(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As all the appeals arise out of the common judgement and order of the trial Court, they are being considered by this common judgement.
As per the prosecution case, Narcotic Control Bureau (hereinafter referred to as 'NCB' for short) received secrete specific information that a Kashmiri Sikh person was carrying a huge quantity of Charas in secret chamber of the driver's cabin of one truck bearing R.T.O. No.PAT 8683, coming from the State of Jammu and Kashmir with the consignment of approximately 92.670 kgs Charas (Hashish) and the said Charas was to be delivered to a person named Gulam Mohammad (A-2), resident of Dabhoi, Vadodara (Baroda) District in Gujarat State and the said Gulam Mohammad (A-2) was to come in a fiat car bearing RTO Registration No.GJ-S-8242 and the delivery was to be effected at a specific place near the office of Transport Corporation of India ('TCI' for short), opposite Hotel Shere Punjab, National Highway No.8 ahead of Narol Chokadi, Ahmedabad on 29.9.2001 at about 10 a.m. As per the prosecution case, the said information was reduced in writing by the Intelligence Office of NCB and was submitted to the Zonal Director of NCB and thereafter, a joint team of officers of NCB and ATS Squad formed a team to take necessary action and proceed further. On reaching at the site as per the information provided to them, the NCB Officers saw the truck bearing No.PAT 8683 parked near TCI Office. Thereafter, the panchas and other officers made small group to maintain search at different places to look for the car bearing RTO Registration No.GAS 8042 coming from Baroda. At about 11 hours, one fiat car of white colour bearing RTO Registration No.GAS 8042 was seen coming from Baroda (Vadodara) and there were three occupants in the car and the car stopped near the truck bearing RTO Registration No.PAT 8683. Two persons sitting at the back of the car alighted from the car and they went near the truck No.PAT8683 and stood there. After some time, one Sardarjee came there and started talking to them. The said Sardarjee boarded the driving cabin of Truck No.PAT 8683 and got down after a few minutes with some black-brown coloured packets and handed over the said packets to the said two persons. Thereafter the said two persons, after collecting the packets went to the Car No.GAS 8042 and sat on the back seat. Thereafter, Shri Shailendra Lodha, I.O., Zonal Director and other two persons surrounded the said car No.AS 8042 along with the two occupants and the Kashmiri Sardarjee, who stood by the truck No.GAS 8683. It appears that thereafter the search and seizure was made and as per the prosecution case after following requisite procedure and some black-brown coloured ball-shaped solid substances (ladoos) were found to be kept inside. Some of them were tested on the spot with the help of the testing kit and gave positive result for Charas.
Since it was not possible to weigh all these packets at the site and to conduct further procedures, they were repacked and handed over to the Panchas.
Thereafter, the NCB Officers also searched the truck and it was found that the truck was having one cavity, which was opening like a door and in the said cavity, 14 packets tied in different coloured polythene bags were also found. These packets were containing black-brown coloured Ladoo-shaped solid substances. The test was also carried out at the field and it gave positive result for Charas.
The further steps were taken at the NCB Office. The packets with the Panchas were opened and the weighing and sealing process was undertaken with the help of electronic weighing machine. It was found that the packets recovered from the car GAS No.8042 as well as from the truck No.PAT 8683 were containing Charas and other material, the details of which are as follows :-
Description of packets containing charas recovered from Car No.GAS-8042.
Gross Weight No.
of Ladoos Net weight Samples weight Samples and Exh.
B 3.940 23 3.780 3 samp 25grms each B1, B2, B3 2 A 4.196 27 4.003
A1,A2, A3 3 C 4.226 17 4.072
C1,C2,C3 4 D 4.180 17 4.031
D1,D2,D3 5 E 4.216 18 4.044
E1,E2,E3 6 F 4.232 21 4.064
F1,F2,F3 7 G 4.190 16 4.042
G1,G2,G3 8 H 4.208 27 4.048
M1,M2,M3 Description of packets containing charas recovered from Truck bearing Regn. PAT-8683.
Gross Weight No.
of Ladoos Net weight Samples weight Samples and Exh.
I 4.120 23 3.982 3 samp 25grms each I1, I2,I3 10 J 4.202 22 4.050
J1,J2, J3 11 K 4.208 28 4.084
K1,K2,K3 12 L 4.162 30 4.044
L1,L2,L3 13 M 4.064 22 3.944
M1,M2,M3 14 N 4.160 22 4.046
N1,N2,N3 15 O 4.118 25 3.966
O1,O2,O3 16 P 4.146 28 3.972
P1,P2,P3 17 Q 4.250 28 4.078
Q1,Q2,Q3 18 R 4.300 25 4.122
R1,R2,R3 19 S 4.264 28 4.094
S1,S2,S3 20 T 4.302 28 4.126
T1,T2,T3 21 U 4.170 68 4.066
U1,U2,U3 22 V 3.870 81 3.750
V1,V2,V3 Accordingly, the total quantity of Charas found from the car No.GAS 8042 was weighing 33.338 kgs and from the truck No.PAT 8683, the total quantity recovered of Charas was 59.332 kgs. The necessary panchnamas were drawn and the statement of Daljisingh (A-1) under Section 67 of NDPS Act was recorded. The statement of Gulam Mohammad (A-2) was also recorded under Section 67 of NDPS Act, the statement of Abdul S. Noormohammad (A-3) was also recorded under Section 67 of the Act, the Statement of Iqbal Ibrahim Shaikh (A-4) under Section 67 was also recorded. As per the FSL report it was found that the samples have presence of Hashish a narcotic substance covered under NDPS Act. Thereafter, further statement of A-1 under Section 67 of the Act was also recorded. In the further statement of A-1, the name of Shivkadam @ Shidada had transpired and his involvement in the drug trafficking. It was learnt by NCB Officers that the said Shivkadam original accused No.5 was to run away from his house at Vadodara, therefore, he was served with the summons and thereafter, the statement of A-5 under Section 67 of the Act was also recorded. Thereafter the house of A-5 was also searched in presence of panchas and seven packets containing charas weighing a total quantity of 23.383 kgs was found and seized. The details of such packets are as under :-
Exhibit Gross Weight (Kg.) A 2.918 B 3.092 C 3.082 D 3.008 E 3.094 F 4.098 G 4.094 Total Gross Weight 23.386 The packets were opened and the samples were taken and on the filed, they were tested with the help of testing kits and positive result was found. Therefore, the procedure for repacking and resealing the packets were undertaken. Further, a cash amount of Rs.2 lac and loose papers, files, diary, FDRs Fixed Deposit Receipts) of Kissan Vikas Patra were also found and they were seized, inventorized and sealed from the house of A-5 under the Act. Further, the statement of A-5 under Section 67 of the Act was also recorded. The statement of wife of A-5, Smt. Sulojanaben Shivram Kadam under Section 67 of the Act also recorded. In the statement of A-5, the involvement of Shri Ashif @ Asif H. Chavla (A-6) was found in drug trafficking as one of the conspirators and abettors. Therefore, he was summoned and thereafter the statement of A-6 was also recorded under Section 67 of the Act. As per the prosecution case, since all the accused had committed offences under Section 20(b) read with Section 8(c), Sections 28 and 29 of NDPS Act, the complaint was filed before the learned Special Judge being NDPS Case No.4/2002 against all the accused by Shri Umesh J. Pathak, I.O. of NCB under the duty authority given to him.
The learned Special Judge framed the charges and thereafter upon the denial by the accused for commission of offence the case was tried by the learned Special Judge.
The prosecution in support of the charges for proving the guilt of the accused, examined following seven witnesses and produced 61 documentary evidences as under :
1. PW-1 Shailendra Jayprakash Lodha Ex 29 (Seizing Officer)
2. PW-2 Jagdishbhai Hirjibhai Ramani Ex. 90 (Panch witness to the Seizure Panchnama dated 29.9.2001 regarding seizure at Narol Chokdi)
3. PW-3 Jayeshbhai Anilbhai Karadiya Ex. 109 (Panch Witness to the seizure panchnama dated 16.12.2001 regarding seizure at residence of Accused No.5 at Baroda)
4. PW-4 Umesh Jayantbhai Pathak Ex. 114 (Investigating Officer)
5. PW-5 Janmahmad Fakirbhai Mansari Ex. 185 (Expert from Forensic Science Laboratory)
6. PW-6 Markandbhai Kantilalbhai Pathak Ex. 192 (Expert from Forensic Science Laboratory)
7. PW-7 Pavansing Gajesing Tomar Ex. 197 (Zonal Director of N.C.B.) The prosecution has produced the documentary evidence with list at Ex. 20, 24, and 64 as follows:-
1. Exh.30 Notice under Section 50 of NDPS Act to accused No.2
2. Exh.31 Notice under Section 50 of NDPS Act to accused No.4
3. Exh.32 Notice under Section 50 of NDPS Act to accused No.3
4. Exh.33 Notice under Section 50 of NDPS Act to accused No.1
5. Exh.34 Summons U/s 67 of NDPS Act to accused No.1
6. Exh.35 Summons U/s 67 of NDPS Act to accused No.2
7. Exh.36 Summons U/s 67 of NDPS Act to accused No.3
8. Exh.37 Summons U/s 67 of NDPS Act to accused No.4
9. Exh.39 Summons U/s 67 of NDPS Act to accused No.1
10. Exh.40 Summons U/s 67 of NDPS Act to accused No.2
11. Exh.41 Summons U/s 67 of NDPS Act to accused No.3
12. Exh.42 Summons U/s 67 of NDPS Act to accused No.4
13. Exh.43 Arrest Memo of accused No.1
14. Exh.44 Arrest Memo of accused No.2
15. Exh.45 Arrest Memo of accused No.3
16. Exh.46 Arrest Memo of accused No.4
17. Exh.47 Intimation regarding arrest to relatives of accused No.1
18. Exh.48 Intimation regarding arrest to relatives of accused No.2
19. Exh.49 Intimation regarding arrest to relatives of accused No.3
20. Exh.50 Intimation regarding arrest to relatives of accused No.4
21. Exh.51 Forwarding letter to FSL, Gandhinagar
22. Exh.52 Test Memo
23. Exh.53 Report of FSL
24. Exh.54 Forwarding letter to CRCL, New Delhi
25. Exh.55 Test Memo
26. Exh.56 Report under Section 57 of NDPS Act
27. Exh.57 2nd Statement U/s 67 of NDPS Act of accused No.1
28. Exh.67 Entry in Log Book
29. Exh.68 Entry in Log Book
30. Exh.69 Auto Sales Bill
31. Exh.70 Petrol Bill
32. Exh.71 Application
33. Exh.91 Panchnama dated 29.9.2001 regarding seizure at Narol Chokdi
34. Exh.110 Panchnama dated 16.12.2001 at residence of accused No.5 at Baroda.
35. Exh.115 Gist of information in compliance u/s 42(2) of NDPS Act
36. Exh.116 Summons u/s 67 of NDPS Act to accused No.5
37. Exh.117 Statement u/s 67 of NDPS Act to accused No.5
38. Exh.118 Information by accused No.5
39. Exh.119 2nd Statement u/s 67 of NDPS Act of accused No.5
40. Exh.120 Arrest Memo of accused No.5
41. Exh.121 Information regarding arrest to relatives of accused No.5
42. Exh.123 Statement u/s 67 of NDPS Act of accused No.5
43. Exh.124 Statement u/s 67 of NDPS Act of accused No.5
44. Exh.125 Summons to wife of accused No.5 - Sulochnaben
45. Exh.126 Statement u/s 67 of NDPS Act of w/o accused No.5
46. Exh.127 Intimation to Telephone Department
47. Exh.128 O/C of forwarding letter to CRCL, New Delhi
48. Exh.129 Report of CRCL, New Delhi regarding seizure taken place at Narol Chokdi, Ahmedabad
49. Exh.130 Report of FSL, Ahmedabad regarding seizure at Narol Chokdi, Ahmedabad
50. Exh.131 Summons u/s 67 of NDPS Act to accused No.6
51. Exh.132 Summons u/s 67 of NDPS Act to accused No.6
52. Exh.133 Arrest Memo of accused No.6
53. Exh.134 Telegram to accused No.5
54. Exh.136 Letter to BSNL, Baroda
55. Exh.137 Forwarding letter to FSL regarding seizure at Baroda
56. Exh.138 Receipt of FSL, receiving Muddamal Articles
57. Exh.139 Report of FSL regarding seizure of Baroda
58. Exh.140 Complaint
59. Exh.198 Letter to Bombay Narcotic Cell
60. Exh.199 Reply of Bombay Narcotic Celll
61. Exh.200 Letter to Zonal Director, NCB, Chandigarh The statement of the accused thereafter was recoded under Section 313 of Cr. P.C., wherein they have denied the commission of offence and in the further statements, A-1 to A-4 stated that they were directly or indirectly not connected with the said vehicles and with narcotic substance i.e. Charas and they were not present at the place from where the vehicles and the narcotic substances were recovered and seized. After the recording of the statement under Section 313 of the Act of A-5, it was reported that Accused-5 had expired. It was further stated by the accused in general that NCB officers have forced them to sign the papers by putting them under the fear of mental and physical torture and, therefore, no statement as averred and alleged by the prosecution should be believed. The accused also stated that they had repeatedly told the officers that they were innocent and they have been wrongly planted by the NCB Officers and they were wrongly implicated, as per the accused.
It may be recorded that none of the accused has stepped into the witness box, but accused No.3 and others have not examined any witness in defence, whereas accused Nos.1, 2, and 4 examined, in all, 12 defence witnesses as follows :-
DW-1 Hasinabanu Gulam Muhmad Ganai Ex 208 (w/o Accused No.2 Gulam Mohammad Hajibulla Ganai) 2 DW-2 Mahmad Faruk Abdul Karim Ludaniya Ex 209 (Witness of Accused No.2 Gulam Mohmmad Hajibulla Ganai) 3 DW-3 Hasanali Kadarmiya Diwan Ex 210 (Witness of Accused No.2 Gulam Mohammad Hajibulla Ganai) 4 DW-4 Sabbirbhai Ysinbhai Begwala Ex. 211 (Witness of Accused No.2 Gulam Mohammad Hajibulla Ganai) 5 DW-5 Nazmin Iqbalbhai Ansari Ex 214 (w/o accused No.4 Iqbal Ibrahim) 6 DW-6 Aiyub Gulamnabi Shaikh Ex 217 (son-in-law of accused No.4 who happens to be uncle-in-law of witness) 7 DW-7 Allahrakha Malnmiya Arab Ex 218 (witness of accused No.4 Iqbal Ibrahim) 8 DW-8 Pravinchandra Tribhovandas Gajjar Ex. 219 (Manager of Central Warehousing Corpn. Examined by accused Gulam Mohammad Hajibulla Ganai) 9 DW-9 Ganibhai Rasulbhai Mansuri Ex. 223 (Witness of accused No.4 Iqbal Ibrahim) 10 DW-10 Sureshbhai Maganbhai Rathwa Ex 228 (Police Constable witness of accused No.4 Iqbal Ibrahimwith regard to visit of his relatives to Police Commissioner, Baroda) 11 DW-11 Bharatbhai Dungarsinhbhai Lakhtariya Ex 229 ( reporter of Gujarat Smachar witness of accused No.4 Iqbal Ibrahim regarding news published in daily newspaper of Baroda Edition) 12 DW-12 Opinandar Shribalaji Ganju Ex 237 (witness of accused No.1 regarding his presence in service) The learned Special Judge, thereafter heard the complainant/prosecution as well as the accused and ultimately for the reasons recorded in the judgement and order found that since accused No.5 had expired the case had abated against him and so far as A-1 to A-4 and A-6 were concerned, it was found by the learned Special Judge that they were guilty and deserves to be convicted for the offences punishable under Sections 8(c), 20(b) read with Section 29 of NDPS Act. The learned Special Judge heard the accused for punishment and conviction and ultimately the Special Judge convicted A-1 to A-4 and A-6 and sentenced for life-imprisonment with the fine of Rs.1 lac to each of the accused and in default, further R.I. for a period of two years by each of them. However, so far as the muddamal is concerned, the learned Special Judge directed for confiscation of the same by the Department of Narcotic Control Bureau and the amount of Rs.2 lac in cash and the amount accrued in the FDR of Kissan Vikas Patra seized from A-5 were also ordered to be confiscated by NCB Department and the forfeiture thereof and to be deposited in the Government. It is under these circumstances, the present appeals before this Court by the concerned accused.
It may be recorded that since A-5 had expired, but as the order of confiscation and forfeiture of cash amount and FDRs of Kissan Vikas Patra, etc., was passed wife of A-5 claiming to be aggrieved by the said part of the judgement and order of the learned Special Judge has preferred the appeal being Criminal Appeal No.1269 of 2008. It may also be recorded that A-1 has preferred Criminal Appeal No.1826 of 2008, A-2 has preferred Criminal Appeal No.1398 of 2008, A-3 has preferred Criminal Appeal No.1726 of 2008, A-4 has preferred Criminal Appeal No.1779 of 2008, A-6 has preferred Criminal Appeal No.2550 of 2008, all against the judgement and order of conviction, qua concerned accused/appellant in the respective appeal.
We have heard Mr.Popat, learned Counsel appearing for the appellant wife of A-5 (Expired), Mr.D.A. Chaudhari, learned Counsel for the appellant accused No.1, Mr.B.B. Naik, learned Counsel for the appellant accused No.2, Mr.Dagli, learned Counsel for the appellant accused No.3, Mr.Pratik Barot, learned Counsel for the appellant accused No.4, Mr.Shethna, learned Counsel for the appellant accused No.6, Mr.Hriday Buch, learned Standing Counsel for the original complainant NCB in all the appeals and Mr.K.P. Raval, learned APP for the State of Gujarat in all the appeals.
We have considered the records and proceedings of the Trial Court. We have considered the judgement and order and the reasons recorded by the learned Special Judge.
We may state that henceforth party to the proceedings for the sake of convenience shall be referred to as accused in trial Court. It appears that it would be necessary to consider the contention on the point of law raised by the learned Counsel for the respective parties/accused. In order to deal with the contentions raised on behalf of the respective parties/accused separately, it would also be required for the Court to narrate the contentions raised for that particular accused and the examination thereof by the Court. Apart from the above, there are common contentions raised by the learned Counsel appearing for all the accused, which may also be required to be taken into consideration.
The evidence as came on record, if the statements of the concerned accused under Section 67 of the Act are considered in light of the substance found of narcotic and the trafficking thereof by all the accused step by step goes to show the involvement of the accused in the conspiracy of drug trafficking, so as to attract the provisions of N.D.P.S. Act constituting the alleged offences. But the common contentions raised may first be taken into consideration.
COMMON CONTENTIONS :
It was contended by the learned Counsel appearing for all the accused that the mandatory procedure as provided under Sections 41 and 42 of NDPS Act (hereinafter referred to as the 'Act') have not been followed by NCB Officers, therefore, the whole case of the prosecution may fall to ground. Mr.Naik, learned Counsel appearing for A-2 contended that the procedure as was required to be followed was under Section 41(2) OF THE Act, whereas the learned Counsel appearing for the other accused contended that the procedure as required was under Section 42 of the Act, which has not been followed.
It was the submission of the learned Counsel, Mr.Buch that as such Section 43 of the Act would apply, since the search and seizure of the truck and the car was at a public place and on a public road, but he alternatively contended that even if this Court is to find that the procedure under Section 42 of the Act was required to be followed, then also such procedure has been followed in the present case. It was submitted that even if this Court is to find that the procedure under Section 41(2) of the Act was required to be followed, then also the said procedure has been followed. Therefore, it was contended that there is no lapse of any mandatory procedure while undertaking search and seizure or the authorization or any warrant, therefore, the contention raised on behalf of the accused does not deserve to be accepted.
In order to appreciate the contention, it would be necessary to refer to the provisions of Sections 41, 42, and 43 of the Act.
Power to issue warrant and authorisation. (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed.
Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by nigh or himself arrest a person or search a building, conveyance or place.
The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.
42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is embowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,-(a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may--
(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.--For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.
The Constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh, reported in (1999) 6 SCC, 172 had an occasion to interpret the provisions of Sections 41 and 42 of the Act and it was observed, thus, at paragraphs 8 to 10 as under:-
8. Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-Section (2) the power has also been vested in Gazetted Officers of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other Department of the Central Government or of Border Security Force, empowered in that behalf by general or special order of the State Govt. to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building etc. with a view to seize any contraband or document or other article which may furnish evidence of the commission of such an offence, concealed in such building or conveyance or vessel or place.
9. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief.
10. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful.
Further, the question again came up for consideration before the Apex Court for the interpretation and compliance of the provisions of Section 42 in the case of Kernail Singh Vs. State of Haryana, reported in (2009) 8 SCC, 539, wherein the Apex Court, after considering the subsequent decision in the case of Sajan Abraham Vs. State of Kerala, reported in (2001) 6 SCC, 692 as well as the decision in the case of Abdul Ibrahim Mansoori Vs. State of Gujarat, reported in 2000(2) SCC, 513 recorded the conclusion for the interpretation of Section 42 at paragraph 35, which reads as under :-
35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with there requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements ofSection 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.
The pertinent aspect is that the Apex Court did observe for misuse of the provisions by wrong doers as a major ground of acquittal and such observations can be traced at paragraph 32 of the said decision, which reads as under :-
32. Under Section 42(2) as it stood prior to amendment such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same would adversely affect the prosecution case and to that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section.
If the provisions of Sections 41, 42 and 43 of the Act are considered, in light of the aforesaid two decisions of the Apex Court, it does appear that the intention of the legislature by Sections 41 and 42 of the Act is different than that of Section 43 of the Act as evident from the language, which authorizes any officer or the department mentioned in Section 42 for search, seizure, arrest and detention in any public place or in transit in respect of any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed or along with such drug or substance in any animal or conveyance or article is liable to be confiscated under the Act or any document or any other article, which he has reason to believe may furnish evidence of commission of offence punishable under Chapter IV relating to such drug or substance.
Section 42 speaks about the search and seizure from any other place, conveyance or enclosed place, while Section 43 speaks about the search and seizure from public place or in transit. The wording of Sections 41 and 42 with regard to the information taken in writing has been deliberately omitted by the legislature in Section 43. When any search or seizure is to be made in any public place or in a vehicle in transit or any person to be arrested or detained from the public place, it is not intended by the legislature to take down the said information in writing.
The examination of the contention, in light of the facts of the present case goes to show that the search and seizure is made at a public road on National Highway. Therefore, if the contention is to be considered, keeping in view the facts of the present case, it can be said that Section 43 would apply and not Section 42 or Section 41 as sought to be canvassed and contended by the learned Counsel appearing for the appellants. If the requirement of Section 43 of the Act was to be complied with, the appellants would have hardly any valid reason to contend non-compliance to any statutory provisions and the reason being that the search and seizure had taken place on the public place, therefore, as such the contention raised on behalf of the learned Counsel for the appellants on the premise that the requisite procedure as per Section 41 or Section 42 was not followed would have no legs to stand.
Apart from the above, even if such contention is considered for the sake of examination so far as search and seizure of the conveyance and narcotic substance is concerned, as per the evidence on record of Shri Umesh Pathak (PW-4) (Ex. 114) read with the evidence of Shri Pavansing Gajesing Tomar, Zonal Director (PW-7) (Ex. 197), gist of the information in writing by way of compliance of the provisions of Section 42(2) of the Act was given to the Superior Officer and the same was reduced into writing by Shri Pathak and such information was received by Shri Pavansing Gajesing Tomar (PW-7), Superior Officer and the same was confirmed in the deposition of Shri Tomar. Therefore, it is not possible to agree with the contention that there was any breach of the procedure required to be followed under Section 42 of the Act.
The contention that the procedure as required under Section 41(2) of the Act has not been followed appears to be misconceived. Even if such contention is considered for the sake of examination, it does appear from the deposition of Shri Pavansing Tomar (PW-7) (Ex. 197) that after he received information in writing from Shri Umesh Pathak (PW-4) (Ex. 114), Shri Shailendra Lodha (PW-1) (Ex. 29) was also called, the matter was discussed and thereafter it was decided by all of them to proceed for further search. Therefore, it is not possible to agree with the contention of the learned Counsel for A-2 that since the reasons to believe for commission of offence or the authorization has not come by contemporaneous record there is breach of provisions of Section 41(2) of the Act. If the compliance to the said provisions is to be considered in light of the above referred decision of the Apex Court in he case of Karnail Singh (supra), more particularly the observations made at paragraph 312 it cannot be said that there was any total non-compliance to the requirement of the provisions of Section 41(2) of the Act.
In view of the above, the said contentions raised on behalf of all the appellants deserve to be rejected.
It was next contended by the learned Counsel appearing for he appellants that the recording of the statements under Section 67 of the Act should not be accepted in evidence, nor be relied upon by this Court in tracing the guilt of the accused concerned. It was submitted that the statements recorded were under duress and mental and physical torture, therefore, it cannot be termed as voluntary. It was submitted that though formal arrest was not effected at the time when the statements were recorded under Section 67 of the Act, of the concerned accused at the relevant point of time, but if considered in light of the immediate arrest thereafter, it would show that such statements were not voluntary. It was also contended by the learned Counsel for the appellants that a holistic approach is required to be made by the Court while considering the alleged statements recorded under Section 67 of the Act of the concerned accused. It was submitted that if the statements recorded under Section 67 of the Act are excluded from the evidence led on behalf of the prosecution, the substratum of prosecution case would be lost and the accused would be entitled for the benefits thereof.
Section 67 of the Act for ready reference can be extracted as under :-
67. Power to call for information, etc.- Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act,--
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case.
The Apex Court in the case of Kanhaiyalal v. Union of India, reported in (2008) 4 SCC, 668, had an occasion to consider the question on admissibility of the statements recorded under Section 67 of N.T.P.S. Act. It was observed, inter alia, at paragraphs 41 to 45 as under :-
41. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002, and TADA Act, 1987, are much more stringent and excludes from its purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.
42. Of course, this Court has also held in Pon Adithan case (supra) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence.
43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava#s case (supra). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence.
44. In addition to the above, in the case of Raj Kumar Karwal v. Union of India and others (1990) 2 SCC 409, this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not #police officers# within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view.
45. Considering the provisions of Section 67 of the N.D.P.S. Act and the views expressed by this Court in Raj Kumar Karwal#s case (supra), with which we agree, that an officer vested with the powers of an Officer-in-Charge of a Police Station under Section 53 of the above Act is not a #Police Officer# within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the N.D.P.S. Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the N.D.P.S. Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.
It is an admitted position that the Officers of NCB in the present case have recorded the statements. They are not the Police Officers within the meaning of Section 25 of the Evidence Act. Therefore, the statement made under Section 67 of N.D.P.S. Act is not the same as the statements made under Section 161 of Cr.P.C., unless made under threat or coercion. The statements under Section 67 of the Act could be used as confession against the persons making it and it excludes the application of the provisions of Sections 24 to 27 of the Evidence Act.
Therefore, confessional statements made by all the accused in the present case are admissible in evidence.
The attempt to contend that such statements were not voluntary or were under any threat or compulsion, even if considered, would not result into discarding of the confessional statements, but in such circumstances the Court may consider the corroborative evidence to such statements. Be it noted that corroboration of the confessional statements is not a requirement under law, but is on the principles of reasonable prudence, if the court finds that there was any atmosphere of threat or compulsion prevailing at the time when such statements were recorded. At this stage, we may also refer to the Division Bench decision of this Court in the case of Najmunisha, wife of Abdul Hamid Chandmiya @ Ladoo v. State of Gujarat, reported in 2009 (3) GLR, 1982 and more particularly the observations made at paragraph 25 of the said judgement, the relevant part of which reads as under :-
Now while appreciating the evidence on record, what is established is this that, on 10th of December, 1999, the secret information was received by PW-2 Krishnaben Vinaykumar Chaube, Intelligence Officer, which was communicated in the office including Zonal Director Mr. Tomar. Mr. Tomar directed every one to come at Income Tax Circle in the morning at 6 O'clock on 11th of December, 1999. Thereafter, on the said day i.e. on 11th of December, 1999, they all gathered and panchas were called. There is some discrepancy about calling of panchas, but it is of no consequence at all, as we have discussed above. What is found is truthful version from PW-1 Bhimsing Kanchansing Mina, Panch, about the incident, which contains the ring of truth. Panch has been extensively cross-examined as afore-stated, but nothing is brought out by the defence to disbelieve this witness. All the officers have remained specific about the surveillance have been put at the cross roads near Gandhi Road on the right side of Shapur Gate and on the road coming from towards Kalupur Station. PW-4 Mr. Upendra Patel with one sepoy was standing with his motorbike near Shapur Gate. On the opposite direction PW-2 Mrs. Krishna Chaube stood with one sepoy and the panchas and other Intelligence Officers and the sepois were in the jeep of NCB at the end of Gandhi Bridge. It is also established beyond doubt that the auto rickshaw bearing Registration No. GJ-9-T-2355 coming from towards Shahpur Darwaja was attempted to halt by PW-4 Mr. Upendra Patel. The said auto rickshaw did not stop and rushed ahead consciously that raiding party was trying to stop the rickshaw. After escaping journey of the rickshaw and chasing by the raiding party, ultimately, rickshaw was stopped near the house of accused No.4 and driver and the accused No.4 abandoned on the rickshaw. It is also established beyond doubt from the evidence that accused No.4 was well identified by the raiding party though Mrs. Krishna Chaube had not found vehicle and she reached at the spot on calling by Mr. Tomar. It is also proved beyond doubt that the members of the raiding party, who were on motorbike, on account of bike, which was drifted, got some injuries. The gesture on the part of accused No.4 and the said rikshaw driver establishes the conduct incriminating accused No.4. The seizure of muddamal to the extent of 2.200 kgs of charas has been proved through the evidence of PW-1, PW-2, PW-3 and PW-4 and nothing is suspicious even remotely about this. Thereafter, it is also proved beyond doubt that the raid in the house of accused No.4 followed, and as stated by witnesses PW-1, PW-2, PW-3 and PW-4, charas of the quantity of 2.98 kgs was found and seized from the possession of accused No.1. The contradiction as to from where the rickshaw came in the evidence of panch witness is of no consequence as ultimately it has been established with voluminous evidence that rickshaw was abandoned near the house of accused No.4. Preliminary testing of the bulk of charas found was done and it was ascertained that substance was charas. The way in which the incident has occurred and the story proceeds give credence to the prosecution case as had the case been cooked up against the accused, the Officers might have gone straightway to the house of accused No.4 and might have seized the charas. All the mandatory provisions of the NDPS Act are proved to have been complied with. All the witnesses are consistent about the chasing of the rickshaw and the finding of muddamal of charas. All the witnesses are also consistent and credit-worthy as to the presence of accused No.1 at the house when the house was searched, who had identified herself as the wife of Abdul Hamid Chandmiya. It has been proved beyond doubt that she had been offered the search of officers present and that of the panch. She was also informed that if she desired, she could be searched in presence of Executive Magistrate or the Gazetted Officer. Behind a tin container in the house, which was in control of accused No.1, from a jute plastic bag, meant for cement, contained bulk of charas, which was found and, hence, examining the case from all angles, it is found that, there is not a single pin point loophole to come to the conclusion that the present appellants were involved in a false case and that the officers of NCB, including PW-1 Panch Bhimsing Kanchansing Mina, had some enmity or grudge against this accused to plant this bulk of charas in rickshaw and house to involve them falsely.
It is to be observed that when an officer records statements under Section 67 of the Act, in exercise of his official duty, the presumption would be under Section 114 of the Evidence Act, at least to the extent that a judicial access has been regularly performed and, therefore, no Courts should support to appreciate the evidence with presumption that such statements must have been elicited by giving threats or inducement to the persons concerned, unless these categoric circumstances are proved from the evidence against presumption. It was futher observed in the very paragraph that when the statement under Section 67 of N.D.P.S. Act is recorded it becomes very important piece of evidence and if it is found from the scrutiny that the statement is voluntary, it is a formidable evidence against the accused. It must be noted that when the matter is looked upon from other angle, one more presumption should be raised that each person, whether he or she is accused or not, is bound to give true version of fact in issue when they are summoned by the authorities to state, so as empowered by the law. It is the duty implicitly cast upon the person called upon to give information to the officers that whatever they say is true.
The learned Counsel for the appellants did rely upon certain observations of the Apex Court in the case of Union of India v. Bal Mukund and Ors., reported in (2009) 12 SCC, 161 for contending that the holistic approach is required to be made by the Court when the conviction is solely based on his confession as made by he learned trial Judge in the present case.
The pertinent aspect is that the Apex Court, in the said decision, has not taken any different view than as was expressed by it in the case of Kanhaiyalal v. Union of India (Supra). The another aspect is that the Apex Court, in that case, was considering the matter against the judgement of acquittal delivered by the High Court, wherein the consideration and yardstick would be different than that of hearing the appeal against the order of conviction. The Apex Court in the said decision further had recorded at paragraph 16 that no explanation was offered as to why mandatory requirement for compliance to the provisions of Section 42 was not made. The Apex Court had further found that if the accused there were interrogated while in custody, it cannot be said that there was any voluntary statements made. It is in this light of the fact situation the observations made by he Apex Court are required to be considered.
If the facts of the present case are examined, as observed earlier, it is undisputed position that the confessional statements are recorded under Section 67 of the Act and such are admissible in evidence. Further the presumption as such would be for considering such statements as valid as having been recorded in the official capacity by the officers of NCB. It is also an admitted position that prior to the arrest the statements have been recorded. No evidence has come on record to show that the statements were recorded under threat or duress or that they were not voluntary. The application for retraction of the confessions made by the accused is not proved during the trial, so as to dilute the evidentiary value of the confessional statements. The another aspect is that in the evidence of the witnesses examined namely Shailendra Lodha (PW-1) (Ex.29), who recorded the statement of A-1 at Ex.34, A-2 at Ex.35, A-3 at Ex.36, A-4 at Ex.37 and the further statement of A-1 at Ex. 39, the futher statement of A-2 at Ex.40, the further statement of A-3 at Ex.41, the further statement of A-4 at Ex.42 and the additional statement of A-1 at Ex.57, no evidence has come on record to show from their testimony that any threat or coercion existed at the time when such statements were recorded. In the same manner, in the deposition of Shri Umesh Pathak (PW-4) (Ex. 114), in the statements recorded of A-5 (Ex.123 and 124) and in the statements recorded of the wife of A-5 (Ex.126) and in the statements recorded of A-6 (Ex.131), it has not come out that there was any threat or coercion applied by the said officer for extracting or compelling A-5 or the wife of A-5 or A-6 to record such statements. Under these circumstances, in absence of any material and reliable evidence, it is not possible for this Court to accept the contention that the statement recorded under Section 67 of the accused or the wife of A-5 cannot be considered in evidence for tracing the guilt of the concerned accused.
Apart from the above, even if the corroboration is to be traced in light of the confession made by A-1, the Charas is found from the conscious possession of A-1 and A-2 as well as from A-5. The same is coupled with the evidence came on record for the talk over the telephone between the accused, the panchnamas of seizure of the psychotropic substance, FSL report confirming the same as narcotic substance and the other evidences connected therewith including the use of vehicles, and the money realized by the concerned accused and the amount found from A-5 including the investment made by him. Therefore, it is not a case where there is absolutely no corroboration to the confessional statements, but it does appear that the statement recorded under Section 67 of the Act are corroborated by the other material and reliable evidence led by the prosecution.
In view of the above, the contention raised by the learned Counsel for the accused-appellants for excluding the confessional statements from the evidence led by the prosecution fails.
Much grievance was raised by the learned Counsel appearing for the concerned accused A-1 and A-2, by contending that the vehicle was at Surat and the bill was also sanctioned for such purpose. It was, therefore, submitted that the case of the prosecution that the vehicle was used for search and seizure at Narol could be said as falsified of its own record and, therefore, the accused would be entitled to the benefits thereof.
The examination of the aforesaid contention shows that in the log book Ex.67 on 29.9.2001, there is already an entry for use of the vehicle to Aslali (the place at which the raid was carried out) and back. Therefore, the said evidence is supporting the case of the prosecution. However, the alleged petrol bill of Surat is also dated 29.9.2001, which has come on record at Ex.70. If the same is considered in light of the deposition of the concerned witness Shri Pavansing G. Tomar (PW-7) (Ex. 197), he did submit admit the sanctioning of the bill, but he has stated that the same is by mistake. It deserves to be recorded that normally when the bills are produced before the sanctioning authority for conveyance, it is required for the sanctioning authority to examine the same, but such a microscopic examination for each and every bill, even if considered, the witness has stated that the same is by mistake. No other evidence has come on record to support the defence of the accused concerned that the vehicle, in fact, was at Surat at the time when the raid was carried out and not at Ahmedabad. In any case, the bill does not stipulate the time at which the petrol was purchased and the bill was issued. The time of the raid, even if considered, in the morning hours, up to noon time, then also it is not an impossible situation that the vehicle could not have reached to Surat on the same day prior to 12 O'clock night. Therefore, the existence of the bill or the sanction by mistake as per the deposition of the witness and in absence of any other reliable material evidence coming on record to show that the vehicle in fact, was at Surat at the time when the raid was carried out, it is not possible to conclude that such would be fatal to the case of the prosecution and the accused would be entitled to the benefits thereof. Therefore, the said contention of the learned Counsel for the concerned accused deserves to be rejected.
It was next contended by the learned Counsel appearing for all the appellants accused that there is no conspiracy proved, nor abatement proved as per Section 29 of NDPC Act.
It was next contended by the learned counsel for the appellants-accused that there is no sufficient material available on record on the aspects of conspiracy, therefore, the conviction is based on without sufficient material of conspiracy. The Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra) had an occasion to consider the said aspects and at para 97 to 101, the Apex Court observed thus -
97. Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini's case (supra) at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." G.N. Ray, J. in Tanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this Court should not allow the suspicion to take the place of legal proof.
98. As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC 665], " in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." In this context, the observations in the case Noor Mohammad Yusuf Momin vs. State of Maharashtra (AIR 1971 SC 885) are worth nothing:
"[I]in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
99. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. [vide Esher Singh vs. State of A.P., 2004 (11) SCC 585]. Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR 1945 PC 140), the Privy Council warned that in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. "A co-defendant in a conspiracy trial", observed Jackson, J, "occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
[vide Alvin Krumlewitch vs. United States of America, (93 L.Ed. 790).
In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. vs. Falcone (109 F. 2d,579) was referred to:
"This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders."
At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows:
"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
101. One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict."
Therefore, in light of the cumulative effect of the circumstances, if considered, with the contentions and the statements recorded under Section 67 of the Act of all the accused, the material found from the possession of A-1, A-2 and A-5, the cash seized, it is clear that there is, inter se, agreement of mind between all the accused, not only to deal in drug trafficking business, but they have been doing it since for a long time and it is on account of the said conspiracy to continue with the drug trafficking in the Society, the narcotic substance was brought and was to be sold, though prohibited under law. Therefore, it is not possible to accept the contention of the learned Counsel for the accused that there was no conspiracy or abatement as proved by the prosecution. Therefore, the said contention fails.
INDIVIDUAL CONTENTIONS :-
It was next contended by the learned Counsel appearing for A-1 that the defence on behalf of A-1 had examined Shri Balaji Gourju (PW-12) (Ex.237) for showing the presence of A-1 on duty up to 25th September, 2001. It was, therefore, submitted that it is not possible for any person to reach Ahmedabad on 29th September, 2001 in the early morning, if he starts driving the truck from Kashmir to Ahmedabad. It was, therefore, submitted that if the said evidence is considered, it could be said that the story of the prosecution for involvement of A-1 is falsified and as per the defence A-1 is wrongly planted in the alleged offence.
Section 103 of the Evidence Act relevant at this stage reads as under :-
103. Burden of proof as to particular fact. - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
It deserve to be recorded that for proving the alibi so as to frustrate the case of the prosecution the burden lies upon the accused to show the circumstances beyond reasonable doubt. It is only after the burden is discharged by the accused beyond reasonable doubt, the same can be considered together with the case of the prosecution. Such evidence cannot be considered so as to create doubt in the case of the prosecution on a mere examination of any witness, but the evidence so led has to be of a proved fact beyond reasonable doubt, which may frustrate the evidence led by the prosecution. The degree of proof in case of proving the alibi would be the same as required for the prosecution in proving the guilt of the accused. The examination of the facts of the present case in light of the aforesaid shows that the evidence of the witness of A-1 at the most may be considered for the proof of the presence recorded in the presence register, but no other witness has been examined to show that A-1 was actually present on duty and he had discharged the duty on that day. Further, even if it is considered for the sake of examination that A-1 was present on duty up to 25th September, 2001, then also it has not come on record about the time at which had started driving the vehicle. In any case, it is not impossible for a driver of the truck to reach Ahmedabad on 29th September, 2001, if the driving is continuous and if one starts after duty hours on 25th itself. Under these circumstances, it is neither possible to hold that the burden of proving the alibi was discharged as per the requirement of law by A-1, nor the same can be said sufficient to frustrate the evidence led by the prosecution for the presence of A-1 on 29th Morning at the time when the raid was carried out. Hence, the said contention deserves to be rejected.
It was next contended by the learned Counsel appearing for A-2 that the evidence of Hasinabanu Gulam Muhmad Ganai DW-1 (Ex. 208), Mahmad Faruk Abdul Karim Ludaniya DW-2 (Ex. 209), Hasanali Kadarmiya Diwan DW-3 (Ex. 210), Sabbirbhai Y. Begwala DW-4 (Ex. 211) and Pravinchandra T. Gajjar DW-8 (Ex.219) would show that A-2 has been wrongly planted by NCB Officers and the same would frustrate the case of the prosecution. In our view applying the same yardstick as observed earlier in the evidence led by A-1, upon the appreciation and reappreciation, it is not possible to accept the contention as sought to be canvassed by the learned Counsel appearing for A-2. As such, the burden is not fully discharged, nor the same is sufficient to frustrate the case of the prosecution on the basis of unimpeachable evidence led by the prosecution not only for involvement of A-2 by the confessional statement, but also by the material of narcotic substance found from the conscious possession of A-2, therefore, the said contention deserves to be rejected.
It was next contended by the learned Counsel appearing for A-4 that in view of the deposition of its witness, Nazmin Iqbalbhai Ansari DW-5 (Ex.214), Aiyub G. Shaikh DW-6 (Ex.217), Allahrakha M. Arab DW-7 (Ex.218), Ganibhai Rasulbhai Mansuri DW-9 (Ex.223), Sureshbhai M. Rathwa Dw-10 (Ex. 228), and Bharatbhai Dungarsinhbhai Lakhtariya DW-11 (Ex. 229) would go to show that A-4 has been wrongly planted by NCB Officer in the alleged offence.
We have gone through the evidence on record of the aforesaid witnesses. It is not possible for us to conclude that the burden of proving the alibi was discharged, nor is it possible for us to consider such evidence as sufficient to frustrate the case of the prosecution against A-4 on the basis of unimpeachable evidence coming on record for the confessional statements of A-4 as well as the involvement in the business of drug trafficking of A-4, therefore, the said contention of the learned Counsel fails.
It was next contended by the learned Counsel appearing for A-6 that nothing was recovered from the possession of A-6, therefore, A-6 would be entitled for the acquittal. In furtherance to the submission it was also contended by the learned Counsel that the alleged confessional statement was under coercion and duress and not in free atmosphere, therefore, the same may not be used against A-6. It was contended that the statement was retracted by A-6 and the learned Counsel at the time of hearing tendered a copy of the application alleged to have been submitted before the Chief Judicial Magistrate.
As such the statement of retraction is not a part of record in the paper book, which has been considered by us. Further, the pertinent aspect is that even if the said application of retraction is to be considered, it bears no date, nor any order passed by the learned Magistrate. Under these circumstances, it is not possible for us to accept the contention that the statement was retracted and/or if retracted well in time by A-6. In any case, even if the alleged retraction is considered, then also, as stated above, there is sufficient reliable evidence coming on record for direct involvement of A-6 in the trafficking of narcotic substance i.e. Charas, which was found in possession of A-5. Therefore, the contention raised by the learned Counsel for A-6 does not deserve to be accepted.
The learned Counsel appearing for A-2 raised the contention that normally the panchnamas for seizure should have been prepared at the place of the offence and there was no valid reason for not preparing the panchnamas at the place of raid. He contended that non-preparation of the panchnamas at the place of the raid would vitiate the procedure of seizure, therefore, the accused would be entitled to the benefits of the same.
The contention deserves to be examined in light of the evidence on record. Shailendra Lodha, NCB Officer (PW-1) (Ex. 29) in his deposition has stated that after positive result on testing at site, as the place was a public place and was with heavy traffic and no electronic weighing machine was available and if there is vibration, the weighing machine would not show the correct weight, therefore, it was decided that the further seizing and sampling procedure should be conducted in the office. Therefore, it is not a matter where no sufficient explanation has come on record. Not only that, but in the panchanamas (Ex.91), it was expressly recorded that the place was on the National Highway, therefore, it was not possible for taking the weight of the material and hence, 14 packets were handed over to panchas. It was also stated in the panchnamas that the truck is loaded with apples. Therefore, it was not possible to take the search of the truck and hence, ultimately all proceeded towards NCB Office. Such evidence goes to show that there is sufficient explanation and does not create doubt about the manner and method of conducting seizure by the NCB Officers on the ground as sought to be canvassed. Hence, the said contention fails.
It was next contended by the learned Counsel Mr.Naik for A-2 that the panchas should have been of the same locality where the search was carried out, but the panchas were either working in the same office or working in the Income Tax Department, therefore, it was submitted that the case of the prosecution should not be believed by the Court and the accused would be entitled to the benefits.
It is not a sine qua non that the panch must be of the same locality. It is for the defence to put forward the case of concoction of panchas and in absence thereof, un-contradicted evidence which has come on record of panchas cannot be discarded. Further, working in the office of any Government Organization would not disqualify the persons from acting as a panch, unless the accused in the defence has been able to show that there was any animosity with the accused by the said panch witness from whom the truth cannot be expected. Therefore, the said contention raised by Mr.Naik deserves to be rejected.
It was next contended by the learned Counsel Mr.Naik for the appellant A-2 that the recording of the statement under Section 313 is in stereotype manner without raising separate question, therefore, the mandatory procedure has not been followed at the time of trial. Hence, the final verdict can be said as vitiated.
We have considered the statements recorded of all the accused under Section 313 by showing the incriminating material against them. The pertinent aspect is that the evidence was common and in majority the incriminating material is also common, since as per the prosecution there was also charge of abatement and criminal conspiracy as provided under Section 29 of the Act. If there is charge under Section 29 of the Act of abatement and criminal conspiracy, incriminating material against all the accused is required to be put while recording the statements under Section 313 of Cr.P.C., and that was so done by the learned Trial Judge, therefore, there is no illegality as sought to be canvassed by the learned Counsel. Hence, the said contention cannot be accepted.
The contention raised by the learned Counsel appearing for the wife of A-5, to the extent of assailing the order of confiscation of the items, which were found from the possession of A-5 namely; the FDRs and KVPs in the name of the wife of A-5 deserves consideration. Section 62 of the Act reads as under:-
62.Confiscation of sale proceeds of illicit drugs or substances.62. Confiscation of sale proceeds of illicit drugs or substances. Where any narcotic drug or psychotropic substance is sold by a person having knowledge or reason to believe that the drug or substance is liable to confiscation under this Act, the sale proceeds thereof shall also be liable to confiscation.
As such there is also an express provision provided under the Act for confiscation of the narcotic drugs or psychotropic substance or the controlled substance, but it also provides for the enabling power to confiscate the sale proceeds thereof and once the evidence is proved, the sale proceeds of such narcotic/psychotropic substance is also liable to be confiscated Section 452 of Cr. P.C., and Section 454 of Cr. P.C., which are relevant for the purpose of this issue read as under:-
452. Order for disposal of property at conclusion of trial.
When an inquiry or trial in any Criminal Court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond with or without sureties, to the satisfaction of the court, engaging to restore such property to the court if the order made under subsection (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
454. Appeal against orders under section 452 or section 453.
Any person aggrieved by an order made by a court under section 452 or section 453, may appeal against it to the court to which appeals ordinarily lie from convictions by the former court.
(2) On such appeal, the Appellate Court may direct the order to be stayed pending disposal of the appeal, or may modify, alter or annul the order and make any further orders that may be just.
(3) The powers referred to in sub-section (2) may also be exercised by a court of appeal, confirmation or revision while dealing with the case in which the order referred to in sub-section (1) was made.
As such no claim was made by the wife of A-5 before the trial Court. Further, at the time when the further statement of A-5 under Section 313 of Cr.P.C., was recorded, he had not claimed that the muddamal recovered including the FDRs and KVPs were not belonging to him but were belonging to his wife. As per the statement recorded under Section 67 of the Act of A-5 as well as the wife of A-5 the money was earned also out of the sale of drugs and the said amount was invested in the name of the wife of A-5. As per the record all items; cash, FDRs and KVPs were seized as muddamal and the same was also reported to the trial Court. Under these circumstances, in absence of any claim lodged by A-5 or the wife of A-5, either by separate application or in further statement under Section 313, it could be said that the learned Trial Judge was justified in passing the order of confiscation. However, two fact situations arise for consideration in the present case; one is that before A-5 could be held guilty by the learned Judge he had expired. Therefore, the case abated against him, though for all purpose the guilt is traced by the trial Judge of A-5 for involvement in the alleged offences, but the fact remains that accused A-5 could not be convicted, since he had expired prior to the passing of the final judgement and order. The second circumstance is that all the FDRs and KVPs are not in the name of A-5, but are also in the name of the wife of A-5. The wife of A-5 is not arrayed as accused in the case. Therefore, she could be said to be a third party, who may have interest in such FDRs and KVPs.
It was contended by the learned Counsel for the wife of A-5 that the present claim though is not raised before the trial Court could be raised before the appellate Court by the wife of A-5, since the appeal is a continuous proceeding. It was submitted that this Court may consider the claim and may direct for return of cash, FDRs and KVPs to the wife of A-5. The learned Counsel restricted such prayer for these items only and did not claim for return of the narcotic substance, which was recovered and seized from the possession of A-5.
It appears to us that as such the learned Judge has not made any observations or discussions on the aspects of confiscation of the cash amount and FDRs/KVPs. So far as the cash amount is concerned, if the matter is examined in light of the provisions of Section 62 of the Act read with the confessional statements of A-5, it has been proved that the sale proceeds are realised from the sale of narcotic substance. Therefore, all amounts in the hands of A-5 being the sale proceeds of narcotic substance were liable to be confiscated and rightly confiscated by the learned trial Judge. However, so far as FDRs and KVPs in the name of the wife of A-5 is concerned, since she was not the accused in the trial, it would be required to examine as to whether such amount, though realized from the sale of narcotic substance will attract the forfeiture if in the hands of the person, who is not arrayed as accused in the case. Further, the aspects may also be required to be considered by the Court as to whether the nature of title of the property of FDRs and KVPs would remain the same, if the husband, out of the sale of narcotic substance has given away the amount to his wife. It has also not come on record as to whether the amount was given away by A-5 to his wife as his own property retaining his claim over the amount or was gifted as sthreedhan or otherwise. It has come on record in the confessional statements of the wife of A-5 that they have other property including the agricultural land. Therefore, it will have to be examined as to whether the amount of FDRs and KVPs are formed part of any lawful income of agriculture or rental income or not. It is only after such full-fledged inquiry is undertaken by giving opportunity to the concerned parties, it can be concluded as to whether such KVPs and FDRs are liable to be confiscated or not or that the same is required to be returned to the holder of KVPs and FDRs namely; the wife of A-5 or not. As no inquiry whatsoever has been held, we find that order passed by the learned trial Judge confiscating of the muddamal deserves to be modified to the extent of confiscation of KVPs and FDRs standing in the name of the wife of A-5, but the order passed by the learned trial Judge for confiscation of the cash amount and FDRs/KVPs standing in the name of A-5, if any, does not deserve to be interfered with.
It was lastly contended by the learned Counsel for A-1 to A-4 and A-6 that the punishment imposed by the trial Court is life-imprisonment, whereas as per the provisions of the Act, the maximum punishment is 20 years. It was submitted that the learned trial Judge has committed grave error in imposing sentence of life-imprisonment and it was also submitted that considering the facts and circumstances, the punishment deserves to be imposed would be less than 20 years, keeping in view the age and family circumstances that the accused concerned.
If the provisions of Section 20(C) of the Act is considered, it does appear that the maximum punishment is 20 years with the fine of not less than Rs.1 lac (Rupees one lac). It is true that the huge quantity of narcotic substance i.e. Charas is not only found in conscious possession of A-1, A-2, A-5, but considering the facts and circumstances, it appears to us that it is not a case where the punishment deserves to be imposed less than the maximum punishment upon each of the accused. If in such a serious offence of drug trafficking in huge quantity, the maximum punishment is not imposed, the purpose of the Act and the deterrent effect would be frustrated. However, even if maximum punishment is considered, it will not be the imprisonment for life, but would be 20 years. Therefore, the conviction imposed by the learned trial Judge upon A1 to A-4 and A-6 deserves to be modified.
On the aspects of consideration of the confessional statements, it is well settled that if the same can be considered as the material evidence for tracing the guilt of the accused, who has given confessional statements provided the Court is satisfied about the voluntariness of the confessional statements, but at the same time such confessional statements can also be considered together with the other evidence for trading the guilt of the co-accused, but in such circumstances, there should be existence of other evidence. The reference may be made to the decision of the Apex Court in the case of Bhana Khalpabhai Patel v. Assistant Collector of Customs, Bulsar and Anr., reported in 1998(2) GLR, 1319 and more particularly the observations made at paragraph 5 of the said decisions.
If the matter is examined in light of the aforesaid and on reappreciation of evidence, it does appear that there is no breach of the provisions of Sections 42 and 43 of the Act. Further, there is also no illegality in the procedure of search and seizure. The statements recorded under Section 67 of the Act have been rightly found to be admissible in the evidence in support of the case of the prosecution. It further appears that the conscious possession of huge narcotic substance found from A-1, A-2 and A-5. The conjoint reading of the statements recorded under Section 67 of the Act read with the other material evidence coming on record in the testimony of the witnesses examined by the prosecution, it appears that the accused were regularly dealing in drug trafficking business. The learned Special Judge has rightly found that the charge of abatement and conspiracy is also proved. It appears to us that the learned Special Judge has rightly found A-1 to A-4 as well as A-6 guilty for the offence under Sections 8(C) and 20(B) read with Section 29 of the Act. The guilt and conviction could also be recorded of A-5, however, but for the fact that A-5 had expired after recording of the statements under Section 313 of Cr.P.C., the same is not recorded of A-5.
In view of the aforesaid, the conviction recorded by the learned Special Judge of A-1 to A-4 and A-6 deserves to be modified to the extent that the sentence shall be of 20 years and the order for imposition of sentence for life shall stand modified to the extent of imprisonment for 20 years. The other part of the order for imposition of fine does not deserve to be interfered with. So far as the order for confiscation of muddamal is concerned, in view of the observations made hereinabove, the cash amount recovered from A-5 and the FDRs/KVPs in the name of A-5 shall stand confiscated and the order passed by the learned Special Judge is not required to be interfered with, however, so far as the FDRs and KVPs in the name of the wife of A-5 is concerned, the order passed by the learned Special Judge for forfeiture is modified to the effect that a separate inquiry shall be held by the learned Special Judge on the aspect of forfeiture in light of the observations made by this Court in the present judgement and at the outcome of the inquiry the appropriate orders shall be passed for confiscation and/or the entrustment of the said FDRs or KVPs to the person entitled for the same at the conclusion of the inquiry by the learned Special Judge. The opportunity of leading evidence and of hearing to the wife of A-5 as well as the prosecution/NCB Department, if they are so desirous, to lead the evidence shall be given by the learned Special Judge. The aforesaid inquiry shall be completed preferably within a period of six months from the date of receipt of the order of this Court. The judgement and order of the learned Special Judge shall stand modified to the aforesaid extent. The Appeals are allowed to the aforesaid extent. The R & Ps be sent back to the trial Court.
After the pronouncement of the order, Mr.Dharmesh Patel for Mr.Shethna, learned Counsel for Appellant A-6 states that A-6 is on regular bail and he prays for time to surrender may be granted to A-6, since he would be desirous to go before the higher forum. Considering the facts and circumstances, A-6 shall surrender on or before 16th July, 2010.