Azaz Khan vs Union of India

Mandhata Singh, J.—Heard learned counsel for the petitioner-appellants and learned counsel for the State. Prosecution case, in brief, initiated on complaint petition of Sri H.N. Jha, Inspector, Customs Division, Muzaffarpur is that on 13-2-2006 after receiving secret information to the Preventive Team of the Customs Department, he along with others rushed towards Motihari Road along with two independent witnesses, reached near Kanti on N.H. 28 and saw a tanker bearing Registration No. H.R. 63-9564 coming from Motihari side. Vehicle was stopped by Customs Officials, its driver was enquired about contents of the tanker and same was replied about remaining of some banned substance explaining that they were not aware about its nature as same was kept in the tanker forcibly. After opening of the third chamber of tanker, some packets wrapped with polythene sheets and tied with jute ropes were found kept. Tanker was brought to the Customs Office at Muzaffarpur where 17 packets were recovered from third chamber of the tanker, same is said Ganja which was weighed to be 125 kg. Article recovered from the tanker was seized in presence of two independent witnesses. Vehicle was also seized, three representative samples of 10 gm. each were taken away from seized packets and sealed. Driver of the vehicle was Ajaj Khan and its khalasi, Jitendra Yadav. Samples are said to be examined and a report is also mere on record.

Both accused persons were arrested, put on trial which ended in conviction and sentence for the offence u/s 20(b)(ii)(c) of the N.D.P.S. Act.

In all 8 witnesses are examined in the case. They are P.W. 1 Karan Mahto, P.W. 2 Harnarain Jha, complainant of the case, P.W. 3 Shivendra Satyarthi, P.W. 4 Ranjit Singh, P.W. 5 Sushil Kumar Singh, P.W. 6 Surendra Singh, P.W. 7 R.D. Sah and P.W. 8 Laxmi Choudhary, Inspector, Customs Godown Incharge.

P.Ws. 2 to 7 are Customs Officials, Members of the raiding party also to corroborate the search and seizure in the case P.W. 1 is one of the seizure list witnesses, examined in the case but after examination in Chief, he did not turn up for cross-examination, so his evidence was expunged.

Much stress is there on behalf of the accused-appellants on legal points that there is no independent witness in the case to be relied, there is no admissible report from forensic laboratory to show the seized substance as ganja and alleged confession made by the accused-appellants was not brought forward to the accused-appellants, while they were examined u/s 313 of the Cr.P.C. to explain.

Admittedly, a single public witness is examined in the case and his evidence has been expunged as he did not turn up for cross-examination. Custom Officials if can be said interested may be discussed if needed. Another point is admissibility of the report as attested copy of the report from Govt. Opium and Alkaloid Works, Ghazipur (U.P.) is there on record followed by a letter of Joint Director, Office of the General Manager, Govt. Opium @ Alkaloid Works, Ghazipur (U.P.) to the effect that analysis report was already dispatched on 13-3-2006 even then attested copy was being sent.

Attested copy admittedly is secondary evidence not the original one which can be weighed at original; only when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason trot arising from his own default or neglect, produce it in reasonable time; when the original is of such a nature as not to be easily movable; When the original is a public document within the meaning of Section 74; when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection, may also be discussed if the prosecution satisfies that the most vital circumstance appearing in the case about their (accused-appellants) confession was questioned to explain while they were examined u/s 313 of the Cr.P.C.

Ext. 3 and 3/1 are statements of the appellants said confession made by them. Admittedly, no question is put to the accused-appellants u/s 313 of the Cr. P.C. and conviction is based on making this confession one of the grounds certainly has prejudiced these accused-appellants. If there could have been any excuse due to non-prejudice, nature of the offence is heinous and some presumptions are also there in favour of the prosecution, so it is mandatory for the prosecution to follow all the legal requirements including procedural requirements in the N.D.P.S. Act as well as in the Cr.P.C.

Finding prejudice caused to the accused-appellants for giving them no opportunity to explain the circumstance appearing in the case conviction reached by the Trial Court is not liable to sustain. On the observations made above, evidence on record and circumstances of the case, this appeal is allowed. Judgment of conviction and Order of sentence passed by the Additional Sessions Judge-V, Muzaffarpur in Customs (NDPS) Case No. 150 of 2005 are set aside. Accordingly accused-appellants are acquitted of the charges levelled against them. They are in custody, are directed to be released forthwith, if not wanted in any other case and set at liberty.