Brief Facts
- Based on secret information, NCB officials along with two panch witnesses conducted a raid at the Kheda ST Bus Stand, where two suspects were spotted. One of them, later identified as Anwarkhan (A-1), was apprehended with a bag containing two polythene packets of contraband weighing 2 kg 30 gms, while the other suspect escaped. Since the bus stand was crowded, the team shifted to the nearby PWD Guest House where seizure, sampling, and sealing were carried out in the presence of panchas. A-1 was then served a Section 67 NDPS Act summon, his statement was recorded, and he was formally arrested.
- Investigation later revealed that the absconding suspect was Firdoskhan (A-2), who was traced by the Madhya Pradesh Police. He was taken to the NCB Office, Ahmedabad on 9 February 2003, where after being served a Section 67 NDPS Act summon, his statement was recorded, and he was subsequently arrested in the case.
- One part of samples was forwarded to the FSL and second part of samples was forwarded to the Central Revenues Control Laboratory, New Delhi (hereinafter being referred to ‘CRCL’). After analysis, a report was received to the effect that the samples gave positive test for presence of ingredients of brown sugar/heroin and Diacetyl Morphine contents were found therein.
- A complaint came to be filed by Intelligence Officer, Vikram Ratnu(PW-3) against both the accused in the Court and pursuant to trial the Trial Court proceeded to convict and sentence the Appellants. The appeals preferred by the appellants were rejected by the High Court of Gujarat.
Issues
- Whether provisions of section 42 of the NDPS Act are required to be complied with when the recovery of the contraband has been made from open place?
- Whether the provisions of section 50 of the NDPS Act are applicable in the case when the recovery has not been made from the person of the accused but from the bag held by him?
- Whether confessional statements made to officers under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are admissible in evidence against the accused.
Held
- The Supreme Court upheld the conviction of Appellant Anwarkhan after concluding that prosecution has duly proved the guilt of Anwarkhan(A-1) beyond all manner of doubt by leading convincing and satisfactory evidence. However, the appeal of the Appellant Firdoskhan was allowed and he was acquitted as he was for the first time identified though the statement of A-1 recorded under section 67, however, the same was held to be inadmissible. The findings of the court are as under:
Section 42 not applicable in case of seizure from open place
- Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected.
Section 50 not applicable when recovery not made during personal search
- So far as the contention of learned counsel for the appellants that the search and seizure proceedings are vitiated on account of the non-compliance of Section 50of the NDPS Act is concerned, the same is also noted to be rejected because admittedly, the seizure in this case was not effected during personal search of the appellant Anwar Khan(A-1). Admittedly, the contraband was being carried in a polythene bag held by the appellant Anwar Khan(A-1) in his hand and hence, there was no requirement for the Seizure Officer to have acted under the provisions of Section 50 of the NDPS Act before conducting the search and seizure proceedings.
Statement of A-1 recorded under section 67 was held to be inadmissible
- The name of Firdoskhan(A-2) cropped up for the first time in the statement of Anwarkhan(A-1) recorded under Section 67 of the NDPS Act. However, we are duly satisfied that the sequence in which the said statement came to be recorded completely discredits the reliability thereof. Anwarkhan(A-1) was apprehended at the bus stand with the packet of narcotic drug at around 4:30 p.m. His signatures had been taken on the panchnama(Exhibit-30) prepared at 9:00 p.m. and thus, it does not stand to reason that the Intelligence Officer would defer arresting Anwarkhan(A-1) to a later point of time because, as per the arrest memo(Exhibit-43) his arrest is shown at 11:45 p.m. It seems that this deferment in formal arrest of Anwarkhan(A-1) was only shown in papers so that the Intelligence Officer could record
the statement of Anwarkhan(A-1) under Section 67 of the NDPS Act and avoid the same being hit by the rigours of Article 20(3) of the Constitution of India. - The statement(Exhibit-42) of Anwarkhan(A-1) wherein he allegedly identified the appellant Firdoskhan(A-2) as the person who had escaped from the spot cannot be read in evidence against the appellant Firdoskhan(A-2) because the manner in which the said statement was recorded leaves much to be desired and creates a grave doubt on the sanctity thereof, in addition to the same having rendered inadmissible by virtue of Tofan Singh( (2021) 4 SCC 1).
Relevant Para No.
- 19, 22, 26, 27 and 32