PON ADITHANversusDEPUTY DIRECTOR, NARCOTICS CONTROL BUREAU, MADRAS/. I

                            PON ADITHAN                                         A
                                    v.                                      I

 DEPUTY DIRECTOR, NARCOTICS CONTROL BUREAU, MADRAS/.

                             JULY 16, 1999

               [G.T. NANAVATI AND N.S. HEGDE, JJ.]                              B

     Criminal Law :

      Narcotic Drugs and Psychotropic Substances Act, 1985-Section
50(1)-Contraband article-Search and seizure of-Right of accused-To be C
searched in the presence of gazetted officer or a Magistrate-Intelligence
Officer, who searched the accused, deposed about due compliance with
S.50(1)-However, no independent evidence or other supportive documentary
evidence-Held: In the circumstances ofthe case, oral evidence ofIntelligence
Officer sufficient for Proving due compliance with S. 50(1)-Subsequent
involvement of Intelligence Officer in a case under the Act, inconsequential. D

      Section 8(c) and 21-Accused found in· possession of heroin without
valid permit-Two samples of seized heroin were prepared by the court
assistant in presence of Magistrate-Samples Properly packed, sealed and
sent to chemical analyst who found seal intact-Inconsistency in the evidence E
of chemical analyst and court assistant as regards weight of samples-Held,
Such inconsistency does not mean sample examined by chemical analyst was
not heroinseized

     Evidence Act, 1872, Section 24.

       Confessional statement-Made by accused-While in custody of
                                                                                F
Intelligence Officer, Narcotics Intelligence Bureau-No complaint of threat
and pressure made by accused when produced before Magistrate on the next
day-No complaint thereafter till statement recorded under S. 313 Cr.PC.-
Voluntary nature-Held, In the circumstances of the case, accused made
confessional statement voluntarily.                                        G
      The appellant was convicted under Section 8(c) read with Section 21
of the Narcotic Drugs and Psychotropic Substances Act, 1985. The High
Court confirmed the conviction. Hence this appeal.

     According to the prosecution, the appellant was found in possession of H
                                   897
    898                    SUPREME COURT REPORTS                     [1999] 3 S.C.R.

A ISO gms of heroin without a valid permit. At the trial, the evidence of PW-
    1, Intelligence Officer in the Narcotics Intelligence Bureau, who had searched
    and arrested the appellant, was led. The court assistant prepared two samples
    of the seized heroin in presence of the Magistrate. One sample was properly
    packed, sealed and sent to the chemical analyst who found the seal to be
B   intact. The appellant had made a confessional statement before PW-1
    corroborating her evidence.

          On behalf of the appellant it was contended that the mandatory
    requirements ofS. 50(1) of the Act were not complied with; that PW-1 could
    not be regarded as a reliable witness since she was subsequently involved
C   in a case under the Act; that oral evidence of PW-1 was not sufficient to
    establish compliance of S. 50(1), that the confessional statement of the
    appellant was made under threat and pressure and that there was inconsistency
    in the evidence of the court assistant and chemical analyst as regards the
    weight of the seized heroin.

D         Dismissing the appeal, this Court
                                   /
           HELD : 1. It cannot be' laid down as a proposition of law that in the
    absence of independent evidence or any other supporting documentary evidence,
    oral evidence, of a witness conducting the search cannot be regarded as
    sufficient for establishing compliance with the requirement of Section 50(1)
E   of the Narcotic Drugs and Psychotropic Substances Act, 1985. Moreover, in
    this case, the confessional statement of the appellant corroborates the evidence
    of PW-1. The subsequent involvement of PW-1, the Intelligence Officer,
    Narcotics Intelligence Bureau, in a case under the Act cannot affect her
    evidence in this case. (901-G-H; 902-A; 900-G]

F         T.P. Razakv. State ofKera/a, (1995] Supp. 4 SCC 256, held inapplicable.

          2. The confessional statement came to be recorded while the appellant
    was in the custody of PW-1. But that by itself cannot be regarded as sufficient
    to hold that the confessional statement was made by the appellant under
G   pressure of compulsion. No i:omplaint was made by the appellant when he was
    produced before the Magistrate on the next day nor had he made any complaint
    thereafter till his statement came to be recorded under Section 313 of the
    Criminal Procedure Code, 1973. It was only during the trial that a suggestion
    was made to PW-1 ahd subsequently when the appellant gave a statement
    under Section 313 Cr. P.C. he stated that he gave the confessional statement
H    under threat and pressure. Even while giving his statement under Section
      PON ADI THAN v. DY. DIR., NARCOTICS CONTROL BUREAU [NANA VATI, J.]      899
313 CR.P.C the appellant had not stated what was the nature of the threat            A
given to him or in which manner the pressure was brought upon him. It was
a vague statement. If in such circumstances the trial court held that the
confessional statement was voluntarily made and thought it safe to rely upon
the same it cannot be said that it committed any error in doing so.
                                                                   [902-C-E)         B
       3. As the samples were prepared in the court in presence of the
Presiding Magistrate and were properly packed and court seal was applied
on them and as the chemical analyst had also found the seal intact there is
little room for doubt that the sample which was examined by the chemical
analyst was a part of seized heroin. [903-D]
                                                                                     c
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I I
of 1997.

    1 From the Judgment and Order dated 23.4.96 of the Madras High Court

in Crl.A. No. 544of1989.
                                                                                     D
      U.R Lalit, N.RS. Ganesan, V. Balaji andA.T.M. Sampath for the Appellant.

     Harish Chandra, Survira Lal, D.S. Mehra, G. Prakash and V.K. Verma for
the Respondent.

      The Judgment of the Court was delivered by                                     E
      NANA VATI, J. This appeal is directed against the judgment of the High
Court of Madras in Criminal Appeal No. 544of1989. The High Court confirmed
the conviction of the appellant under Section 8© read with Section 21 of the
Narcotic Drugs and Psychotrophic Substances Act, 1985 and dismissed the
appeal.                                                                              F
      A complaint was filed by the respondent against the appellant alleging
that the appellant was found in possession of 150 gms of heroin without a
valid permit on 13.4.1988 at about 6 P.M. while he was passing on a road in
the city of Madras and thus he had committed the aforesaid offence.
                                                                                     G
       In order to prove its case the prosecution Jed the evidence of Gladys
Lilly (P. W. l ), who was then working as an Intelligence Officer in the Narcotics
Intelligence Bureau, at Madras and who had searched and arrested the
appellant. It also examined N. Muthu (P.W.4) who was taken as an independent
witness to witness the search and arrest and in whose presence the search
and arrest were made; but, he did not support the prosecution. Evidence was          H
    900                    SUPREME COURT REPORTS'                    [1999] 3 S.C.R.

A also led to prove that what was found from the appellant's possession was
    di-acetyl Morphine, which is popularly known as 'heroin'. The trial Court
    believed the evidence of P.W.l and the confessional statement (Exh. P- 3)
    made by the appellant before P.WJl and convicted the appellant.

          The High Court after re-appreciating the evidence held that the evidence
B   of P. W.1 was reliable and sufficient to sustain the conviction of the appellant.
    Probably because the High Court found his evidence sufficient, it did not
    record any finding with regard to acceptability of the confessional statement
    of the appellant

C          Mr. Lalit, learned senior counsel for the appellant, submitted that the
    mandatory requirement of informing the accused about his right under Section
    50(1) of the Act to be searched in presence ofa gazetted officer or a Magistrate
    was not complied with in this case and, therefore, it could not have been held
    that heroin was found from the possession of the appellant. He emphasized
                                                                                    /
    that the independent witness to mahazar has not supported the prosecution
D   and the only evidence on the point of search and seizure is of P. W.1. He also
    drew our attention to the admission made by P. W. l in her cross examination
    that she had not prepared any contemporaneous writing on the basis of
    which it can be said that she had informed the appellant about his right under
    Section 50(1). Both the Courts below, after due scrutiny of the evidence of
E   P.W.l, has found that P.W.l was a reliable witness and there was no reason
    to doubt her version that she had informed the appellant about his said right.
    After carefully scrutinizing the evidence of P. W. l we are of the opinion that
    it can safely be relied upon as it does not suffer from any infirmity nor is there
    any good reason for not accepting the same. We have scrutinized the evidence
    of P.W.lwith more care because the learned counsel stated before us that
F   P. W. l herself was subsequently involved in the offence under the Act and,
    therefore, she cannot be regarded as a reliable witness. After the hearing was
    concluded but before the judgment could be delivered written submissions
    were given by the learned Advocate on Record and therein also it is stated
    that P.W.1 along with her husband has been involved in a case under the Act
G   and that criminal proceedings are going on against the1n. Apart from the
    question of admissibility of her evidence we are of the view that her subsequent
    involvement, if any, in a criminal offence cannot affect her evidence in this
    case. The incident involving the appellant had taken place in the year 1988
    whereas the incident involving P. W. l is stated to have taken place in the year
     1998, that is after I 0 years. We therefore, do not think it fit to consider this
H   new material while appreciating the evidence of P. W. l.
      PON ADITHAN v. DY. DIR., NARCOTICS CONTROL BUREAU [NANAVATI, J.]       901

      It was next contended by Mr. Lalit that oral testimony of a witness alone A
cannot be regarded as sufficient for establishing that the requirement of
Section 50(1) was complied with. To support this contention he relied upon
the decision of this court in T.P. Razak v. State of Kera/a, [ 1995] Supp. 4 S.CC.
256. In that case the Sub-Inspector of Police had searched the accused and
recovered brown sugar from him. He deposed before the Court that before the
accused was searched he had asked the appellant whether he wanted to be B
taken before a Gazetted Officer or a Magistrate for the purposes of search and
that the ;:tccused had replied that it was not necessary. As this fact was not
reflected either in the F.I.R. or in the seizure mahazar and the independent
witness to the rnahazar had not supported the version of the Sub- Inspector
this Court held that the prosecution had failed to establish that there was C
compliance with the provision of Section 50( I) of the Act. As it appears from
the judgment the trial Court in that case had not considered it necessary to
assess the evidence of Sub-Inspector of Police since it was of the view that
it was not necessary to comply with the provisions of Section 50(1 ). The High
Court had also proceeded on the basis that the said requirement of Section
50(1) is directory and, therefore, its non compliance was not fatal to the D
prosecution case. It was in the context of these facts and circumstances that
this Court held :

        "Having regard to the fact that the FIR and Seizure Mahazar do not
        mention about the appellant having been asked before the search was E
        conducted as to whether he would like to be produced before a
        Gazetted Officer or a Magistrate and the further fact that P.W.l, the
        other. independent witness, also does not state about this we are of
        the view that the prosecution has failed to establish that there was
        compliance with the provisions of Section 50 of the Act before
        conducting the search of the appellant."                              F

      In that case no clear finding was recorded regarding credibility of the
Sub-Inspector of Police who was the only witness on the point. It was upon
appreciation of the evidence led in that case that it was held that the prosecution
had failed to establish that there was compliance with the provisions of G
Section 50(1) while conducting the search of the accused. We, therefore,
cannot agree with the submission of Mr. Lalit that this Court in that case has
laid down as a proposition· of law that in absence of independent evidence
or any other supporting documentary evidence, oral evidence of a witness
conducting the search cannot be regarded as sufficient for establishing
compliance with the requirement of Section 50( I).                                  H
    902                   SUPREME COURT REPORTS                   [1999) 3 S.C.ll.

A         .Moreover, we have, in this case, the confessional statement (Ext. P-3)
    made by the appellant which corroborates the evidence of P. W. l. It was,
    however, submitted by Mr. Lalit that the Courts below had committed a grave ,
    error in relying upon the said confessional statement and this Court also
    should not rely upon the same as the accused had retracted the same and
B   categorically stated that it was not voluntarily made by him. He submitted that
    the said statement was made while he was in custody and as stated by the
    appellant in his statement under Section 313 Cr.P.C. it was given by him under
    threat and pressure. P.W.l had taken the appellant to her office· and the
    confessional statement came to be recorded at about 8 P.M., no doubt, while
    the appellant was in custody of P.W.l. But that by itself cannot be regarded
C   as sufficient to hold that the confessional statement was made by the appellant
    under pressure or compulsion. No complaint was made by the appellant when
    he was produced before the Magistrate on the next day nor he had made any
    complaint thereafter till his statement came to be recorded under Section 313
    Cr.P.C. It was only during the trial that a suggestion was made to P.W.l and
    subsequently when the appellant gave a statement under Section 313 Cr.P.C.
D   he stated that the confessional statement was given by him under threat and
    pressure. Even while giving his statement under Section 313 Cr.P.C. the
    appellant had not stated what was the nature of the threat given to him or
    in which manner the pressure was brought upon him. It was a vague statement.
    If in such circumstances the trial Court held that the confessional statement
E   was voluntarily made and thought it safe to rely upon the same it cannot be
    said that it committed any error in doing so. We are also of the view that the
    said confessional statement was made by the appellant voluntarily and,
    therefore, it can be used against him.

         It was lastly contended by Mr. Lalit that in view of inconsistency
F regarding identity of the sample the Courts below committed a grave error in
  holding that the sample which was examined by the chemical analyst was a
  part of M.0.3, the article which was seized from the appellant. He drew our
  attention to the evidence ofGovinda (P.W.3), who was working as an Assistant
  in the Court of the Magistrate. He has deposed that under the directions of
G the Magistrate he had prepared two samples of ~ gms. each out of M.0.3
  which was before the Court and the said samples were sent by him to the
  chemical analyst for analysis. P.W.2, the Chemical Analyst, in his evidence
  has stated that the sample which he had received from the Court weighed 6.9
  gms. Relying upon this inconsistency as regards the weigh it was submitted
  by the learned counsel that benefit of doubt should be given to the appellant
H as it cannot be said with certainty that the sample which was examined by
     PON ADITHAN v. DY. DIR., NARCOTICS CONTROL BUREAU [NANA VAT!, J.]    903
the chemical analyst was the same sample which was sent by the Court. On A
15.4.1998 P.W.l had given an application to the Magistrate for drawing a
sample from the brown powder which was seized from the appellant and
which was believed to be heroin, for analysis by the Forensic Science
Laboratory. Granting this application the learned Magistrate directed Govinda
(P.W.3), to prepare two samples of 5 gms. each out of M.0.3. The said samples
were prepared as stated earlier in the Court and thereafter they were properly --B
put in separate bags and then sealed with the Court seal. One sample was
then forwarded with a covering letter which contained necessary details
regarding case number and the sample. Therefore even though P. W.3 had
stated that he had correctly weighed the two samples and there was no
possibility of any mistake on his part much weight can not be given to his C
evidence as in the forwarding letter prepared by him he had mentioned that
the weight was about 5 gms. As the samples were prepared in the Court in ·
presence of the Presiding Magistrate and were properly packed and court seal
was applied on them and as the chemical analyst had also found the seal
intact there is little room for doubt that the sample which was examined by .
the chemical analyst was a part of M.0.3. In our opinion, the Courts below D
did not commit any error in holding that what was found from the appellant
was heroin.

      As we do not find any substance in any of the contentions raised on
behalf of the appellant this appeal is dismissed.
                                                                                E
v.s.s.                                                       Appeal allowed.