Virender Singh, J.@mdashBy this judgment, we dispose of four criminal appeals i.e. Criminal Appeal No.658-DB of 2001, Mohinder Singh alias Minda and Avtar Singh versus Inspector Customs, Customs Division, Amritsar, Criminal Appeal No.664-DB of 2001 Ravinder Kumar and Avinash Kumar Sharma versus Inspector Customs, customs Division, Amritsar, Criminal Appeal No.68I-DB of 2001 Harjinder Singh alias Jinda versus Inspector Customs, Customs Division, Amritsar and Criminal Appeal No.47-DB of 2002 Manjit Kaur and Ajaib Singh versus Inspector Customs, Custom Division, Amritsar as all these four appeals have arisen from a common judgment and order dated 11.10.2001 passed by Judge, Special Court, Amritsar In all these four appeals, there are seven appellants in all. They have been convicted and sentenced under different sections of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as ''the Act'') as under:-
Avinash Kumar Sharma U/s 22 and 29 of the Act To undergo RI for 20 years with a fine of Rs.1 lakh. In default of payment of fine to further undergo RI for three years on both the counts.
Mohinder Singh alias Minda, Avtar Singh, Harjinder Singh and Ravinder Kumar alias Happy U/s 22 of the Act To undergo RI for 15 years each with a fine of Rs. 1 lakh each. In default of payment of fine to further undergo RI for three years each.
Mohinder Singh alias Minda, Avtar Singh, Harjinder U/s 29 of the Act To undergo RI for 15 years each with a fine of Rs.1 lakh each. In default of payment of fine to further undergo RI for three years each.
Singh and Ravinder Kumar alias Happy
Ajaib Singh U/s 22 of the Act To undergo RI for 15 years with a fine of Rs. 1 lakh. In default of payment of fine to further undergo RI for three years.
Manjit Kaur U/s 22 of the Act To undergo RI for 10 years with a fine of Rs. 1 lakh.In default of payment of fine to further undergo RI for three years.
2. All the sentences have been, however, ordered to run concurrently.
3. The recovery in this cape is of 50 packets of brown sugar (heroin) worth crores of rupees. The contraband was initially concealed in the house of Ajaib Singh of village Malikpur falling on India-Pak border. Before the trafficking could retrieve heroin, a raid was conducted by the customs Department and the contraband was allegedly recovered from the house of Ajaib Singh. Thereafter the Custom Department could probe deeply into it and come to know the nefarious designs of smuggling of heroin into India by busting the racket.
4. All the appellants in this case have been booked in a complaint Ex. PYY tiled by (PWI) Rameshwar Singh Inspector Customs, u/s 135-A of Customs Act, 1962.
5. The investigation starts in this case when on 11.2.1997, Rameshwar Singh Inspector PWI received a secret information at 4.30 PM in his office at Amritsar about the heroin concealed in the house of Ajaib Singh. Higher officers regarding secret information were informed and a raiding party was arranged consisting of custom officials and the Punjab Police. V.K. Mahajan Superintendent Customs, Ajit Bhatia PW2 Superintendent Customs, PWI Rameshwar Singh Inspector, R.S. Mann Inspector and other custom officials were from side of Custom Department whereas Rajbir Singh SI/ SHO of Police Station Ramdas was heading the police party. Mohan Singh and Feroze Masih were also joined as independent witnesses in the raiding party. It immediately raided the house of Ajaib Singh appellant in village Malikpur. Ajaib Singh appellant was not in the house at that time but his wife Manjit Kaur appellant was present in the house. Ajit Bhatia, Superintendent, Customs, (PW2) disclosed his identity to appellant Manjit Kaur and told her their purpose of the raid and asked her as to whether she wanted to be searched in the presence of a Gazetted Officer, or she wanted search to be conducted in the present of a Magistrate and disclosed her that he himself was a Gazetted Officer. Manjit Kaur appellant, offered to be searched before a Gazetted Officer. In this respect a consent memo Ex. PA was reduced into writing which was duly thumb marked by Manjit Kaur appellant and attested by Mohan Singh and Feroz Masih, the independent witnesses. Ajit Bhatia, (PW2) SI Rajbir Singh and HC Swaran Kaur then conducted the search of appellant Manjit Kaur. Search of the house was also conducted and during the search of the house, two bags of plastic were found from under the wheat straw in the Verandah of the house of Ajaib Singh appellant and each bag contained twenty five packets. Thus 50 packets in all. It was containing brown powder and white granules. Out of 50 packets, 40 packets were containing brown powder while ten packets were crystal white powder. It was heroin. Ten packets were having no mark, while twenty packets were having marking KSN and the remaining twenty were having marking KSNMIL 080. All the packets were unpacked and weighed. The contents of all the packets were tested with drug testing kit which gave positive narcotic contents of heroin. Gross weight of all these packets after weighment came to be 51200 kgs and the net weight was 50 kgs. All these packets were given numbering 1 to 50. Five lots were made often packets each. Three samples each weighing 10 grams were taken out from each lot. The samples were sealed with seal No.84 of Customs Division under the signatures of Inspector Rameshwar Singh PW1 and thumb impression of Manjit Kaur appellant. The remaining quantity of brown and white powder was sealed in the same packets and all the 50 packets were repacked in the same plastic bags i.e. 25 packets each in the bags (two bags). Those were also sealed with seal of Customs Department No.84 under the signatures of Rameshwar Singh PW1 and duly thumb marked by Manjit Kaur appellant. The above said two independent witnesses also signed the memos. The weighment sheet Ex. PB was also prepared at the spot by the Seizing Officer and attested by the PWs which was also thumb marked by Manjit Kaur appellant The other necessary formalities were also done at the spot. Arrest memo and seizure were given to Manjit Kaur appellant. Test memo Ex. PH was prepared at the spot. Seal after its use was handed over to be competent authority of the Customs Department. Manjit Kaur appellant could not produce any voucher, bill or any other legal document for keeping the heroin, which was seized u/s 10 of the Customs Act, 1962 read with provisions of the NDPS At. Special report u/s 57 of the Act, giving the details of the recovery was also sent to the senior officers at the earliest.
6. The investigation further reveals that Manjit Kaur appellant gave her statement on 11.2.1997 before Superintendent Customs without any threat, duress or coercion admitting recovery of brown powder and white granules. It was admitted by her that the aforesaid 50 packets contained in two plastic bags (25 packet in each bag) were recovered from the wheat straw in the Verandah of her house. Appellant Manjit Kaur also admitted in her statement that her husband Ajaib Singh had brought that contraband and it was concealed in her statement that her husband Ajaib Singh had brought that contraband and it was concealed in the wheat straw lying in the verandah. Manjit Kaur was thereafter produced before the Duty Magistrate on 12.2.1997 alongwith case property. The case property was put in steel trunk as per directions of the court and was locked and sealed with the seal No.84 of Customs Department, Division Amritsar. The same was thereafter deposited with the Incharge of Malkhana vide inventory No. 1/97 dated 13.2.1997 (Ex. PK). All the 15 samples duly sealed were also deposited with R.K. Sarin, (PW4) Incharge, Malkhana vide inventory No.2/93 dated 13.2.97.
7. Statements of Manjit Kaur appellant were also recorded on 13.2.1997 and 14.2.97 (Ex. PM and PN respectively) duly thumb marked by her. These statements were recorded in the presence of Mr. Ajit Bhatia. In her statement dated 14.2.97 (Ex. PN) Manjit Kaur appellant admitted that three persons came to meet her husband Ajaib Singh on 11.2.1997 and when she enquired from her husband Ajaib Singh about them, he told her that out of these three, he knew Avinash Kumar Sharma (appellant) only. It is thereafter only statements of Ajaib Singh-appellant were recorded on 16.2.97, 21.2.97 and 23.2.97 (Ex. PO, PQ and PR respectively) u/s 108 of Customs Act, which were read over and explained to Ajaib Singh Appellant and he signed the same admitting to be correct. From these statements it revealed to the Customs authorities that Ajaib Singh appellant and he signed the same admitting to be correct. From these statements it was revealed to the Customs authorities that Ajaib Singh appellant had brought the heroin from his sugar-cane field and kept it with him. It further revealed that out of the persons mentioned above one was Avinash Kumar Sharma appellant and two other persons whose name Ajaib Singh did not know had visited him on 11.2.97 at his house. Ajaib Singh appellant lateron had come to know the names of other persons to be Ravinder Kumar and Avatar Singh (appellants). He further disclosed that Avtar Singh had paid him a sum of Rs. 10,000/- and told him that the heroin belonged to them and they would take it back. On 17.2.1997 on the basis of search warrants, a raid was conducted in the house of Ajaib Singh appellant and a sum of Rs. 10,000/- was also recovered from there. The search warrant Ex. PS was signed by Rajesh Sodhi, Assistant Commissioner Customs. Ex. PT is the panchnama dated 17.2.1997 signed by Ajaib Singh appellant and attested by Ajit Bhatia and Rameshwar Singh PWs. Ajaib Singh appellant was then formally arrested in this case on 17.2.97 vide arrest memo Ex. PV.
8. It is then the case of the prosecution that on 19.2.97, statement of Ravinder Kumar appellant Ex. PY was recorded by Sh. R.S. Mann in the presence of V.K. Mahajan, superintendent in which Ravinder Kumar appellant had admitted that Harjinder Singh alias Jinda and Mohinder Singh alias Mindawere his associates and they had placed the consignment of 50 packets of heroin in the fields of Ajaib Singh appellant. The packets were brought by them from Pakistan. He also admitted that Ravinder Kumar, Avinash Kumar and Avtar Singh appellants had gone to the house of Ajaib Singh and they had paid Rs.10,000/- for the return of 50 packets of heroin. He was also arrested vide arrest memo. Ex. PZ dated 19.2.97.
9. Thereafter, statement of Mohinder Singh appellant was recorded on 23.3.97 which is Ex. PBB. It was thumb marked by him after admitting it to be correct. He also made another statement on 24.3.97 admitting his active involvement in the transaction of 50 packets. He was also formally arrested vide arrest memo Ex. PEE.
10. The Customs Authorities then recorded the statements of Avinash Kumar Sharma on 11.4.97 and 14.4.97. (Ex. PFF and PGG respectively). These statements are signed by him in token of its correctness. In his statements, he projected himself as kingpin who had brought this consignment of 50 packets from across the border. It is further admitted by him that Ravinder Kumar, Mohinder Singh and Harjinder Singh had concealed this consignment in the sugar-cane field of Ajaib Singh. He further disclosed that this consignment was to be taken to Delhi and was to be delivered in exchange of dollars. Avinash Kumar appellant also confessed that in this consignment he had paid Rs.80,000/ - to Harjinder Singh and Mohinder Singh appellants each, Rs30,000/- to Ravinder Kumar appellant and Rs. 1 lakh to Avtar Singh appellant. It was also admitted that they had already smuggled four consignments of heroin including the present one. The factum of giving Rs. 10,000/- to Ajaib Singh appellant for the return of the Heroin was also admitted. His arrest memo Ex. PHH was prepared after formally arresting him.
11. Statements of Avtar Singh were also recorded on 11.4.97, 15.4.97 and 17.4.97 which are Ex. PKK, PLL and PMM. He has also admitted his involvement in the transportation of the contraband (heroin) in the same terms as admitted by his co-accused. Avtar Singh appellant was also arrested vide arrest memo Ex. POO.
12. The samples which were kept intact with Shri R.K. Sarin PW4 (lncharge Malkhana) were sent to the Chemical Examiner on 18.2.97 for analysis, and the report of the Chemical Examiner, Ex. PXX shows positive test for diacital morphine (heroin). Hence the complaint.
13. After the committal proceedings, the learned Special Judge, Amritsar charged the appellants under Sections 22 and 29 of the Act.
14. The prosecution in order to bring home guilt to the appellants has examined Rameshwar Singh, Inspector Customs as PW1, Ajit Bhatia, Superintendent Customs as PW2, Surjit Singh Superintendent Customs PW3 and R.K. Sarin, Superintendent Customs as PW4.
15. Rameshwar Singh Inspector PW1 has reiterated whatever he has asserted in the complaint Ex.PYY and the same has already been reflected by us in the preceding paras. However, we shall be discussing his statement at the relevant juncture also.
16. Ajit Bhatia has been examined as PW2 and his evidence is also to the same effect.
17. Surjit Singh Superintendent Customs (PW3) has stated that on 17.2.97 he had received five sealed representative samples duly sealed by the Customs Division, Amritsar. Each sample was of 10 grams and Rameshwar Singh PWI had taken the same from R.K. Sarin, lncharge Malkhana Customs. It was given to him with a test memo and authority letter for depositing the same with Central Revenue Control Laboratory on 18.2.97 and had obtained a receipt as well.
18. R.K. Sarin, Superintendent, Central Excise Division, has been examined as PW4 and his statement is to the effect that on 13.2.97, Rameshwar Singh Inspector PW1 had deposited with him one locked and sealed trunk duly sealed with seal No.84 of Custom Division, Amritsar containing two plastic bags. This was deposited with him vide inventory No.N-N/1 -97 dated 13.2.97. He has further stated that five representative samples duly sealed also deposited with him and the samples were taken out on 17.2.97 with all the seals intact bearing mark No.84 of Customs Division, Amritsar and the same were handed over to Surjit Inspector for sending to the Laboratory.
19. The prosecution has given up V.K. Mahajan, Supdt. Charanjit Kaur, SI/SHO Rajbir Singh and Swaran Kaur HC as unnecessary whereas Mohan Singh and Feroze Masih, as having been won over by the accused.
20. The stand of the appellants as emerges from their statements u/s 313 Cr.P.C. is that they have pleaded innocence and false implication in this case. In their defence on ASI Gurmej Dass was examined and he has stated that the copy of FIR Ex. DI bearing No. 13/97 of police stat6ion Ramdas was registered and thereafter cancelled on 24.3.97. This FIR is in connection with the. present recovery. Surjit Singh father of Ajaib Singh appellant was also produced as defence witness and he deposed that the contraband was recovered from their fields which is located near the Indo-Pak border and nothing was recovered from their house. Amrik Singh Sarpanch was also examined in defence and his statement is to the effect that on 11.2.97, Customs and police officials had come to their village and apprehended appellant Manjit Kaur and nothing was recovered from their house.
21. On consideration of entire evidence, the learned Special Judge (trial Court) has convicted and sentenced all the appellants as indicated above. Aggrieved by the impugned judgment of conviction and sentence they have knocked the doors of this court by way of present appeal.
22. We have heard Mr. R.S Ghai, Senior Advocate, Mr. A.S. Sandhu, Advocate, Mr. D.S. Walia, Advocate and Mr. Ranjit Sharma, Advocate, the learned counsel in all the four appeals, Union of India is being represented by its Standing Counsel Ms. Ranjna Shahi, Advocate and with the assistance of learned counsel for both the sides we have also gone through the entire record.
23. To start with the arguments, Mr. D.S. Walia who is appearing on behalf of Manjit Kaur and Ajaib Singh appellants (Appeal No.47-DB of 2002) had vehemently contended that no case is made out against these two appellants. Advancing his arguments, Mr. Walia submitted that the statements of Manjit Karu and Ajaib Singh appellants recorded by the Customs Authorities are not voluntary and that those were under the duress and coercion: Recovery of Rs. 10,000/- by the Customs Authorities from the house of Ajaib Singh appellant is also a crude padding, Mr. Walia has made an endeavour to segregate the case of Manjit Kaur appellant. He submits that Manjit Kaur appellant at least cannot be connected with the conscious possession of the alleged recovery of the contraband because it has not been recovered at her instance. The heroin was lying under the wheat straw in the verandah of the house which was owned by the other family members as well. He then contends that even if Manjit Kaur appellant had signed certain papers, this act by itself would not be enough to fasten the liability on Manjit Kaur and as such her case is distinguishable from Ajaib Singh her husband. Mr. Walia then reverting back to his arguments on behalf of both the appellants submitted that it was a case of house search and non-compliance of provisions of Section 104(4) of Cr.P.C. dents the recovery because the two witnesses of the recovery namely Mohan Singh and Feroze Massih have not come forward to support the case of the prosecution and for this basis lacuna both Manjit Kaur and Ajaib Singh appellants deserves acquittal.
24. Mr. R.S. Ghai, learned Senior Advocate although representing Mohinder Singh and Avtar Singh appellants in criminal appeal No.658-DB of 2001 has taken the reins on behalf of all the remaining five appellants and has strenuously argued that the statements of all these appellants recorded u/s 108 of Customs Act are farce. Colouring his arguments he further submitted that even if the statement recorded u/s 108 of the Customs Act is admissible in evidence but it cannot be treated as Substantive piece of evidence against the accused and in the present case, the prosecution has otherwise no substantive evidence showing the nexus of the present five appellants with the alleged recovery of contraband. According to Mr. Ghai, the learned Senior Advocate, the statement recorded by the Customs Officials is at the most is statement of the accused against co-accused and it cannot be termed as substantive piece of evidence u/s 30 of the Indian Evidence Act within the meaning of Section 3 of the said Act because all these statements are not corroborated by any other piece of evidence and as such cannot be made the basis of the conviction. In support of this arguments, Mr. Ghai has relied upon a judgment of this Court rendered in Tarlochan Singh v. The Assistant Commissioner, Customs 2003(1) RCR Criminal 47.
25. Mr. Ghai further challenging the confessional statements of the appellants recorded u/s 108 of the Customs Act has submitted that these statements are not at all made voluntarily because the appellants were in the custody of Customs Officials and they in order to complete the chain had been pressurising the appellants to depose against each other showing the involvement of everybody in the present recovery. Mr. Ghai also contended that some of these statements cannot otherwise be used against the appellants because the persons who wrote these statements cannot otherwise be used against the appellants because the persons who wrote these statements have not been examined. Summing up his arguments the learned Senior Advocate submits that the case of the prosecution has failed to bring home the guilt to the present appellants for the charges framed against them and the deserve acquittal.
26. Mr. A.S. Sandhu and Mr. Ranjit Sharma, have also toed the line of arguments advanced by Mr. Ghai, Senior Advocate.
27. Lastly in the alternative it has been argued that the sentence awarded by the trial court is too harsh and the appellants deserved reduction in the quantum of sentence.
28. On the other hand Ms. Ranjna Shahi, learned counsel representing the Union of India has submitted that there is nothing on record to show that the statements of the appellants are the result of any duress, influence or coercion and the statements which were recorded u/s 108 of the Customs Act or u/s 67 of the Act are admissible and can be read against the appellants to earn the conviction. It is further submitted that in the present case huge quantity of heroin has been recovered and the Customs authorities have ultimately nabbed a big gang indulging into this trade. The conviction as recorded by the trial Court of all the appellants be not disturbed, it is so submitted by Ms. Shahi.
29. We will first of all deal with the appeal filed by Manjit Kaur and Ajaib Singh appellants. In our view, the case of Manjit Kaur is separable from his husband Ajaib Singh who in fact was in conscious possession of contraband (Heroin). We have seen all the three statements of Manjit Kaur Ex. PE, Ex. PM and Ex. PN very minutely. Ex. PE is dated 11.2.97. In this statement she talks of the raid and the recovery effected in her presence from the Verandah of the house. She has also signed that statement. The relevant portion of her Vernacular statement Ex. PE when rendered into English translation reads as under:-
"xxx xxx xxx
On enquiring I, state that these two bags were brought by my husband Ajaib Singh and he himself cpncealed them in the wheat chaff. 1 do not know from where he brought and whom to be delivered. My husband Ajaib Singh knew about this all and only he can tell about this.
xxxxxxxxx"
30. Now we switch over to Ex. PM dated 13.2.1997, the second statement to Manjit Kaur. The relevant portion is reproduced as under:-
''"xxxxxxxxx
My husband Ajaib Singh is serving as Driver in the J.S. Bajwa Transport Company Delhi. He comes to village once or twice in a month or two months. Owner of the Transport company belongs to Batala and owners name is Jassa. Jassa came to our house last year and 1 identified him. Only my husband Ajaib Singh knew about these two bags and he himself brought them home from his sugar-cane fields. 1 do not know about these articles from where he brought and whom to be delivered. My husband had gone to some relative to bring Tractor and Trolley for loading the Sugarcane and want to sell the same in the Sugar Mill. I have two daughters aged about 12-14 years and their names are Inderjitand Paramjit. I have one son named Jagpreet. On enquiry again stated that only my husband Ajaib Singh knew about the case who would appear before you today.
xxxxxxxxx"
31. The third and the last statement is Ex. PN dated 14.2.97. The relevant portion from his statement is also reproducing as under:-
"xxx xxxxxxx
I continue my statement dated 13.2.1997 and today i.e. 14.2.97 and on enquiry 1 state that on 10.2.1997 Dalip Singh @Gura who was to shave our sugar-cane, came to our house at about 4 P.M. and met my husband Ajaib Singh and told him that two bags are lying in our Sugar-cane field. I don''t know what was in them. He also told that the had told about this to my father-in-law Surjit Singh, but he said that he may tell Ajaib Singh about these bags. After this my husband Ajaib Singh went to the fields on a Cycle and came back carrying the above said bags on the Cycle. On bringing home these two bags, my husband put them under the wheat chaff lying in the brandha. After this my husband met my father-in-law Surjit Singh and told him that he had brought the two bags and he did not know what was lying in it. My husband told me that my, father-in-law said to him that it does not matter, they will enquire the matter as to whom those bags belonged and would deliver the same. If nothing comes out he will report to the police. On further enquiry I state that next date on 11.2.97 in the morning at about 7-8 p.m. three persons with mufflered faces wrapped with the shawl (Loi) came near our main gate on a Two Scooters. Then they came inside the house and sat near by my husband who also sitting on the bed at that time and returned on the scooters after talking for some time. After they returned I enquired from my husband who they were and he answered one of them was brother of Dr. Jog Raj Fouji and they were talking that they are the owners of the said two bags which he had brought from the Sugar-cane fields and they further told that they should not disclose any body about the bags and they will take them back to night and if is disclosed to anybody about the said bags they will kill his family. In continuation of my statement it is stated that on 11.2.1997 there was dispute in the village between the two parties. My husband Ajaib Singh and my father-in-law Surjit Singh remained busy whole of the day alongwith their respectable persons of the village to settle the dispute. Because of that my husband did not disclose anybody about the said two bags and about the three men. In the evening at about 4.30 p.m. Police along with customs department raided our house and they conducted the search and got recovered said Two bags from wheat chaff which was lying in the verandah.
xx xxx xxx"
32. The perusal of these statements show that at one stage Manjit Kaur had the knowledge that two bags were lying under the wheat chaff but she was not aware of the fact as to what was there in those bags. She had the conscious knowledge that two bags are kept by her husband but attributing the conscious possession of contraband (heroin) to her would be stretching the case beyond the evidence.
33. The term conscious knowledge is not synonymous with the term conscious possession. Possession is a polymorphus term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all the situations. We in this case are not criticising the statements of Manjit Kaur made on three different dates and taking them as they are, we are of the considered view that may be Manjit Kaur appellant was conscious of the existence of two bags lying in the Verandha but she was not aware of the fact as to what was in two bags. On the other hand she was also not having actual control over it and incidently when the house was raided, her husband Ajaib Singh was not present and as such Manjit Kaur appellant was asked to be a witness to the search and in token of the search conducted in her presence, she had initially signed certain paper. The other statements also show that certain enquiries were made from Manjit Kaur and then it revealed that how the two bags were kept by her husband under the wheat straw. We, thus, by way of abundant caution, extend the benefit towards her and acquit her of the charge.
34. However, Ajaib Singh appellant has no escape. We have also seen his three statements Ex. PO, PQ and PR respectively. If these statements are read collectively, there remains no doubt that Ajaib Singh appellant had also the knowledge that the two bags were containing contraband article and he had taken Rs. 10,000/- for keeping the same in his house under the what straw. Though two independent witnesses of the recovery have not been produced by prosecution, this fact would not dent the recovery of the contraband at all. The actual control or the conscious possession of the contraband (heroin) qua Ajaib Singh is proved beyond any shadow of doubt and in our considered view, he has been rightly convicted for the charge framed against him.
35. Now we would refer to the criticism canvassed by Mr. Ghai in respect of the confessional statements of the appellants recorded u/s 108 of Customs Act. In this context the argument advanced was that although these statements are admissible in evidence yet those cannot be termed as substantive evidence for the purpose of conviction in the absence of corroboration by way of other cogent evidence.
36. We have very minutely scanned the entire evidence recorded by the trial court and all the other relevant documents once again. We are of the view that the case of Harjinder Singh alias Jinda is distinguishable from others. There is no statement of Harjinder Singh alias Jinda recorded u/s 108 of the Customs Act. There is also no statement of this appellant even u/s 67 of the N.D.P.S. Act. He was just booked on the statement of his co-accused namely Ravinder Kumar in which he has stated that Mohinder Singh alias Minda and Harjinder Singh alias Jinda had kept the plastic bags in the fields of Ajaib Singh. Similarly Mohinder Singh has also named him in his statement recorded by the Custom authorities. Avinash Kumar Sharma also states that he had given Rs.80,000/- to Harjinder Singh alias Jinda. These statements of the co-accused cannot be termed as substantive piece of evidence against Harjinder Singh alias Jinda when his statement u/s 108 of Customs Act was not recorded. Even the prosecution evidence is silent about the arrest of Harjinder Singh alias Jinda. Rameshwar Singh PW1 has categorically stated that he did not arrest Harjinder Singh alias Jinda. He also stated that no statement of Harjinder Singh was recorded by hart The relevant portion of the statement of Rameshwar Singh PW1 is reproduced as under:-
"xxx xxx xxx
Accused Harjinder Singh was not arrested by me. Complaint was filed by me. I am the Investigating Officer of this case. During investigation his (Harjinder Singh alias Jinda) statement was not recorded."
xxxxxxxxx"
37. Ajaib Singh also does not talk a word about Harjinder Singh alias Jinda appellant whereas he is a witness to all other statements allegedly made by other appellants. We have also seen the statement recorded u/s 313 Cr.P.C. in this respect. There is no reference to any incriminating evidence in regard to the statement of Harjinder Singh or even the arrest part. This being a very crucial weakness in the prosecution case, it would not be safe to convict Harjinder Singh alias Jinda appellant and as such we extend him the benefit of doubt. He is consequently, acquitted of the charge framed against him.
38. All the other statements recorded u/s 108 of the Customs Act are inter-related. In the confessional statement of Ajaib Singh appellant, we find that Avinash Kumar Sharma (appellant) was known to him only and therefore, he had initially referred to Avinash Kumar who had come with other two persons to his house and had talked with him about the retention of contraband. The interrogation of Ajaib Singh appellant reveals that he knew Avinash Kumar Sharma appellant because he was brother of Yograj who was resident of village Gagomal and said Yograj was employed in Army and is friendly to the brother-in-law of Ajaib Singh appellant. During further interrogation two photographs were shown to Ajaib Singh, out of which one was of Avinash Kumar Sharma. He had also identified another person who had come alongwith Avinash Kumar Sharma through a photograph shown to him. He also referred to a third man giving some physiognomic description and the third man was produced before him and consequently, Ajaib Singh appellant identified him to be one of those three persons who had come with Avinash Kumar Sharma. These two persons are Ravinder Kumar and Avtar Singh appellants. The relevant portion, of vernacular statement of Ajaib Singh rendered in English is as reproduced as under:-
"xxx xxx xxx
Question 6: Whether you know those three persons who had come to your home on 11.2.97 at about 7.00 A.M., what are their names and addresses?1 If not whether you can identify them by their photographs?
Answer : I can tell the name of only one person among them because while talking with me he had disclosed himself as Avinash, the brother of Yograj. Other two persons remained silent. Yograj is resident of village Gagomal and is serving in the military and is friend of my brother-in-law Karnail. I know only this. Perhaps I can identify them if they come before me. 1 can identify them by seeing their photographs also. A Photograph on which 18/96 was written on a slate, was shown to me and I certify that this photograph is of the same person Avinash which came to our home on 11.2.97. After this another photograph was shown tome. I do not know the name of this boy, but he was one of those three persons which had come to our house on 11.2.97. On identifying I certify these photographs. After this one boy was brought before me whom I identify the same this boy who had come to our house on 11.2.97 along with two other healthy persons.
Question 7 : Whether this thin body person who has been produced before you had talked regarding taking the goods or for giving the money on 11.2.97?
Answer: No. This boy did not talk to me and remained silent. Only Avinash had talked to me.
Question 8 : You have told that these three remained at your house for about five minutes but as stated by Ravinder Kumar, who came to you on 11.2.97, that they remained at your home for about 20 minutes and took tea?
Answer: At that time when those three persons came to my house on 11.2.97 at about 7.00 A.M. I was not present at my house. They had already taken tea when I reached home and they remained only for five minutes after my arrival. So 1 had already stated that remained at my home for five minutes.
xxx xxx xxx"
39. It is worth mentioning here that the Customs Authorities swung into action only when the first statement of Ajaib Singh Ex. PO was recorded on 16.2.97 u/s 108 of the Customs Act. In the said statement he had disclosed to the Customs authorities that three persons had come to his house and a sum of Rs. 10,000/- were given to him and all the three persons had covered their faces with Lohis but he could not see their faces and out of them one had disclosed his identity as Avinash Kumar Sharma the brother of Yograj. The physiognomic description of other two persons was given by Ajaib Singh appellant.
40. One material fact which cannot escape notice of this Court is that before the two statements Ex. PQ and PR were recorded by the Custom authorities on 21.2.97 and 23.2.97 respectively, the statement of Ravinder Kumar appellant Ex. PY was already recorded on 19.2.97. In his statement recorded u/s 108 of Customs Act, he had disclosed his relations with Avinash Kumar and ultimately he also disclosed the Customs Authorities that how they had come in contact with Ajaib Singh appellant of village Malikpur who was also known as Jeba driver. The vernacular statement of Ravinder Kumar appellant runs into many pages indicating his involvement in the smuggling of contraband but the relevant portion rendered in English translation in respect of the present recovery is in the answers to question Nos.38 and 39, which is reproduced as under:-
"xxx xxx xxx
Question 38:- who are the persons to whom you met on 10.2.97 and what work you. did?
Answer: On 10.2.97 1 got up at about 6.00 A.M. and after brushing my teeth, took tea with my sister Smt. Ramesh Kumari d/o Sh. Avinash Kumar. About 7.00 A.M. Avtar came to Avinash''s house on his white Bajaj Chetak Scooter. At that time Avinash was sleeping. Then Avtar awakened Avinash. Then Avinash got himself ready and went to the P.C.O. of Bhaiya at about 8.30 A.M. on his scooter PB 18-A-1666.1 did not accompany Avinash to the P.C.O. and remained at his house where some "Mistri" were working. Avtar and Avinash returned home at about 10.30 A.M. and were puzzled. Both of them came to me on the roof and discussed openly that their goods have not been captured by any Deptt. but have been removed by some person. Had this been captured by some Deptt. then some Naka''s would have been laid there. In the state of puzzleness Avinash Murmured what will happen. Then Avinash said that their goods have not been captured by any Deptt. but have been removed by some person. Had this been captured by some Deptt. then some Naka''s would have been laid there. In the state of puzzleness Avinash murmured what will happen. Then Avinash said that Jinda and Minda would come back after making inquiries in the said village as to whom the said field belonged and who are deployed there for peeling of sugar-cane and they will reach at Shaheed Bhagat Singh market at about 2.30 P.M. and will inform us. Then Avinash and Avtar remained in the house upto 2.00 P.M. and thereafter both of them went to Shaheed Bhagat Singh market on scooter No. PB 18-A-1666 of Avinash. Jinda and Minda had gone to the village which were near to the said sugar-cane field on the scooter of Avtar. Then at about 5.30 P.M. Avinash and Avtar reached at the residence of Avinash on their respective scooters and remained busy in discussion upto 8.00 P.M. I also remained there. Then Yog Raj Fauzi, elder brother of Avinash, came there and Avinash asked him whether he knew person named Jeba, driver in village Malikpur. Then Yograj asked him about the work. Avinash replied that some goods were kept in the his (Jeba Driver''s) sugar-cane fields by some of his (Avinash''s) persons and now the said goods are not there. Since the sugar-cane is being reaped we want to know from him as to where he has kept our goods. Yograj said that whether he is the same Jeba had come from Delhi after Delhi riots. Then Avinash replied in affirmative that he is the same Jeba who has come from Delhi. Then, Yog Raj told Avinash that he is the brother-in-law of his friend, Karnail Fauzi of vill. Dharmkot. His wife is like a sister to me you disclose him my name and he will return your goods and Don''t pull his family to any harm. After saying this Yograj went to his house which is adjacent to Avinash''s house. Then Avtar also went out and I stayed in the house of Avinash at night.
Question 39 :-Where did you go and to whom did you meet and what you did on 11.2.97?
Answer. On 11.2.27 at about 8.30 A.M. Avtar came to the house of Avinash and knocked the door. Then Munish came up and awakened me and said that his papa has called him to come down. Then Avtar, Avinash and myself proceeded to village Malikpur at 6.15 A.M. on two Bajaj Chetak scooters (on of light green colour PB18-A-1666 and the other on the white colour) and reached the house of Ajaib Singh at 7.30 A.M. At that time Ajaib Singh was not present in his house, only his wife and children were there. Avinash talked with the wife of Ajaib Singh about Yograj Fauzi and Karnail Fauzi and told her that he is also her relative as he is the brother of Yog" Raj and Yog Raj is her "Dharam Bhra" (brother) so he (Avinash) was also like brother to her. She prepared tea and in the mean time Ajaib Singh also reached there. Then Avinash enquired from the wife of Ajaib Singh in front of Ajaib Singh whether they had reaped the sugarcane day ''before yesterday and whether they had taken out some goods from there, to which both of, them, replied in negative saying that they have not reaped their sugar-cane, because they did not get time, being busy in polling and in some dispute in the village. Then Avinash said to Ajaib Singh to return the goods to. him and stated that it is death. These goods belongs to such a party that either they will kill you or some Deptt. may capture you. On hearing this Ajaib Singh said that he is not a child and has been a driver for the last 20 years and has seen the world and that he knows how much costly this powder is? Then Avinash took out a packet of Hundred rupee note and gave it to Ajaib Singh saying to keep this amount with him and return the good to them. At first Ajaib Singh refused to accept the money but later asked his wife to take the money and his wife took the money from Avinash. Then Ajaib Singh stated that the goods are not with him and that he will enquire from the labour as to whether they had seen the goods or not and that you (many persons) need not come to my house and send only Yograj tomorrow. The wife of Ajaib Singh brought the tea and we (three persons) took tea in the room. We stayed there for about 20 minutes Then all three of us went straight to house of Avinash and reached there about 1 1.00 A.M. Then Avtar Singh left for his home and 1 stayed at night at the house of Avinash.
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41. Another relevant fact worth mentioning'' is hat Ravinder Kumar appellant has studied upto 12th standard and his statement is in his own hand.
42. In this sequence, the Customs authorities started looking for the links who had the actual involvement in this consignment and as such recorded statements of Mohinder Singh, Avtar Singh and Avinash Kumar appellants also which are Ex. PBB, PCC; PKK. PLL, PMM and PFF, PGG respectively. We have also minutely perused these statements as well and are of the view that there was no undue influence or duress upon them while they were making statements before the customs authorities. The perusal of these statements shows that Avinash Kumar is a king-pin and was indulging in this business after transporting contraband from across the border and thereafter supplying the same to Delhi and other quarters. The statements of Avtar Singh and Avinash Kumar are also written in their own hands, as is clear from the statement of prosecution witnesses.
These statements are in the form of questions answers.
43. There is another reason for believing the statements, because had these statements been under coercion or any undue influence, the appellants could very well retract from their earlier statements recorded u/s 108 of the Customs Act when they were produced before the concerned Magistrate but they did not choose to do so. It has also come into prosecution evidence that before the statements u/s 108 of the Customs Act were recorded, the appellants were" arrested or their arrest memos were prepared.
44. The Customs officer who records the statement u/s 108 of the Customs Act need not follow the safeguards of Section 164 Cr.P.C. The entire idea behind this provision is that the officer questioning the person must gather" all the truth concerning the episode. If for instance the statement so extracted is untrue, its utility for further investigation gets lost. The absolute bar of Section 25 of Indian Evidence Act is not applicable to the Customs Officer because he is a person other than a police-officer. The court has just to see as to whether the inculpating pot dons were made voluntarily or whether they were made on account of duress, coercion or physical threat etc.
45. The argument of learned counsel for the appellants that the Custom Officials who had recorded the statements of the appellants have not been examined, is of no avail. Inspector Rameshwar Singh PW1 and Ajit Bhatia, PW2 have categorically stated that the statements were recorded in their presence. They have also signed certain statements in this case. Even otherwise, the appellants do not disown these statements. The only plea taken by them is that these statements are on account of coercion which were later-on converted to their confessional statements.
46. In this peculiar case, if the investigation conducted by the Customs authorities from one step to other step is seen individually and collectively, it leaves no weakness much less the lacuna which would show that any of the five appellants was not involved in this racket. The judgment relied upon by Mr. Ghai, the learned Senior Advocate rendered in Tarlochan Singh v. The Assistant Commissioner, Customs (supra) would be of no help to him. In Tarlochan Singh (supra) the benefit was given to Tarlochan Singh on the ground that may be the was financier but there was no evidence against him to the effect that he had invested the amount in the purchase of the contraband. Similarly Devinder Singh the owner of the truck involved in carrying the contraband in that case was acquitted on the ground that he was being involved on the statement of his co-accused. The other accused Were however convicted. Harjinder Singh alias Jinda has already been acciniru"? by us on the same rational.
47. In the present case, we find the corroboration of every plank of evidence at every stage indicating the involvement of the other five appellants. There is no reason to doubt the statements recorded u/s 108 of the Customs Act which certainly in our view have turned to be substantive piece of evidence against all the'' five appellants. Our views are strengthened by the observation of Apex Court rendered in Bhanabhai Khalpabhai v. Collector of Customs and another, 1994 SCC (Criminal) 882.
No other point has been urged.
48. We, thus, find no infirmity in the impugned judgment of the learned Special Judge, Amritsar so far as conviction of five appellants namely Mohinder Singh alias Minda, Avtar Singh, Ravinder Kumar, Avinash Kumar Sharma 3nd Ajaib Singh are concerned and their conviction is hereby confirmed.
49. So far as the quantum of sentence is concerned, we feel that Ajaib Singh appellant does deserve some reduction in the sentence. He has been awarded 15 years substantive sentence. Taking all the facts into consideration, we reduce his sentence from fifteen years to twelve years.
50. Since the fine is Rs. one lac only which is the minimum, we do not interfere with the sentence part of other five appellants also.
51. In this case very heavy recovery of heroin is effected and in our view no other appellant deserves any leniency in respect of the quantum of sentence already awarded by the trial court because all are the active members of a racket. We, consequently maintain the same.
52. In this case very heavy recovery of heroin is effected and in our view no other appellant deserves any leniency in respect of the quantum of sentence already awarded by the trial court because all are the active members of a racket. We, consequently maintain the same.
53. The net result is that Criminal Appeal N0.681-DB of 2001 filed by Harjinder Singh alias Jinda is hereby allowed. His conviction and sentence are set-aside and he is also acquitted of the charge.
54. Criminal Appeal No. 47-DB of 2002 filed by Manjit Kaur and Ajaib Singh appellants is partly allowed. The conviction and sentence of Manjit Kaur wife of Ajaib Singh are set-aside and she stands acquitted of the charge whereas appeal filed by Ajaib Singh appellant is dismissed with the modification in the quantum of sentence as indicated above.
Other two appeals bearing Criminal Appeal N0.658-DB of 2001, filed by Mohinder Singh alias Minda and Avtar Singh and Criminal Appeal No.664-DB of 2001 tiled by Ravinder Kumar and Avinash Kumar Sharma are hereby dismissed.
Manjit Kaur wife of Ajaib Singh and Harjinder Singh alias Jinda son of Karnail Singh appellants shall be released forthwith if they are in custody and are not required or wanted in any other case.
Let intimation about the passing of this judgment be also sent to the learned Chief Judicial Magistrate and the Jail authorities who would take necessary action according to law.
