K.S. Grewal, J.@mdashHuma Parveen (32), a house wife of Delhi, was convicted by the learned Addl. Sessions Judge-cum-Special Judge Amritsar on December 7, 2001 for offence under Sections 21 and 23 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (For short the Act) for having been found in possession of 5 kgs of heroin which she had illegally imported to India from Pakistan when she arrived at the Land Custom Station, Attari, Amritsar on December 17, 1998. She was sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1.00 lac for the possession of heroin, in default of payment of fine to further undergo rigorous imprisonment for 6 months. She was also sentenced to undergo rigorous imprisonment for 15 years for the illegal import of heroin into India and to pay a fine of Rs.1.00 lac and in default of payment of fine to further undergo rigorous imprisonment for 6 months. Both the sentences were directed to run concurrently. Huma Parveen has appealed to this court.
2. On December 16, 1998 secret information was received to the effect that one Huma Parveen would be arriving at Land Custom Station, Attari from Lahore by Samjhauta Express on December 17, 1998 with a consignment of approximately 5 kgs of heroin. This information was reduced into writing and is Ex. PA. The information was sent to higher authorities and in pursuance thereof a raiding party of intelligence officers of the Directorate of Revenue Intelligence, Regional Office, Amritsar was constituted consisting of Sanjay Sarpal (PW1), Charanjit Singh (PW2) and some others. The train arrived at platform No.2 at 3.00 PM. Huma Parveen was spotted by the party, she was allowed to go through the health and immigration checks. At about 7.30 PM when she was moving towards counter No. 12 for customs clearance along with her baggage, she was informed by the officials of the raiding party that they wanted to search her person as well as her baggage. She was also asked whether she was in possession of narcotic drugs. Huma Parveen was taken to PRO''s room on platform No.2 and the presence of two independent witnesses namely Simerjit Singh and Harjinder Singh was procured. The appellant was served notice u/s 50 of the Act and was informed that she had an opportunity to get her person and baggage searched either before a Magistrate or Gazetted Officer. The appellant replied in writing and consented to her search to be conducted in the presence of a Gazetted Officer. Thereafter, Mrs. G.K. Sethi, Superintendent, Central Excise, Amritsar (PW3) was called to the railway station. She reached the railway station at 8.30 PM and in her presence and also in the presence of two independent witnesses as well as Lady Constable Kashmir Kaur, Sanjay Sarpal (PWI) searched the appellant''s baggage. The appellant''s baggage consisted of four items. The first three items were a brown bag containing clothes and personal effects, a second bag containing ghee and dry fruits, a third packet/bundle containing bed sheets and a fourth package which was a cane basket. This basket contained a black purse, fresh fruits, some poppy seeds, some dry fruits, Rs.855 in Indian currency and Rs. 1021 in Pakistani currency. Under a bed sheet a packet was found which was wrapped with an adhesive tape. The packet opened and it revealed 5 smaller packets, four packets in white stitched cloth and the fifth in a plastic polythene pouch. All packets were opened and found to contain light brown coloured powder in granular form with a sharp pungent smell. Small quantities were taken out from each packet and tested with a detection kit. Each sample tested positive of heroin. Each packet contained 1 kg of the drug. The recovered substance, the material used for packing, the appellant''s passport, some visiting cards, cane basket and bed sheets used to wrap the cane basket were seized by Sanjay Sarpal under the provisions of Section 42 of the Act. The Panchnama Ex. PC (9 pages) was drawn up by Sanjay Sarpal and concluded at 4AM on December 18,1998. It was attested by Mrs. G.K. Sethi, Superintendent, Simerjit Singh and Harjinder Singh. It was counter signed by the appellant. The appellant made a voluntary statement before Sanjay Sarpal Ex. PE which was reduced into Hindi and signed by the appellant.
3. Consequent upon the recovery and seizure of the heroin, the appellant was arrested by Inspector Sarita, Inspector Customs on December 18, 1998 at 15.30 hours under Sections 21 and 23 of the Act. The appellant was also explained the grounds of her arrest. The arrest memo is Ex. PF. On personal search some money was recovered which was taken into possession vide memo Ex. PG.
4. Seizure report of the Heroine was sent on December 19,1998-to Director General, Narcotic Control Bureau, West Block, New Delhi, Director General, Directorate of Revenue Intelligence, JP Bhavan, New Delhi and the Deputy Director, Directorate of Revenue Intelligence (DZU), New Delhi. A summary of the brief facts of the case was annexed therewith as Annexure-A. The seizure report is Ex. PG and the summary is Ex. PH/1. The samples were sent for analysis to the Chief Chemist, Central Revenue Control Laboratory, IAR1, New Delhi vide Memo Ex. PJ. The report of the Chemical Examiner dated February 12, 1999 wherein it was opined that each of the five samples of brown coloured powder was found to contain Diacety lmorphine (heroin). Since the investigation revealed that Huma Parveen had prima facie committed offence under Sections 21 and 23 of the Act for possessing and importing into India narcotics without any legal document, complaint dated March 12, 1999 was presented before the learned Addl. Sessions Judge-cum-Special Judge, Amritsar.
5. On appearance Huma Parveen was charged under Sections 21 and 23 of the Act on June 1, 1999. The charge was read over and explained to her in simple Punjabi, which she fully understood and to which she pleaded not guilty and claimed to be tried.
6. The prosecution examined Sanjay Sarpal (PW1), Charanjit Singh (PW2), Mrs. G.K. Sethi (PW3) and Suresh Kumar (PW4). The appellant was examined without oath u/s 313 Cr.P.C. Various circumstances which had appeared in evidence against her were put to her. She denied every thing and stated that case was a false one and the witnesses had deposed against her because they were official witnesses. She pleaded innocence and stated that she would file a written statement but no written statement was filed by her. The learned Judge came to the conclusion that secret information had been received and reduced into writing which was a genuine document. It was also found that the provisions of Section 50 of the Act had been fully complied with. Lastly, the appellant''s statement had been recorded u/s 67 of the Act on December 18, 1998 and she was produced before the learned Magistrate on the same day. The appellant was found guilty, convicted and sentenced as described above.
7. The learned counsel for the appellant argued that the very genesis of the case was shaky as the secret information by Sanjay Sarpal (PW 1) was so received at the Amritsar Office of the Directorate of Revenue Intelligence from its Delhi Office on December 16, 1998 at 3 PM and that Sanjay Sarpal had been briefed about this message by his senior officer Charanjit Singh (PW2). As per the TA/DA bill of Charanjit Singh (PW2) he was on his way from Delhi at that time on December 16,1998 and therefore, it was not possible for him to receive the fax at 3 PM and brief Sanjay Sarpal. Furthermore, if Ex. PA was fax message then how was it that original signatures of AP Parshad and KP Singh appeared on it. According to the counsel this showed that the document Ex. PA whereby the secret information had been reduced into writing was a fabricated document and the starting point of the case was extremely weak. Challenge was also made to the non-compliance of the provisions of Section 50 of the Act and also to the fact that the appellant was produced before the Magistrate on December 18, 1998 whereas she had been apprehended at 3 PM on December 17 and the recovery from her had also been made by 8 PM. Since the appellant had been detained in custody for more than 24 hours before being produced before the Magistrate, the prosecution case was rendered doubtful.
8. At the out-set the three contentions of the appellant''s counsel may be considered. Section 42 requires that if an officer of the Department of Revenue Intelligence (the relevant department in the present case) has reason to believe from personal knowledge or information given by any person and taken in writing that any narcotic drug in respect of which an offence has been committed then he may detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence (reference is made to Section 42(1)(d). Furthermore, where an officer takes down any information in writing or grounds for his belief he shall within seventy-two hours send a copy thereof to his immediate superior (reference is made to Section 42(2) of the Act).
9. Mow let us examine Ex. PA in conjunction what the witnesses deposed. Sanjay Sarpal was examined as PW 1 and testified that on December 16, 1998 he received secret information from the Delhi Headquarters. He identified the signatures of AK Parshad and KP Singh on Ex. PA. On receipt of this information he organised a party consisting of among others, Charanjit Singh (PW 2) and proceeded to Attari Railway Station on the following day where they kept surveillance at platform No.2. To the similar effect was the statement of Charanjit Singh (PW2). On cross-examination Sanjay Sarpal admitted that he had received the information from Charanjit Singh on December 16, 1998 at about 6/ 6.30 PM and that he had been orally briefed. Ex. PA had also been shown to him but this document did not bear Charanjit Singh''s signatures. It reached the office on December 16, 1998 and was received by fax. He further admitted that signatures on Ex. PA were original and the writing of the main body Ex. PA was also original.
10. When Charanjit Singh (PW2) was cross-examined he stated that he received the secret information on December 16, 1998 at 3 PM in his office and action was to be taken on the information on December 17,1998. He further stated that a file was opened and the secret information was reduced into writing in that file. However, he went on to state that Ex. PA was that document and it was a fax message. This document was in the hand writing of AK. Parshad and no intimation was sent to any police officer or the Magistrate. There was no note on Ex. PA that the documents had been received by fax at 3 PM on December 16, 1998. Document Ex. PA deserves to be closely examined. It is entitled "Secret Information Report" and it is recited therein that information had been received that one Huma Parveen would be arriving as LCS, Attari from Lahore by Samjhauta Express with a consignment of 5 Kgs of heroin on December 17,1998 and that urgent necessary action may be taken to intercept her on arrival and effect the seizure of the contraband. One thing is absolutely clear that the document Ex. PA is the original hand written document and not a fax message at all. It is not understood why both Charanjit Singh (PW2) and Sanjay Sarpal (PVV1) have been insisting that the secret information had been received by fax. No fax has been relied upon by the prosecution nor placed on record. Why then are these officers harping upon the secret fax message when there is none. The defence had challenged the prosecution version by leading evidence of TA bill of. Charanjit Singh, Senior Intelligence Officer, DRI (RU) Amritsar for journeys performed between October and December 1998. The bill is Ex. DC and therein three entries pertain to December 16, the first is regarding departure at 05.00 hours from Amritsar to Delhi, time of arrival being 11.15 hours. Charanjit Singh travelled by Shatabadi Express, covered distance of 488 kms and paid Rs.510/- as fare. The second entry relates to journey by auto from railway station to DRI (DZU) and back to railway station. Journey commenced at 11.15 hours concluded at 16.15 hours by Shatabadi Express and arrival at Amritsar was at 22.20 hours. When and under what circumstances did Charanjit Singh convey the secret information to Sanjay Sarpal even if it was conveyed personally and not by fax. The fax is not forthcoming and Charanjit Singh could not have conveyed it personally by showing him Ex. PA because he reached Amritsar only at 10.20 PM on December 16. Charanjit Singh was recalled for cross-examination and admitted that he had gone to Delhi by Shatabadi that Ex. DC was correct. Consequently, the very starting point of the case appears to be ramshackle and hollow. The question which arises for consideration is whether the prosecution case has been also shattered in the process.
11. Before embarking upon the above inquiry it would be appropriate to examine the circumstances under which the search of appellant''s person and baggage was carried out in order to determined whether a valid search under Seetion"50 of the Act can defeat an invalid detention and search u/s 42 of the Act. The appellant''s passport is Ex. PI and it shows that she was issued a Pakistani visa on November 6, 1998 by the Pakistan High Commission at New Delhi. She exist from Attari on December 14, 1998 and entered Attari on December 17, 1998. According to Sanjay Sarpal the party consisting of himself and Charanjit Singh etc. were present at Attari railway station and keeping a surveillance on platform No.2. The appellant arrived at the Attari station from Pakistani by Samjhauta Express. The appellant was kept under surveillance. After she had cleared health and immigration formalities and was proceeding towards customs clearance the raiding party apprehended her. The time was 7.30 PM. Sanjay Sarpal (PW1) took the appellant to a room situated on platform No.2. At that time two independent witnesses namely Simerjit Singh and Harjinder Singh were also called there. The appellant was asked whether she wanted her personal search as well as baggage search conducted in the presence of a Gazetted Officer or a Magistrate. She was given this offer in writing vide Ex. PB. The document was signed by the appellant in token of its receipt. Thereafter, the appellant signed her endorsement to the effect that she had been explained the above notice twice in Hindi and she had full faith on the officers of the DRI and was ready for search of her person and baggage by any Gazetted Officer. The appellant was then informed that Mrs. G.K. Sethi, Superintendent, Customs was a Gazetted Officer and would she like to get her search before her, to which she again replied that she desired that she herself and her baggage be got searched before Mrs. G.K. Sethi.
12. Mrs. G.K. Sethi was examined as PW3 and testified that she received a telephonic message from the railway station at 7.30 PM and reached the station at 8.30 PM. She went to the PRO room of platform No.2 and found Charanjit Singh, Sanjay Sarpal and other officers of DRI present there along with a lady Constable Kashmir Kaur and Harjinder Singh. The appellant was also present with them. In the presence of Mrs. G.K. Sethi the offer was made by Sanjay Sarpal to the appellant for her search and the appellant agreed for the search. It may be noted here that after consent memo Ex. PB had been completed, all the men left the room. According to Sanjay Sarpal the personal search of the appellant was conducted by Mrs. G.K. Sethi and Kashmir Kaur. The men entered the room after 10 minutes and were informed by Ms. G.K. Sethi that no incriminating item had been recovered from the personal search. Surprisingly, Mrs. G.K. Sethi does not at all testify that she carried out any personal search but nothing would turn on this omission as the search had been a futile one. From the above it appears that all the conditions under which search of persons is conducted as per Section 50 of the Act had been complied with. The personal search of the appellant had been conducted by Mrs. G.K. Sethi as testified by Sanjay Sarpal though not by Mrs. G.K. Sethi and also in the presence of Simerjit Singh and Harjinder Singh. Recovery memo/panchnama Ex. PC running into nine pages drawn by Sanjay Sarpal in his own hand writing at 4 AM on December 19, 1998 shows that it had been counter signed by Ms. G.K. Sethi, Simerjit Singh, Harjinder Singh and also by the appellant, who was given a copy thereof.
13. The main question to be considered in this case is whether the conviction was valid even if the secret information had not been properly reduced into writing and received by Sanjay Sarpal (PWI). As regard personal search of the appellant, the provisions of Section 50 of the Act had been substantially complied with though not specifically testified by Mrs. G.K. Sethi (PW3). However, since no recovery had been made on the personal search of the appellant, the validity or otherwise of this search would only be of academic importance. Reduction of secret information into writing and the consequent detention and search of the appellant''s baggage on its basis is what really concern us. The raiding party was present at the railway station when the train arrived from Lahore at about 2.30/3 PM. The party consisted of Sanjay Sarpal who was posted as intelligence Officer with the Directorate of Revenue Intelligence, Amritsar. It may be noted that Charanjit Singh (PW2) was also a member of the raiding party and was posted with the Directorate of Revenue Intelligence, Amritsar as Senior Intelligence Officer. He had acted on secret information received from Delhi Headquarters. The party had reached the railway station at 1 PM and on arrival of the train kept surveillance on the passengers who alighted from the train. The party spotted the appellant and detained her only after she had cleared health and immigration checks. Sanjay Sarpal told the appellant that they wanted to search her baggage and also conduct her personal search. The appellant was taken to the PRO''s room along with her baggage. Two independent witnesses, Simerjit Singh and Harjinder Singh, were also joined. Mrs. G.K. Sethi (PW3) Superintendent, Central Excise, Statistical Intelligence, Amritsar was telephonically asked to come to the railway station at about 7.30 PM. Mrs. G.K. Sethi reached at 8.30 PM. The appellant''s baggage was searched by Sanjay Sarpal in the presence of Mrs. G.K. Sethi and the two independent witnesses Simerjit Singh and Harjinder Singh. The baggage was consisted of four bags, the fourth bag was a cane basket which contained a black purse, passport, visiting cards, some Indian and Pakistani currency, ghee, poppy seeds and trait. Underneath all these items was a green checked cloth and underneath this cloth were the five packets containing 1 kg each heroin. The seizure memo/panchnama is Ex. PC.
14. The investigating officer took out the samples from each of the packets and tested them at the spot with a detection kit. Each sample tested positive for heroin. The samples were later sent for detailed analysis by the Central Revenue Control Laboratory and each showed presence of Diacetylmorphine varying from 9.8% to 11.9% in the first four packets put in the fifth the percentage was as high as 56.7%. The reports are Exs. PD and PK.
15. Sanjay Sarpal also recorded the statement of the appellant u/s 67 of the Act, which is Ex. PE. In the statement the appellant described her family background and antecedents, her trip to Pakistan leaving Attari by Samjhauta Express on December 14, 1998, stay with her cousin in Lahore and returning to India by the same train on December 17, 1998. She stated that one Mohd. Abrar contact her in Lahore and asked her to return to India on December 17. He also told her that he would meet her at the Wagha station and would give her something to take. back for Mohd. Liak in India. When the appellant reached the station she came across Mohd. Abrar who handed over to her a cane basket and also told her to hand over the goods to Mohd. Liak in Delhi and for this she would receive Rs.1.00 lac. Although Mohd. Abrar had not told the appellant what was contained in the basket but after he left the basket with her she thought to herself that if Mohd. Liak is going to give her Rs. 1.00 lac then the basket must be full of something illegal but she did not know what she should do. She further stated that when she disembarked at Attari she did have some fear of what would come out of the basket and it was only when the basket was searched that she realised what it contained.
16. The prosecution had succeeded in established that 5 kgs of heroin was recovered from the possession of the appellant. Thereafter, the appellant was arrested and detailed information regarding the recovery was sent to the senior officers vide report Ex. PH. On December 19, the five original samples were sent to the office of Central Revenue Control Laboratory, New Delhi with a covering letter Ex. PG signed by Charanjit Singh. These packets were carried by Sanjay Sarpal along with memo Ex. PD and deposited intact on December 21. The prosecution had also examined Inspector Suresh Kumar (PW4) who was incharge of malkhana of Customs at Amritsar, who testified as regards deposit of the case property consisting of the bulk of the recovery along with the five samples. The chain of circumstances is complete in every respect. The appellant''s detention and search had been conducted by a duly authorised officer of the Directorate of Revenue Intelligence namely Sanjay Sarpal (PW1). Search had been in the presence of Mrs. G.K. Sethi, Superintendent, Central Excise, Amritsar who appeared as PW3. The two independent witnesses were not examined but this would not have any material bearing on the case as there is nothing to show that the appellant has been falsely implicated or the recovery has been foisted upon her. The provisions of Sections 42, 50, 57 and 67 of the Act have been fully complied with. The prosecution had succeeded in establishing that the appellant reached Land Custom Station, Attari after having boarded Samjhauta Express. The appellant''s personal search did not reveal any incriminating but search of her baggage revealed her passport as well as other articles including 5 kgs of heroin. The investigating officer had acted on secret information which was conveyed to him by fax. The original report is Ex. PA but the fax message has been withheld for reasons best known to the prosecution. However, withholding of this would not have any material bearing on the prosecution case because detention and search has been conducted in accordance with law on the basis of information received from Intelligence Officers of Delhi. The officer had acted on the basis of secret information, failure to place on record a copy of the message contained that information is not a fatal flaw because Section 68 of the Act allows an officer to refuse to disclose from where he got information as to the commission of any offence. Sanjay Sarpal (PW1) was exercising powers vested in him and acted on the basis of some information. Therefore, the protection of Section 68 of the Act would be available in this case. He cannot be compelled to disclose how and in what manner he got the information. The explanation of the witness that he was conveyed the information by Charanjit Singh (PW 2) and this explanation has not been found to be false although the medium of fax has not been established. The prosecution would still be protected from giving any more details of how and in what manner Charanjit Singh gave the information to Sanjay Sarpal. Failure to place the fax message on record would not tantamount to failure of the entire prosecution case.
17. Consequently, the appeal is found to be without merit and the order of conviction of the appellant is hereby uphold. However, the appellant is a young woman of 31 and a house wife, she has a son and three daughters, she had gone to Lahore on a short trip and as per her own statement she was handed over the basket containing the heroin at the Wagha railway station on the promise that on delivery of this basket she would receive Rs. 1.00 lac. The appellant had acted as a courier and does not appear to be member of an organised gang of, heroin smugglers.
18. In the circumstances of the case, sentence of 15 years on both counts appears to be a bit on the higher side. Ends of justice would be amply served if the sentence is reduced from 15 years to 10 years both u/s 21 and 23 of the Act. Substantive sentences shall run concurrently. Sentences of fine shall remain as imposed by the learned Special Judge, Amritsar.
Resultantly, appeal is dismissed with the above modification in the quantum of sentence while conviction is maintained.
