Judgment:
O.P. Bishnoi, J.
1. This appeal has been preferred by accused Moti Singh who has been found guilty for the offences Under Section 8/18 and 8/29 of the N.D.P.S. Act by the court of Special Judge, N.D.P.S. Cases, Chittorgarh vide judgment dated 25.7.2000. Rigorous Imprisonment for 12 years and a fine of Rs. 1 lac and further rigorous imprisonment of one year for non-payment of fine has been ordered for each offence.
2. The prosecution case, in brief, is that on 2.5.1996 the Inspector of Central Narcotics Bureau Y.K. Chaturvedi along with Superintendent Rakesh Kumar and others went to Medikhera Railway Crossing where a Fiat car bearing No. RJN 4533 came from Chittorgarh side. They signalled the car to stop but the car did not stop, whereupon they chased the car which ultimately was found near a hotel but the occupants were able to make their escape good. A search was made and two packets were recovered under the seat of the driver which contained opium weighing 18.530 Kg. As the occupants could not be recognised the articles lying in the car, were scrutinized and from the pocket of the shirt lying in the car, an envelop was recovered which contained the name of the addressee as 'Moti Singh R/o Village Sarwania Bore, Post Newad, District Mandsor (MP)'. The Narcotics people went to the said village and the house of the appellant was searched but nothing objectionable was found in the house.
3. According to the prosecution story, summons were sent to the appellant but he did not appear and ultimately it came out that he was in custody in the Central Jail, Udaipur in connection with some other case along with the co-accused Bherulal. Bherulal and appellant Moti Singh, with permission of the concerned court, were taking into custody by the Narcotics people and it is alleged that their statements Ex.P/16 and Ex.P/17 were recorded on 21.8.1996 whereby both allegedly admitted that the car in question belonged to Sukh Ram and Mangilal who occasionally used to come to Bherulal and appellant Moti Singh for the purchases of opium and on 1.5.1996, the opium weighing 9 Kg. was provided to them by the co-accused Bherulal. They further disclosed that Bherulal and Moti Singh, on 10.8.1996 while bringing 5.500 Kg. opium for Sukhram and Mangilal, were arrested near Udaipur and were put in jail.
4. On the basis of the alleged confessional statements, challan was filed in the said court against Bherulal and Motisingh after declaring Sukhram as absconder. The charges were framed and both pleaded not guilty. PW-1 Chaturbhuj, PW-2 Rakesh Kumar, PW-3 V.K. Chaturvedi, PW-4 D.S. Shishodia, PW-5 Raichand and PW-6 Kazi Naseem Ahmed were examined by the prosecution. No defence evidence was led by the accused-persons. The learned trial court heard the arguments and delivered the judgment dated 25.7.2000 against which this appeal has been preferred by the convict Motisingh.
5. I have heard learned Counsel for the appellant and learned Counsel appearing on behalf of the Union of India.
6. As pointed out earlier, the prosecution case has been based solely on the confessional statements Ex.P/16, Ex.P/17 and Ex.P/18 and there is no other evidence to connect them with the crime. According to the learned Counsel for the Union of India, the statements were voluntary and without duress and hence, the finding of the learned trial court cannot be challenged. Learned Counsel for the appellant submits that there is no circumstance to suggest that the statements in question were voluntary as the accused-persons were in the Central Jail and from there, they were taken into custody by the Narcotics people and while in custody, their statements were allegedly recorded. Learned Counsel for the appellant has relied upon the following judgments:
(1) Paramjit Singh and Anr. v. Union of India (II (2000) CCR 166).
(2) Veera Ibrahim v. State of Maharashtra : 1976CriLJ860 ,
(3) Suaibo lbow Casamma v. Union of India : 1995(80)ELT762(Bom) ,
(4) Raj Mal v. Union of India 1998-99 (Supp.) Cr. L.R. (Raj.) 122
(5) SatyaNarain v. Union of India (2001 Cr.L.R. (Raj.) 445)
(6) Jagdish v. Central Bureau of Narcotics (2000 Cr.L.R. (Raj.) 1556,
7. After hearing the learned Counsel for the parties, I am of the clear view that it is difficult to agree with the conclusion drawn by the learned trial court and the appeal requires to be allowed. There is no circumstance, on the basis of which, it can be said that the statements Ex.P/16 and Ex.P/18 were made voluntarily. As pointed out earlier, the accused-appellant was in custody in connection with some other case in the Central Jail, Udaipur, from where, he was taken on remand on 20.8.1996 as stated by PW-4 D.S. Shishodia who allegedly recorded the confessional statements of the two accused-persons. This witness in a very clever manner has stated that he got the custody of two accused-persons on 20.8.1996 at 6.00 P.M. and officially arrested them on 22.8.1996 subsequent to recording of their statements by him implying that prior to the official arrest, they were free and there was no coercion at the time of recording the statements. I find that the testimony and conduct of PW-4 D.S. Shishodia is unacceptable and is rather deplorable. The detention beyond 24 hours between 20.8.1996 to 22.8.1996 was without any legal authorisation and it is unacceptable that during this period, they were not in custody. PW-4 D.S. Shishodia had to admit in his cross-examination, that from the Central Jail Udaipur, Motisingh and Bherulal were remanded to his custody and thereafter they remained in the custody of Narcotics people and were confined to Narcotics premises where they were interrogated and their statements were recorded. The record shows that statement of Motisingh Ex.P/16 was recorded on 21.9.1996 and his statement runs in five pages. Nowhere he has stated that he supplied the opium in question or the opium was supplied in his presence. Realising that the accused could not be implicated on the basis of the statement Ex.P/16, the Narcotics people proceeded to record his second statement Ex.P/18 on 22.9.1996. Ex.P/18 discloses that Sukhram and Mangilal were staying with Motisingh where Bherulal was called on 30.4.1996 and at the house of Motisingh, Bherulal delivered 1.500 Kg. opium to them, for which, he was paid Rs. 6200/- on 30:4.1996. Further it is stated that on 1.5.1996 Bherulal returned with another 7.500 Kg. of opium which was weighed and delivered to Sukhram and Mangilal at the house of Motisingh and Bherulal was paid Rs. 39,000/-. Ex.P/18 further states that thereafter Motisingh took Sukh Ram to Prahlad Baori who delivered 4 Kg. opium to Sukhram for Rs. 20,000/-. It is further recorded that Mangilal of his own went somewhere and returned with 5.500 Kg. of opium. In this way, the opium weighing 18.500 Kg., found in the car on 2.5.1996, was explained. I find that since the accused Motisingh could not be implicated on the basis of his statement Ex.P/16 recorded on 21.9.1996 and since the Narcotics people were keen to implicate him, his second statement Ex.P/18 was recorded on 22.9.1996. The two statements are not complimentary but are contradictory. According to Ex.P/16, Sukhram and Mangilal approached many a times but on account of his physical incapability, Motisingh declined to supply them any opium. On 1.5.1996 also, they came to him, so that, he could help them in collection of the opium but Motisingh declined their offer. Thereupon, they both left for Bherulal's house situate in another village Modi' and till 12.5.1996 Moti Singh had no idea of anything. According to Ex.P/16, on 12.5.1996 in the town-ship of Neemach (MP) Bherulal informed the appellant that he provided the opium on 1.5.1996 to Sukhram and Mangilal and Motisingh informed Bherulal that the house of Motisingh was searched by the Narcotics people after recovering the opium from the Fiat Car. In the statement Ex.P/18, Motisingh allegedly gave another story and admitted that the opium was supplied by Bherulal to Sukhram and Mangilal at his house in two instalments and in village 'Modi' Prahlad Baori supplied 4 Kg. opium to them where they were taken by Motisingh.
8. From the facts narrated above, it has become clear that the Narcotics people took the appellant from the Central Jail, Udaipur in their own custody on 20.9.1996 and needless to say that they were not empowered to keep him in their custody for more than 24 hours without any empowerment from a competent Magistrate or the trial Judge. In the instant case, it is admitted that from 20.9.1996, 6.00 PM to 22.6.1996 when the arrest memos Ex.P/19 and Ex.P/20 were prepared, the detention beyond 24 hours was illegal. According to the Arrest Memo Ex.P/19, the date as well as time of arrest has to be recorded but in a very dishonest manner, no time of arrest has been shown and only the date 22.9.1996 has been mentioned. The first statement Ex.P/16 bears the date 21.9.1996 and no time has been mentioned. It is not made clear as to whether Ex.P/16 was recorded prior to 6.00 PM or after it. In any case, the statement Ex.P/18 was recorded on 22.9.1996 and the custody of Motisingh was illegal after 6.00 PM on 21.9.1996. I find that neither the statement was voluntary nor the custody was legal. No conviction can be based in a case like this.
9. Consequently, the appeal is allowed. The judgment dated 25.7.2000 finding the appellant guilty, is set aside. The appellant Motisingh is acquitted of both the charges. The amount of fine, if deposited by him, shall be refunded to him.