Maharashtra General Kamgar Union Vs. Solid Containers Ltd. and ors. - Court Judgment

Excerpt:
- narcotic drugs & psychotropic substances act, 1985[c.a. no. 61/1985]section 18; [s.b.sinha & v.s.sirpurkar, jj] confession made by accused before custom officer - held, section 25 of evidence act applicable to such confession. by virtue of section 53 (2) of ndps act, customs officers are invested with powers of police officers. a legal fiction must be given its full effect. view that confession made before custom officer under section 108 of customs act can be sole basis of conviction; is not acceptable. a search and seizure or an arrest made for the purpose of proceeding against a person under the act cannot be different only because in one case the authority was appointed under the customs act and in the other under another act. what is relevant is the purpose for which such arrest or search and seizure is made and investigation is carried out. the law applicable in this behalf just be certain and uniform. section 18;standing order; held, preservance of original wrappers, comes within the purview of the direction issued in terms of section 3.1 of the standing order no.1 of 1989. contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the court. sections 22 & 23; prosecution for offences under - custom officers recovered heroin at airport from accused - weight of original sample was recorded as 5 grams but weight of sample sent to laboratory was recorded as 8.7 grams - colour of sample was recorded as brown by i.o., but as per chemical examiner, colour of sample was white - sample were kept at airport for three days, without any explanation; whereas they were to be deposited in malkhana - as per panchnama, bulk quantity was kept in cotton bags; whereas at the time of receiving at malkhana, they were recorded to be packed in tin - seal was not deposited in malkhana; no explanation offered - case property not produced in court. held, on taking consideration of cumulative effect of large number of discrepancies; serious doubts are created on prosecution story. conviction is liable to be set aside. sections 22 & 23; held, individual discrepancies may not be fatal. but if on cumulative effect of all discrepancies is taken and prosecution case takes creditability then conviction must set aside. sections 35 & 54; [s.b.sinha & v.s.sirpurkar, jj] constitutionality - held; act contains draconian provisions. act was enacted having regard to the mandate contained in international conventions on narcotic drugs and psychotropic substances. only because the burden of proof under certain circumstances is placed on the accused, the same by itself cannot render the impugned provisions unconstitutional. section 52-a; production of case property in court -recovery of heroin - physical evidence relating to three samples taken from the bulk amount of heroin were also not produced. held, even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under section 52a of the act. section 52-a; disposal of seized articles - a certificate issued under section 110(ib) of the customs 1962 act can be recorded as a certificate of authentication and no more; authority for disposal would require a clear direction of the court in terms of section 52-a of the act. physical evidence being the property of the court and being central to the trial must be treated and disposed of in strict compliance of the law. guidelines; [s.b.sinha & v.s.sirpurkar, jj] guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis--vis a departmental proceeding, rigours of such guidelines may be insisted upon when directions are issued by an authority having the legal sanction granted therefore, it becomes obligatory on the part of the subordinate authorities to comply therewith. statement made at the bar; evidentiary value - a statement made at the bar in regard to existence of a general practice cannot be a substitute of evidence whereupon only the court could rely upon. -- constitution of india. article 21: fair trial held, a fair trial is a human right. marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the code of criminal procedure and evidence act must be followed. appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. customs act, 1962 -- section 108; [s.b.sinha & v.s.sirpurkar, jj] confession made by accused before custom officer - held, section 25 of evidence act applicable to such confession. by virtue of section 53 (2) of ndps act, customs officers are invested with powers of police officers. a legal fiction must be given its full effect. view that confession made before custom officer under section 108 of customs act can be sole basis of conviction; is not acceptable. a search and seizure or an arrest made for the purpose of proceeding against a person under the act cannot be different only because in one case the authority was appointed under the customs act and in the other under another act. what is relevant is the purpose for which such arrest or search and seizure is made and investigation is carried out. the law applicable in this behalf just be certain and uniform. confessional statement made by accused under section 108 of the act cannot be made use of in any manner under section 138-b of the act. even otherwise such an evidence is considered to be of weak nature indian evidence act,1872[c.a.no.1/1872] -- section 25: [s.b.sinha & v.s.sirpurkar, jj] confession made by accused before custom officer - held, section 25 of evidence act applicable to such confession. by virtue of section 53 (2) of ndps act, customs officers are invested with powers of police officers. a legal fiction must be given its full effect. view that confession made before custom officer under section 108 of customs act can be sole basis of conviction; is not acceptable. a search and seizure or an arrest made for the purpose of proceeding against a person under the act cannot be different only because in one case the authority was appointed under the customs act and in the other under another act. what is relevant is the purpose for which such arrest or search and seizure is made and investigation is carried out. the law applicable in this behalf just be certain and uniform. retracted confession may be relied upon if it is made voluntary and burden of proof that it was made voluntary lies on prosecution. indian evidence act,1872[c.a.no.1/1872] section 164-a: [s.b.sinha & v.s. sirpurkar,jj] presumption of innocence of accused held, presumption of innocence being a human right cannot be thrown aside, but it has to be applied subject to exceptions. independence of judiciary must be upheld. the superior courts should not do something that would lead to impairment of basic fundamental and human rights of an accused - fortunately, however, during the course of hearing the well-merited gesture mr. pai, the learned senior advocate the respondent has led to a happy end to the controversy in the matter. 252 of 1990 as well as the orders passed by the courts below i.order1. the commencement of the present industrial dispute being the subject matter of this appeal by the grant of special leave relates back to the year 1985 and fifteen (15) long years have passed without however, conferment of any benefit to any of the parties. fortunately, however, during the course of hearing the well-merited gesture mr. g.b. pai, the learned senior advocate the respondent has led to a happy end to the controversy in the matter. the appeal thus being disposed of by consent of the parties the manner following: a. by consent of the parties, the impugned order dated june 23, 1995 of the high court passed on i.p.a. no. 12 of 1991 in writ petition no. 252 of 1990 as well as the orders passed by the courts below i.e. by the industrial court and by the learned single judge of the high court in w.p. no. 252 of 1990 are set aside. b. the proceedings are closed subject to the following directions by consent of the parties: i. learned senior counsel for the respondent-management has produced before us a list of 24 employees who, according to the respondent-management will be entitled to get monetary benefit towards full and final satisfaction of their claims in the present proceedings. ii. we are informed by learned counsel for the appellant that in addition to 24 listed employees there may be three more. if that is so, the said monetary benefits will also be made available to the three employees along with the 24 listed employees who will be paid towards full and final satisfaction of their claims in the present proceedings a sum of rs. 1 lac each by the respondent-management on due verification and identification by the respective unions before the representative of the management within eight weeks from today. iii. the amount of rs. 1 lac payable to each of the 24 listed employees along with the three more employees on due identification shall be paid by way of bank drafts drawn in favour of each of them. 2. no costs.

Judgment:
ORDER

1. The commencement of the present industrial dispute being the subject matter of this appeal by the grant of special leave relates back to the year 1985 and fifteen (15) long years have passed without however, conferment of any benefit to any of the parties. Fortunately, however, during the course of hearing the well-merited gesture Mr. G.B. Pai, the learned Senior Advocate the respondent has led to a happy end to the controversy in the matter. The Appeal thus being disposed of by consent of the parties the manner following:

A. By consent of the parties, the impugned order dated June 23, 1995 of the High Court passed on I.P.A. No. 12 of 1991 in Writ Petition No. 252 of 1990 as well as the orders passed by the Courts below i.e. by the Industrial Court and by the learned single Judge of the High Court in W.P. No. 252 of 1990 are set aside.

B. The proceedings are closed subject to the following directions by consent of the parties:

I. Learned senior counsel for the respondent-management has produced before us a list of 24 employees who, according to the respondent-management will be entitled to get monetary benefit towards full and final satisfaction of their claims in the present proceedings.

II. We are informed by learned Counsel for the appellant that in addition to 24 listed employees there may be three more. If that is so, the said monetary benefits will also be made available to the three employees along with the 24 listed employees who will be paid towards full and final satisfaction of their claims in the present proceedings a sum of Rs. 1 lac each by the respondent-management on due verification and identification by the respective unions before the representative of the management within eight weeks from today.

III. The amount of Rs. 1 lac payable to each of the 24 listed employees along with the three more employees on due identification shall be paid by way of Bank drafts drawn in favour of each of them.

2. No costs.