive instruction which cannot override the statutory provision as contained in Section 293(4) (e) Cr.P.C. Aperusal of this section shows that the Director, Deputy Director or Assistant Director of a State Forensic Science Laboratory is included in the list of Government Scientific experts to whom the section applies.
30. The learned CGC submitted that the process and procedure followed in FSL, Guwahati is as per the recommendation of the United Nations and samples in other cases are also sent to the same laboratory. In this regard, it is relevant to note that the Hon'ble Supreme Court in the recent case of State of Himachal Pradesh v. Pawan Kumar (2004) CrLJ 4614 held as follows:
There is no provision in the N.D.P.S. Act or Rules debarring chemical analysis of the opium, found to be in illegal possession of an accused, contrary to the provision of the act and seized, in any other laboratory, which may be authorized to analyse the sample. There is also no requirement that such opium must be examined by the Chemical Examiner within the meaning of Rule 2(c).
In view of the above statutory provision, the clarification given by the learned CGC, and the decision cited above, we have to say that we find no illegality in the process adopted by the Custom authorities in the matter.
31. No doubt, efforts were made by the learned Counsel to show that the seizure itself was illegal and as such, the seized items cannot be used as evidence in support of the prosecution case. The submission made by Mr. B. Bhattacharjee, learned Counsel for the appellant Raju Premji is that the information regarding the drug deal was first received by the SOT but curiously the SOT did not reduce the information into writing as mandatorily required under the provisions of Section 42 and such non-recording of the information vitiates the entire proceedings. There is no doubt that the SOT did not reduce the information into writing, but only passed on the information to the Custom authorities and the information was reduced into writing by them. It is, however contended by the learned Counsel that the information which was reduced into writing i.e. exhibit 8 itself reveals that the information received was to the effect that the heroine was concealed in the house of accused Yasihey Yobin and the SOT would be able to identify it. This fact, according to the learned Counsel proves that the State Police had already entered the place and had identified the contraband before the information was reduced into writing. This, it is further contended, did not only result in violation of Section 42 but also vitiated the seizure. Even though this point was seriously pressed by the learned Counsel, we hardly find any merit in the submission. It is true that the information was not reduced into writing by the SOT and it was the Custom officials who reduced information into writing when the information was passed on to them by the SOT.
32. We are, however, unable to find any serious illegality in the process adopted in the case inasmuch as, the inquiry in the case was conducted by the Customs Department and not by the State Police. Similarly, we are unable to find any merit in the submission that the seizure being vitiated, the items seized cannot be used as evidence in support of the prosecution case. A Full Bench of Kerala High Court in Kochan Velayudhan v. State of Kerala : AIR1961Ker8 , has held that although the failure to comply with the provisions regulating searches may cast doubts upon the bonafides of the officers conducting the search there is nothing in law which makes the evidence relating to an irregular search inadmissible. The Apex Court in Pooranmal v. Director of Inspection : [1974]93ITR505(SC) , while approving the view taken by the Privy Council in Kuruma v. R. 1955 AC 197 observed that:
The courts both in India and England have consistently refused to exclude relevant evidence mainly on the ground that it is obtained by illegal search or seizure.
Thus, according to this decision, evidence obtained as a result of illegal search or seizure is not liable to be shut out unless there is an express or implied provisions in the Constitution or other laws. In Pratap Singh v. Directorate of Enforcement : 1986CriLJ824 , the Apex Court concluded the matter asunder:.After all in course of a search things or documents are required to be seized and such things and documents when seized may furnish evidence. Illegality of the search does not vitiate the evidence collected during such illegal search.
It is thus clear from the above that even assuming that the search was illegal, the seizure of the articles is not vitiated and the evidence of such seized articles need not be ignored and overlooked as they furnish evidence. Therefore, the contraband which has been seized in the present case, forms an important evidence in support of the prosecution case.
33. Now, coming to the nature and extent of corroboration required in such matter, it might be noted that as per the guidelines laid down by the Apex Court in State of Bihar v. Basawan Singh reported in : 1958CriLJ976 and Ramanlal Mohanlal Pandya v. State of Bombay reported in : AIR1960SC961 , it is not necessary that there should be independent corroboration of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonable to act upon it. The corroboration need not be direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. Looked at from this point of view, it is not difficult to conclude that the statement (s) made by all the accused persons find corroboration from the evidence and other circumstances brought on record.
34. Further contention urged by Mr. Qureshi is that there was no direct recovery of contraband from the accused Mr. Yobin and as such his conviction under Section 21(c) of the NDPS Act was unsustainable. It is true that the contraband was not found on opening the bag in which the accused had stated that he had kept but it was later recovered from the shoulder bag which was brought by Lisihey Ngwarah (accused No. 2) on being called by the wife of the accused Yobin. However, we cannot lose sight of the fact that accused Lisihey Ngwarah was brought into the picture by the accused Yasihey Yobin who disclosed that Lisihey Ngwarah was his brother-in-law to whom he had confided and told him about the contraband having been kept in the suitcase. We cannot also lose sight of the fact that when the contraband was found missing from the suitcase, the suspicion ofYasihey Yobin fell on Lisihey Ngwarah and it was at his behest that his wife called up Lisihey Ngwarah in response to whice he returned with the shoulder bag from inside which he himself took out the contraband in presence of independent witnesses. In these circumstances, it would be unreasonable to conclude that he was not in possession of the contraband. It is a well recognized position in law that possession need not always be physical possession and it can also be constructive. According to Blacks Law Dictionary, the law in general recognizes two kinds of possession : actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is thus in actual possession of it. A person who, although not in actual physical possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is thus in constructive possession of it.
Hence, keeping in view the broad connotation of the word possession and also the fact that possession need not always be physical, we have no hesitation to hold that the accused Yasihey Yobin was correctly found to have been in possession of the contraband.
35. Now, coming to the next submission of the learned Counsel in respect of the accused Lisihey Ngwarah, it was firstly pointed out that the statement Ext. 11 contains mention of Sections 193 and 228 IPC which a layman like him could not have been in apposition to mention. This, according to the learned Counsel clarly showed that the statement was manipulated to some extent to implicate him. It is, however, to be noted that the fact that the contraband was seized from his possession is not seriously disputed. All that is contended is that, according to the prosecution itself, the accused was not aware of the fact that the precious thing which he had removed from the suitcase and was carrying was a drug. Hence, even though he was carrying the drug, he being unware of it, his conviction under Section 21(c) was not sustainable. It must be conceded that the whole evidence on record goes to show that accused Lisihey Ngwarah was having no knowledge of the fact that the special thing he was carrying in his shoulder bag was drug. He came to know that it was heroin only when a sample of it was tested and the same was declared to be heroin. It was therefore contended that the prosecution had failed to establish that the accused knew that he was in possession of some drug. The question is whether in the circumstances, the accused can be held to be in conscious possession of drug and can be convicted under Section 21 (c) of the NDPS Act.
36. To find an answer we may profitably refer to the case of Inder Sain v. State of Punjab : 1973CriLJ1537 in which the Apex Court interpreted the word 'possession'. In this regard, it is relevant to mention that the case was one under the Opium Act 1878. The facts of the case in short were that a Railway receipt, for consignment of a parcel of apples purporting to be from one UD of Solan to one SL of Dhuri and endorsed to him by the consignee, was presented by the appellant to the parcel clerk at the Railway Station, Dhuri and he got delivery of the consignment. On secret information, one head constable organized a raid with the help of two public persons. While the appellant was carrying the parcel, the head constable intervened and questioned him. The parcel was thereafter opened and it was found to contain 4,350 grams of opium alongwith the apples. The appellant was prosecuted and convicted under Section 9 of the Opium Act, which conviction was confirmed in appeal and also in revision. In an appeal by special leave, the Supreme Court interpreted the word 'possess' as follows:
It does not follow from this that the word 'possess' in Section 9 does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word 'possess' connotes, in the context of Section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession.
37. It is also relevant to state that there was no evidence in the case that the appellant was aware that the parcel contained any contraband substance much less opium. It was thus contended on behalf of the appellant that the prosecution had failed to prove conscious possession of the appellant. While rejecting the plea their Lordships of the Supreme Court observed:
But it is said on behalf of the prosecution that in most cases of unauthorized possession of opium the prosecution will never be able to prove that the accused was knowingly in possession of the article and that the burden to prove that he was not in conscious possession is upon the accused by virtue of Section 10 of the Act. That section seems to proceed on the assumption, if it is proved that the accused had something to do with opium, then the burden of proof that he has not committed an offence will be upon the accused. In other words, when once it is proved in a prosecution under Section 9 of the Act that the accused was in physical custody of opium, it is for the accused to prove satisfactorily that he has not committed an offence by showing that he was not knowingly in possession of opium. It would, therefore, appear that the prosecution need only show that the accused was directly concerned in dealing with opium. If the prosecution shows that the accused had physical custody of opium, then, unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption under Section 10 would arise. We do not think that the language of Section 10 would warrant the proposition that for the presumption mentioned in the section to arise it is necessary for the prosecution to establish conscious possession.
38. It would be relevant to bear in mind that Section 10 of the Opium Act 1878 referred to above corresponded to the provisions of Section 54 of the NDPS Act 1985. For convenience of reference, we may reproduce the section as follows:
Section 54. Presumption from possession of illicit articles--In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) Any narcotic drug or psychotropic substance or controlled substance;
(b) Any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) Any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) Any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.
39. Keeping in view the fact that the two provisions namely Section 10 of the Opium Act and Section 54 of the NDPS Act correspond to each other, it would be appropriate to bear in mind that the construction placed upon Section 10 of the Opium Act would be applicable with all force to the interpretation of Section 54 of the NDPS Act.
36. Now, coming to the question of presumption envisaged under Section 54 of the NDPS Act, it may be noted that the presumption under the section is a presumption of law which stands on a different footing from an optional presumption of fact as envisaged by Section 114 of the Evidence Act. Drawing a distinction between the presumption under Section 114 of the Evidence Act and a statutory presumption mandatory upon the Court, the Apex Court in Dhanvantrai Desai v. State of Maharashtra : 1964CriLJ437 observed as follows:
The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved, which occur in this provision make it clear that the presumption has to be rebutted by 'proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.
41. The position of law that unmistakably emerges from the above, is that a bare explanation which is merely plausible would not be sufficient for rebutting the presumption that the accused has committed an offence ereated by the provision. It is only the explanation which is supported by proof that can rebut a presumption created by the provision. Admittedly, the explanation put forward by the defence in the present case lacks support by 'proof and consequently it must be held that the presumption that the concerned accused has committed an offence under the relevant provision of the Act does not stand rebutted. The contention urged by the learned Counsel in this regard has therefore to be rejected.
Consequently, we find no infirmity in the finding arrived at by the learned Special Court that both the accused namely Yasihey Yobin and Lisihey Ngwarah were in possession of the contraband.
42. One last argument again jointly urged by the learned Counsel for the appellants is that since the information was first received by the State Police, the State Police ought to have taken up the inquiry and conducted the investigation instead of handing over the same to the Customs Department. The very fact that the State Police handed over the investigation to the Customs Department, according to the learned Counsel, introduced an element of irregularity vitiating the whole process. We, however, find it hardly necessary to say that the submission is without merit. The position would certainly have been different if the Custom authorities to whom the information was passed on by the State Police and who took up the inquiry thereafter were not authorized to conduct the inquiry in narcotic drugs. There is no doubt that the Custom authorities are duly authorized to conduct such inquiries. No illegality can therefore be attributed to the course adopted by the State Police and the Customs Department. This ground therefore does not carry the defence case any further.
43. In view of the foregoing discussion, we are unable to find any fault with the conclusion arrived at by the learned Special Judge that the evidence on record establishes that the accused Yasihey Yobin and Lisihey Ngwarah were found in possession of 380 grams of heroin and the other accused namely Arun Kanungo and Raju Premji associated themselves in finding prospective customers for disposing of the contraband whereby they abetted commission of the crime within the meaning of Section 29 of the NDPS Act.
In the result, we find no ground to interfere with the impugned judgment of conviction and sentence. Accordingly, the impugned judgment and order is hereby affirmed and all three appeals stand dismissed.
.