Union of India v. Satrohan

1. Challenge in this appeal is to the judgment of the acquittal passed by learned Single Judge of the Allahabad High Court, Lucknow Bench, directing acquittal of the respondent (hereinafter referred to as the ‘accused’) by setting aside the judgment of conviction recorded by learned Additional District and Sessions Judge, Lucknow in Criminal Appeal No.65 of 1993. The trial Court had convicted the respondent for offences punishable under Section 8(c) and 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short the ‘Act’) and sentenced to undergo RI for 10 years and fine of rupees one lakh with default stipulation.

2. Prosecution version in a nutshell is as follows: On the basis of secret information Sri Naseem Ahmad, an Inspector of Narcotics Department along with other officials raided the house of the respondent on 20.11.1992 at about

8.00 a.m. in village Dadari Jamalpur. The house of the respondent was searched and from his house 29 bags containing poppy straws were recovered. The respondent could not explain legal possession of poppy straws weighing 309 kgs. The respondent was arrested and after investigation charge sheet was submitted against him. The respondent denied the possession and ownership of the property in question and claimed trial. The trial Court found the evidence adduced to be clear and cogent and directed conviction and imposed sentence as afore-noted. In appeal, the High Court directed acquittal by a practically non-reasoned order holding that there was noncompliance of Sections 42(2) and 50 of the Act. It was noted that the Narcotics Department has given licence to the father of the respondent for cultivation of opium and if there had been recovery of poppy straws it might be relatable to the ownership of father of the respondent.

3. Learned counsel for the appellant submitted that the trial Court had relied upon the confession of the accused respondent and the grounds on which the High Court directed acquittal are (i) non examination of independent witnesses; (ii) lack of evidence to show exclusive ownership; and (iii) the alleged non compliance of Sections 42(2) and 50 of the Act.

4. It is pointed out that Section 50 is not applicable to the case. Additionally, under Section 57 secret information has to be sent and the particulars of seizure and arrest have to be sent. The records if asked for could have been produced. In the instant case there is no evidence led or not even any question was asked about absence of records. In the alternative, the inspector was a Gazetted Officer and, therefore, even if it is conceded for the sake of argument that there is any incorrect reference, the acts are covered under Section 41 and not under Section 42.

5. Learned counsel for the respondent on the other hand submitted that the confessional statement could not have been relied upon. The statement was recorded by PW-2 and by the investigating officer (PW-6) on 20.11.1992. There could not have been any recording of statement by PW-6 as he was entrusted with investigation on 3.12.1992. It is pointed out that the investigating officer was not a Gazetted Officer. Since authorization was obtained Section 57 comes into play. It is pointed out that there is licence of the father also. Therefore, the High Court’s order does not suffer from any infirmity.

6. Section 2(xv) and Section 2(xviii) define “opium’ and “poppy straws” respectively. It is the stand of the respondent that since there was licence of opium, obviously there is presumption that there was licence of poppy straws. As a matter of fact the High Court did not direct acquittal on the ground that there was licence for poppy straws also. The evidence on record clearly shows that the expressions “opium” and “poppy straws” are not interchangeable as contended by learned counsel for the respondent, as Section 2(xiv) clearly makes out a distinction between opium and poppy straws. So far as the role of PW-6 is concerned, it is to be noted that there is no reference to the stand presently highlighted by the High Court.

7. Undisputedly, there are two different entries for opium and poppy straws. Opium appears at Sl. No.92 while poppy straws appear at Sl. No.110. The statement of the accusedrespondent in terms of Section 67 throws considerable light on the controversy. In the statement recorded there was no retraction and in fact during examination under section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) while answering question No.4 it was stated that there was no confession. The confessional statement was recorded on 20.11.1992 and the statement under Section 313 of the Code was recorded on 6.2.1999. Therefore, there has been no retraction at any point of time. The position is also clear from Section 57 of the Code. At the time of production before the Magistrate, there was no allegation of any torture as presently submitted. In this connection a few decisions of this Court need to be noted.

8. In Kanhaiyalal v. Union of India (2008 (1) SCALE 165) at para 7 it was noted as follows:

9. Similarly in A.K. Mehaboob v. The Intelligence Officer, Narcotics Control Bueau (JT 2001 (1) SC 614) it was observed as follows: “4. Smt. Malini Poduval, learned counsel for the appellants contended that Exhibit P-8 cannot be relied on for more than one reason. One is that the said statement had been retracted by the accused himself. Second is that on 11.8.1994 appellant- Naushad informed the Magistrate in writing that the said statement had been coaxed out from him. The third is that the said retracted confession had no corroboration and therefore cannot be made the basis for conviction.

5. There is nothing to indicate that Exhibit P-8 had been elicited from A-2 by any coercion, threat or force and therefore the learned Single Judge of the High Court had spurned down that contention. Regarding the complaint alleged to have been made by appellant-Naushad on 11.3.1994 we have perused it. His case therein was that he offered himself to be a witness in the case and some reward was offered for it. It was on the said offers that he agreed to sign the said statement. It must be remembered that appellant-Naushad has no case that when he was produced before the Magistrate, immediately after his arrest, he made any grievance of any maltreatment administered to him by the members of the Narcotics Control Bureau. Wisdom downed on him (when the complaint dated 11.3.1994 was filed) to put up an advance defence against the statement given by him under his own signature. Even then he did not think it necessary to make any allegation that any intimidatory tactic, much less any third degree method had been applied on him. His case in the said complaint that a reward was offered to him and hence he agreed to sign the statement is contrary to the present stand adopted by him that he was coerced and threatened to made such a statement. The learned Single judge had rightly repelled the contentions made on behalf of appellant- Naushad relating to Exhibit P-8.”

10. The inferential conclusion that the articles seized might have been recovered by the father’s licence is a conclusion without any foundation and basis.

11. So far as the fulfillment of the requirement of Section 57 of the Act is concerned it is to be noted that the legal position was stated by this Court in T. Thomson v. State of Kerala and Anr. (2002 (9) SCC 618) and in State, NCT of Delhi v. Malvinder Singh (JT 2007 (9) SC 283). In Malvinder Singh’s case (supra) at para 6, it was observed as follows: “6. At this juncture, it would be relevant to take note of that has been stated by this Court in T. Thomson v. State of Kerala and Anr. At para 5 it was observed as follows: “5. Learned Senior counsel further argued that the record alleged to have been prepared by PW-1 on getting information regarding the movement of the appellants has not been produced in court. But he conceded that no motion was made on behalf of the appellants to call for the said record. There is no statutory requirement that such a record should be produced in the Court as a matter of course. We are, therefore, not disposed to upset the finding on that score either.”

12. So far as the applicability of Section 42 is concerned few decisions need to be noted.