Abdul vs 2 Criminal on 27 January, 2010

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CR.A/718/2007	 41/ 75	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 718 of 2007
 

With


 

CRIMINAL
APPEAL No. 994 of 2007
 

With


 

CRIMINAL
APPEAL No. 1440 of 2008
 

 


 

For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI  
			AND
 

HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
 
 
=========================================================

1

Whether
Reporters of Local Papers may be allowed to see the judgment ?

2

To
be referred to the Reporter or not ?

3

Whether
their Lordships wish to see the fair copy of the judgment ?

4

Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?

5

Whether
it is to be circulated to the civil judge ?

=========================================================

ABDUL
SALIM ABDUL MUNAF SHAIKH ALIAS SALIMBHAI & 1 – Appellant(s)

Versus

NARCOTICS
CONTROL BUREAU & 1 – Opponent(s)

=========================================================

Appearance :

MR
DJ BHATT for
Appellant(s) : 1 – 2.

MR KT DAVE for Opponent(s) : 1,
MR DEVANG
VYAS, ADDL.PUBLIC PROSECUTOR for Opponent(s) :
2,
=========================================================

CORAM
:

HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI

and

HONOURABLE
MR.JUSTICE J.C.UPADHYAYA

Date
: 27/01/2010

ORAL
COMMON JUDGMENT

(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)

These
three Criminal Appeals arise out of a judgment and order rendered by
learned Addl.Sessions Judge, 2nd
Fast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1 of
2003. In Special NDPS Case No.1 of 2003, five accused persons,
namely, Ketan @ Kanabhai Somabhai Patel, Habibkhan Usmankhan Pathan,
Abdul Salim Abdul Munaf Shaikh @ Salimbhai, Nituben Abdul Salim
Abdul Munaf Shaikh and Smt.Naseebbanu Yusufbhai Pathan came to be
tried for the offences punishable under Sections 8(c), 20(b)(ii)(c),
25 read with Section 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 ( NDPS Act , for short). At the end of the
trial, the accused No.1 Ketan @ Kanabhai Somabhai Patel, accused
No.2 Habibkhan Usmankhan Pathan, accused No.3 Abdul Salim Abdul
Munaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul Salim Abdul
Munaf Shaikh came to be convicted for the offences punishable under
Sections 8(c), 20(b)(ii)(c), 25 read with Section 29 of the NDPS Act
and each of them was sentenced to undergo R.I of ten years and fine
of Rs.1 Lac each and in default of payment of fine, S.I for one
year. Moreover, the accused No.3 Abdul Salim Abdul Munaf Shaikh
@ Salimbhai, accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh and
accused No.5 Smt.Naseebbanu Yusufbhai Pathan came to be convicted
for the offences punishable under Sections 8(c), 20(b)(ii)(b), 25
read with Section 29 of the NDPS Act and each of them was sentenced
to undergo R.I for seven years and fine of Rs.50000/- each and in
default of payment of fine, S.I for one year. The sentences of
imprisonment were ordered to run concurrently.

1.1 Original
accused No.2 Habibkhan Usmankhan Pathan filed Criminal Appeal No.11
of 2007 challenging the impugned judgment and order rendered by the
trial Court. However, during the pendency of said appeal, Habibkhan
Usmankhan Pathan expired, and, therefore, Criminal Appeal No.11 of
2007 stood abated.

1.2 Criminal
Appeal No.718 of 2007 is preferred by original accused No.3 Abdul
Salim Abdul Munaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul
Salim Abdul Munaf Shaikh; Criminal Appeal No.994 of 2007 is
preferred by original accused No.1 Ketan @ Kanabhai Somabhai Patel
and Criminal Appeal No.1440 of 2008 is preferred by original accused
No.5 Smt.Naseebbanu Yusufbhai Pathan under Section 374 of the
Criminal Procedure Code ( Cr.P.C. , for
short) challenging their conviction and sentence recorded by the
trial Court.

Mr.Sahajanand
Sachidanand Singh, serving as Intelligence Officer, Narcotic Control
Bureau, Ahmedabad ( NCB, Ahmedabad , for short) on or about
dated 23.5.2002 received a secret information to the effect that the
accused No.1 Ketan @ Kanabhai Somabhai Patel resident of 101,
Chitrakoot Apartment, Navsari dealing in contraband substance Charas
was to receive large quantity of Charas at his residence, and
thereupon, the secret information which Mr.S.S.Singh received at
about 10.30 am in the morning on 23.5.2002 came to be reduced into
writing by him and the copy of the same was forwarded to his
immediate superior Officer. Pursuant to such information, it was
decided to conduct raid at Navsari. On 26.5.2002, during night
hours, Intelligence Officer Mr.S.S.Singh, Intelligence Officers
Mr.Vikram Ratnoo, Mr.Pavansinh Gajesinh Tomar and Mr.Umesh
Jayantkumar Pathak left Ahmedabad for Navsari, and at Navsari they
stayed in circuit house. On next day, i.e. on dated 27.5.2002,
during early morning hours at 7 am, two Panchas, namely, Hormez
Firoz Avari and Mukesh Shankarrao Gole were called. They were
apprised about the secret information received by Intelligence
Officer Mr.Singh. Preliminary panchnama was drawn in the circuit
house. Thereafter all the above referred Intelligence Officers along
with two Panchas and Police Officers went to the house of the
accused No.1 Ketan Patel. It is the prosecution case that in the
house of accused No.1 Ketan Patel along with him, accused No.3 Abdul
Salim @ Salimbhai and one absconding accused Mahmad Ramzan Kaliyari
@ Ramzanbhai were found present. The Officers apprised them with the
secret information received in this case and expressed their
intention about the search and seizure. It is further the
prosecution case that the accused were also apprised of their right
of search to be conducted in presence of Gazetted Officer or any
Magistrate, to which the accused stated that they have no objection
if the search is conducted by the members of the raiding party.
During the course of their personal search, nothing objectionable
was found out. However, when his house was searched, from the room
of the house, four packets containing contraband substance Charas
came to be found. It is further the prosecution case that since the
room was very small, and, therefore, it was decided that the
weighing, packing and sealing etc. of the muddamal should be done at
circuit house. In the house of the accused No.1 Ketan Patel, after
concluding the panchnama containing search, seizure and recovery
part of the contraband substance, the members of the raiding party
along with Panchas and the above-referred three accused came to the
circuit house, Navsari, where the contraband substance was weighed.
The gross weight turned out to be 13 kgs. and 295 gm. However, the
net weight turned out to be 12 kgs. and 899 gm. Samples were
collected and were packed and sealed. Final part of the panchnama
regarding drawing, weighing, sealing and packing of the samples and
the remaining part of Charas was drawn in the circuit house. It is
further the prosecution case that Intelligence Officer Mr.Singh
recorded statements of accused No.1 Ketan Patel, accused No.3 Abdul
Salim @ Salimbhai and the absconding accused Mahmad Ramzan under
Section 67 of the NDPS Act. During the course of recording of
statements, it transpired that out of the 13 kgs. Of Charas, accused
No.3 Abdul Salim @ Salimbhai had come to the house of accused No.1
Ketan Patel to collect 4 Kg. of Charas and accused No.2 Habibkhan
Pathan, resident of Baroda was to be sold 9 kgs. of Charas. From the
statement of accused No.3 Abdul Salim @ Salimbhai, it was further
revealed that he himself and his wife accused No.4 Nituben, who were
residing at Ahmedabad, were dealing in contraband substance like
Charas and accused No.3 Abdul Salim @ Salimbhai used to purchase
Charas from accused No.1 Ketan Patel and the Charas to accused No.1
Ketan Patel was supplied by absconding accused Mahmad Ramzan. Upon
receipt of such information, through the statements recorded under
Section 67 of the NDPS Act, a message was conveyed to Intelligence
Officer, Ahmedabad Mr.S.J.Lodha and upon receipt of such message,
Mr.S.J.Lodha called two Panchas, namely, Harshad Jadavji and Hitesh
Doliwad and at about 1.30 pm on 27.5.2002, Mr.S.J.Lodha together
with other Officers of NCB and the above named two Panchas left
their NCB office and went to the house No.B/31/Kubernagar, Ahmedabad
and the accused No.4 Nituben along with one aged lady and one boy
came to be found present in the house. She was informed about the
secret information and she was also informed that the search was
required to be conducted. She was apprised of her right to have the
search conducted in presence of Gazetted Officer or any Magistrate,
to which she stated that she had no objection if the search was
conducted by the Officer of the NCB. Though from her personal
search, nothing objectionable was found, but, from the house Charas
came to be found, its gross weight was found to be 550 gm. and the
net weight found to be 523 gm. Samples were collected from the
Charas and same were duly packed and sealed. Panchnama to that
effect was drawn which was signed by Panchas and the Intelligence
Officer Mr.Lodha.

2.1 Samples
collected from Navsari and from Ahmedabad were sent to FSL as well
as CRCL, Delhi. The reports of FSL and CRCL, Delhi revealed that the
samples contained contraband substance Charas.

2.2 Intelligence
Officer Mr.Ratnoo lodged criminal complaint against the appellants
herein as well as against the co-accused on dated 28.11.2002 in the
Court of learned CJM, Navsari. Since the offence was exclusively
triable by the Special Court (Court of Sessions), the learned CJM,
Navsari committed the case to the Special Court, Navsari, which was
registered as Special NDPS Case No.1 of 2003.

The
learned trial Judge framed charge against all the accused including
the appellants original accused Nos.1, 3, 4 and 5 to which they
did not plead guilty and claimed to be tried. Thereupon, the
prosecution adduced its oral and documentary evidence. The
prosecution examined seven witnesses and produced relevant
documentary evidence. After the prosecution concluded its oral
evidence, the learned trial Judge recorded further statements of the
accused persons, including appellants accused under Section 313 of
the Cr.P.C. and the appellants accused in their further statements
denied generally all the incriminating circumstances put to them by
the trial Court and stated that they were falsely implicated in this
case. They have expressed their desire to examine the defence
witnesses. Thereupon the defence witnesses, namely, D.M.Valvi and
Rameshbhai Buddhabhai were examined. However, before the defence
witnesses were examined, the appellant accused preferred an
application, Exh.255, requesting the trial Court to examine the FSL
witnesses as Court witnesses. Said application was allowed and FSL
witnesses Rajeshkumar Mehta and Jan Mahmad Fakirbhai Mansuri were
examined.

3.1 After
considering the evidence on record and the submissions made on
behalf of both the sides, the learned trial Judge came to the
conclusion that the offence committed in Ahmedabad well as at
Navsari were part and parcel of the same transaction and the outcome
of the same conspiracy hatched by the accused. The trial Court
further came to the conclusion that the prosecution successfully
proved its case beyond any reasonable doubt on the basis of the
recovery of large quantity of contraband substance as well as on the
basis of the statements of the accused recorded under Section 67 of
the NDPS Act. The trial Court ultimately, recorded the conviction of
the appellants accused and awarded the sentence as hereinabove
referred to in this judgment, which has given rise to the
above-referred three criminal appeals.

We
have heard the submissions made by learned advocate Mr.R.M.Agrawal
and learned advocate Mr.D.J.Bhatt for the appellants original
accused Nos.1,3,4 and 5 and we have heard the submissions of learned
advocate Mr.K.T.Dave for the respondent NCB and learned A.P.P.
Mr.Devang Vyas for respondent State of Gujarat.

On
behalf of the appellants accused, it is submitted that the clubbing
of two different offences, namely, the alleged recovery of Charas in
Navsari and alleged recovery of Charas in Ahmedabad and to try all
these different offences together, under one trial at Navsari, has
caused prejudice in the defence of the accused. As a mater of fact,
both are different and distinct offences and should have been tried
separately.

5.1 It
is further submitted that the original accused Nos.1, 2, 3 and 4
came to be convicted for the offence of recovery of Charas at
Navsari and original accused Nos.3, 4 and 5 also came to be
convicted for the offence relating to recovery of Charas at
Ahmedabad. It is, therefore, submitted that if the trial Court
intended to consider all the offences arising out of the same
transaction and in furtherance of the common conspiracy, then the
conviction of original accused Nos.3 and 4 recorded twice i.e. for
the offence which took place at Navsari and for the offence which
took place at Ahmedabad is bad in law. It is, therefore, submitted
that for the same offence, the original accused Nos.3 and 4 are
convicted twice.

5.2 It
is submitted on behalf of the appellants accused that as per the
evidence of the prosecution, at the time when the raid was effected
at the house of the accused No.1, only the accused No.3 and
absconding accused Mahmad Ramzan along with accused No.1 were
present. Admittedly, the prosecution did not adduce any evidence to
show that the house wherein the raid was carried out, at Navsari,
was either owned by the accused No.1 Ketan Patel or that it was in
his exclusive possession. Moreover, admittedly, the house was not
either owned or possessed by appellant accused No.3 Abdul Salim @
Salimbhai. Therefore, it is submitted that the prosecution failed to
prove that the appellants accused Nos.1 and 3 were in conscious
possession of the Charas. That admittedly, at Navsari, accused Nos.4
and 5 were not present, yet, for Navsari offence, accused No.4 is
held responsible.

5.3 It
is further submitted that considering the letters signed by
Intelligence Officer Mr.Vikram Ratnoo addressed to FSL, Exhs.172 and
174, there is a difference of weight about the contraband substance
allegedly recovered at Ahmedabad. It is further submitted that so
far as the recovery of contraband at Navsari is concerned, Panch
Hormez in his evidence submits that the total weight of the
contraband Charas was about 12 kgs. whereas as per the prosecution
case, it is 13 kgs. and 295 gm. It is therefore, submitted that the
discrepancy about the contraband substance is fatal to the case of
the prosecution.

5.4 It
is further submitted that as per the CRCL report, the purity of THC
in the Charas allegedly recovered from Ahmedabad is 4.1% and it is
3.7% of purity of the Charas recovered from Navsari. In this
connection, CRCL reports Exhs.184 and 185 were pressed into service.
Accordingly, it is submitted that if the total weight of the
contraband substance is considered, in light of the percentage of
purity, it comes to the limit of small quantity. It is, therefore,
submitted that alternatively, if the prosecution case is believed to
be true, and if it is held that the prosecution successfully
establishes the involvement of the accused in this offence, then the
offence which can be said to have been committed is pertaining to
the small quantity, and as per Section 20(b)(ii)(a) of the NDPS Act,
the maximum sentence prescribed is six months imprisonment or with
fine which may extend to Rs.10000/-. Therefore, it is submitted that
in the instant case, the appellants have undergone more sentence
than what is prescribed for small quantity and accordingly, the
appeals may be allowed.

5.5 It
is further submitted that considering the alleged recovery of
contraband substance Charas from Navsari, as per the prosecution
case, the weighing, packing and sealing of the samples etc. were
undertaken at circuit house, though the contraband Charas was
allegedly recovered from the house of the accused No.1 Ketan Patel.
Drawing our attention to the evidence of Panch Hormez, it is
submitted that the measurement of the room in circuit house and the
measurement of the room of the house of the accused No.1 Ketan Patel
is almost identical. Thus, the very act of the NCB Officers in
carrying out the weighing, sampling and sealing of the contraband
Charas at circuit house is doubtful. As per the NCB guidelines, the
seizure, search, recovery of contraband substance and its weighing,
sealing and packing should have been made at one place and that
place should be the place from where the recovery was made.

5.6 On
behalf of the appellants – original accused, it was strenuously
alleged that no reliance can be placed upon the so-called statements
of the appellants allegedly recorded under Section 67 of the NDPS
Act. It is submitted that though on paper their arrest is shown to
be at later point of time, but at the time when the statements were
allegedly recorded, they were in custody of the NCB Officers. Thus,
no reliance can be placed upon the statements recorded while the
appellants were in custody of the NCB Officers. It is further
submitted that the statements allegedly recorded under Section 67 of
the NDPS Act are outcome of coercion, threat, undue influence and
promise. It is submitted that there is no dispute that appellants,
barring appellant original accused No.5 Smt.Nassebbanu Yusufkhan
Pathan, retracted their confessional statements at the time when
their further statements were recorded under Section 313 of the
Cr.P.C. Further, the appellant original accused No.5 Smt.Nassebbanu
had sent writing from jail alleging that her statement was recorded
after adopting coercive tactics by the Officers of the NCB.

5.7 About
the statements recorded under Section 67 of the Act, it is submitted
that the conviction cannot be recorded solely on the basis of the
bare statement. The statement is required to be corroborated by
other evidence on record. It is further submitted that in the
instant case, so far as appellant accused No.1 Ketan Patel is
concerned, nothing is recovered by the NCB Officers, which would
suggest that the house from where the contraband Charas came to be
recovered was either owned by him or that he was either tenant in
the premises or that it was in his exclusive possession. So far as
the appellant accused No.3 Abdul Salim @ Salimbhai is concerned,
admittedly, the house from where the contraband Charas came to be
recovered, was not either owned or possessed by him. Even if the
prosecution case as it stands is believed, that at the time of
search and seizure, he was found in the company of accused No.1
Ketan Patel in his house, thereby it cannot be said that the
contraband Charas allegedly found from the house was within his
conscious possession. Accused No.3 Abdul Salim @ Salimbhai is also
convicted for the offence of possession of contraband substance
Charas, which was recovered from Ahmedabad. Admittedly at the time
when the raid was conducted at Ahmedabad, he was already under
arrest in connection with Navsari offence and was in custody of the
NCB Officers. So far as the appellant accused No.4 Nituben wife of
Abdul Salim @ Salimbhai is concerned, admittedly at the time when
the NCB Officers raided the house of the accused No.1 Ketan Patel at
Navsari, she was not present in the house. She was in her house at
Ahmedabad. There is no nexus whatsoever between the contraband
substance Charas allegedly recovered at Navsari and allegedly
recovered at Ahmedabad. Their quality etc. are totally different.
Admittedly, the NCB Officers did not collect any material to show
that the house from which the contraband substance Charas was
recovered at Ahmedabad was either owned or belonged to accused No.4
Nituben. So far as the appellant accused No.5 Smt.Naseebbanu is
concerned, admittedly, she was not present at Navsari, when the
house of accused No.1 Ketan Patel was raided, she was even not
present in the house of appellant accused No.4 Nituben, when her
house was raided. Nothing was recovered from the house of appellant
accused No.5 Smt.Naseebbanu. That, thus, the bare statements without
any support of corroborative evidence cannot be considered as
substantive piece of evidence to base the conviction.

5.8 About
the appellant accused No.4 Nituben, it is further submitted on
behalf of the appellants that as emerged from the seizure panchnama,
at the time when the raid was carried out in her house at Ahmedabad,
over and above herself, one lady Chayaben and one male member were
present. Despite this, prosecution booked only the respondent
accused No.4 Nituben in connection with this offence.

5.9 About
the Navsari raid, on behalf of the appellants, it is submitted that
as per the prosecution case, the Charas allegedly recovered was
weighing about 12 kgs. The appellant accused No.3 Abdul Salim @
Salimbhai had come to the house of the appellant accused No.1 Ketan
to buy Charas weighing about 4 kgs. as per the prosecution case,
yet, no money was found from his possession which was sufficient
towards the payment of consideration. That, thus, the prosecution
case that the accused No.3 Abdul Salim @ Salimbhai had come to the
house of accused No.1 Ketan Patel for the purpose of purchasing 4
kgs. of Charas cannot be accepted. Even as per the prosecution case,
no delivery of Charas weighing 4 kgs. was made by accused No.1 Ketan
Patel to accused No.3 Abdul Salim @ Salimbhai at the time when the
raid was conducted.

5.10 On
behalf of the appellants it is submitted that as per the prosecution
case, more number of persons are involved in the alleged conspiracy
and trafficing of Charas, yet, out of them, only the appellants are
booked by the prosecution.

5.11 It
is further submitted that the prosecution is supposed to prove that
the contraband substance recovered is Charas. In the instant case,
the prosecution failed to prove that the substance recovered is
Charas as defined under the NDPS Act.

5.12 It
is submitted that the manner of recording the further statements of
the appellants under Section 313 of the Cr.P.C. is faulty. Almost
identical questions were put to all the appellants accused and
identical replies were incorporated in the statements. That, thus,
the said examination is not in confirmity with law and the same is
against the purpose of enacting Section 313 of the Cr.P.C.

5.13 Assailing
the impugned judgment and order rendered by the trial Court, on
behalf of the appellants, it is submitted that the trial Court erred
in holding that the prosecution case is proved by taking resort to
the presumptions contained under Section 35 and Section 54 of the
NDPS Act. That the trial Court misread the provisions regarding the
presumptions, and there cannot be a presumption of guilt under
Section 35 and Section 54 of the NDPS Act. Basic facts are required
to be proved by the prosecution. If the prosecution proves beyond
reasonable doubt that the contraband substance was in the exclusive
and conscious possession of the appellants, then only the necessity
to draw the presumption contained under Section 35 and Section 54 of
the NDPS Act would arise. In the instant case, the prosecution
failed to prove the basic facts and, therefore, trial Court
committed error in arriving at the conclusion that the guilt of the
appellant accused is very well established on the basis of such
presumptions.

5.14 Learned
advocates Mr.Agrawal and learned advocate Mr.Bhatt for the
appellants relied upon certain judgments delivered by the Hon’ble
the Apex Court, which shall be discussed in this judgment at
relevant place. Ultimately, it is submitted that these appeals may
be allowed and the judgment and order rendered by the trial Court be
set-aside and the appellants accused be acquitted of all the
charges levelled against them.

Learned
advocate Mr.Dave for the respondent NCB and learned A.P.P., Mr.Vyas,
for the respondent State vehemently opposed these appeals. It is
submitted that the trial Court rightly appreciated the evidence on
record and rightly came to the conclusion that the prosecution
successfully proved its case beyond any reasonable doubt. The trial
Court rightly conducted the single trial in connection with the
recovery of Charas effected at Navsari as well as recovery of Charas
effected at Ahmedabad. Our attention was drawn to Sections 178 and
223 of the Cr.P.C. as well as Sections 25 and 29 of the NDPS Act
read with Section 8(c) of the NDPS Act. It is submitted that the
recovery of contraband substance Charas from the house of appellant
No.1 at Navsari and from the house of appellant No.4 from Ahmedabad
is part and parcel of same transaction and conspiracy. In
furtherance of the conspiracy and the same transaction, the offences
at Navsari and at Ahmedabad were committed. That, therefore, the
trial Court rightly undertook the exercise of common trial and
rightly recorded the conviction of the appellants.

6.1 It
is submitted that the prosecution furnished clear and cogent
evidence in the form of FSL report as well as considering the oral
evidence of FSL Officers, it is clearly established that the
contraband substance recovered from Navsari and from Ahmedabad is
Charas as defined under Section 2(iii) of the NDPS Act. That
considering the definition of ‘Cannabis(Hemp)’ defined under the
NDPS Act and considering the overall evidence on record, it clearly
transpires that the THC percentage can never be the decisive factor
to come to the conclusion that the substance is ‘Cannabis(Hemp)’or
not as defined under the NDPS Act. No minimum percentage of THC is
suggested in the definition, whereas in the case of opium as defined
under Section 2(xv) of the NDPS Act, it is clearly provided in the
definition of opium that the substance cannot be termed as opium, if
it does not include any preparation containing not more than 0.2% of
morphine. No such rider is there in the definition of
‘Cannabis(Hemp)’ defined under Section 2(iii) of the NDPS Act.
Moreover, it is submitted that the contraband substance Charas is a
natural substance and not a manufactured drug. Nothing emerges from
the evidence on record that the Charas was blended with any neutral
substance. Therefore, it is submitted that the contention regarding
the purity test raised by the appellants, is not required to be
considered. The trial Court, therefore, rightly recorded conviction
of the appellants accused No.1, 3 and 4 for the possession of Charas
of commercial quantity and rightly recorded the conviction of
appellants accused No.3, 4 and 5 for possession of intermediate
quantity of Charas. The contention, therefore, raised on behalf of
the appellants that the appellants should have been convicted
regarding the small quantity cannot be considered.

6.2 About
the statements recorded under Section 67 of the NDPS Act, on behalf
of the respondents it is submitted that the trial Court rightly
relied upon those statements. Nothing emerges from the record that
the statements were outcome of any coercion, threat or promise
administered by any of the NCB Officers to the appellants. The
appellants accused No.1, 3 and 4 during the course of entire trial
did not make any attempt to retract the confessional statements.
Their statements were recorded before their arrest. After the
recording of those statements, ultimately, they were arrested. There
is no dispute that so far as appellant accused No.5 Smt.Naseebbanu
is concerned, she had sent a writing through jail stating her
intention to retract the confession, but, thereafter, nothing was
done on her part to support her allegation that her confessional
statement was outcome of any coercion. It is submitted that all the
four appellants accused were produced before concerned Judicial
Magistrate First Class within 24 hours after recording of their
confessional statements under Section 67 of the NDPS Act and none of
them made any complaint of ill-treatment against any of the NCB
Officers and none of them stated before the concerned Judicial
Magistrate First Class that their statements were recorded under
coercion. That the statement of appellant accused No.1 Ketan Patel
was recorded by PW-1 Mr.S.S.Singh, Intelligence Officer, the
statement of accused No.3 Abdul Salim @ Salimbhai was recorded by
the same Intelligence Officer Mr.Singh, statement of appellant
accused No.4 Nituben was recorded by Intelligence Officer Mr.Lodha,
examined as PW-3 and the statement of appellant accused No.5
Smt.Naseebbanu was recorded by the Intelligence Officer Mr.Lodha.
The Officers who recorded the confessional statements have been
examined as witnesses in this case by the prosecution and
considering their evidence, it is duly established that the
statements of the appellants were voluntarily made and that they
were free from any coercion or undue influence or promise. It is
further submitted that mere fact that at the time when their
statements were recorded, they were in custody of NCB Officers,
cannot be considered that they were under any detention after
arrest. The appellants were duly summoned by the NCB Officers and
thereafter, their statements were recorded. Before recording the
statements, the appellants were informed that they were not bound to
make any statement and that their statements may be used against
them and against other persons.

6.3 It
is further submitted that though no corroboration is required to the
statements recorded under Section 67 of the NDPS Act, but, in the
instant case, statements of the appellants are corroborated by the
evidence of the recovery of contraband article Charas as well as the
evidence of NCB Officers and Panchas examined in this case.

6.4 On
behalf of the respondents, it is submitted that as emerged from the
evidence on record, entire transaction was on credit basis. The
appellants were knowing each other and the evidence suggests that
the payment was made through Angadia. Therefore, mere fact that at
the time of personal search of the appellants, no sufficient money
was recovered, which would have been sufficient to meet with the
price of the Charas, that itself cannot be considered to be a ground
to disbelieve the entire case of the prosecution considering the
peculiar facts and circumstances of this case and the evidence on
record.

6.5 It
is submitted that as a matter of fact there is no discrepancy in
weight of the contraband substance, which would render the entire
prosecution case a suspicious one. It is further submitted that
throughout the trial, the muddamal was kept available before the
trial Court and considering the evidence of the material witnesses
examined by the prosecution, it clearly transpires that the packets
containing the samples etc. were shown to them and they identified
the muddamal.

6.6 About
the further statements recorded under Section 313 of the Cr.P.C., it
is submitted that no illegality or any irregularity is committed by
the trial Court in recording the further statements of the
appellants. Nothing is suggested that any incriminating evidence
used by the trial Court for recording the conviction was missed by
the trial Court while recording the further statements of the
appellants . The incriminating evidence used by the trial Court
while recording the conviction was put to the appellants in their
further statements recorded under Section 313 of the Cr.P.C.

6.7 On
behalf of the respondents it is submitted that this being the first
appeal wherein question of law and question of fact can be
considered and in that perspective, the statements of the appellants
recorded u/s.67 of the NDPS Act need to be appreciated, coupled with
the fact that even during the course of hearing of these appeals, no
ground is made out to come to the conclusion that the statements are
outcome of any coercion, threat or any promise.

6.8 Learned
advocate, Mr.Dave, for the respondent NCB and learned A.P.P.,
Mr.Vyas, for the respondent State of Gujarat, referring to the
provision contained under Section 8(c) of the NDPS Act submitted
that to produce, manufacture, possess, sale, purchase, transport,
warehouse, use, consume, import interstate, export interstate,
import into India, export from India or tranship in narcotic drug or
psychotropic substance is expressly prohibited and the contravention
so far as Charas is concerned, is made punishable under Section 20
of the NDPS Act. Our attention was drawn to Section 25 of the NDPS
Act wherein any person who is owner or occupier or having the
control or use of any house, room etc. knowingly permits it to be
used for the commission of offence punishable under this Act is made
punishable under Section 25 of the Act. Our attention was drawn to
Section 29 of the Act which pertains to punishment for abetment and
criminal conspiracy. In Sub-section 1 of Section 29 of the Act, it
is clearly provided that ‘whoever abets or is a party to a criminal
conspiracy to commit an offence punishable under this Chapter,
shall, whether such offence be or be not committed in consequence
of such abetment or in pursuance of such criminal conspiracy,
and not withstanding anything contained in Section 116 of the Indian
Penal Code, be punishable with the punishment provided for the
offence. (emphasis
supplied). Therefore, it is submitted that considering
the facts and circumstances of the case and evidence on record, the
trial Court rightly came to the conclusion that all the appellants
accused are guilty of the offences punishable under Sections 20, 25
r/w. Section 29 of the NDPS Act.

6.9 Learned
advocate, Mr.Dave, for the respondent NCB and learned A.P.P.,
Mr.Vyas, for the respondent State relied upon certain judgments
rendered by Hon’ble the Apex Court which shall be discussed in this
judgment at relevant time. Ultimately, it is submitted that these
three criminal appeals may be dismissed.

We
have examined the record and proceedings in context with the
submissions made by the rival sides.

At
the outset, as emerged from the evidence on record, the Intelligence
Officer NCB, Mr.Singh on 23.5.2002 received a secret information
while he was in his office at Ahmedabad. Considering the evidence of
PW-1 Mr.Singh, Exh.41, at about 10.30 a.m. in the morning, he
received the information on telephone that in the house of accused
No.1 Ketan Patel situated at 101, Chitrakoot Apartment, Kadiawad,
Navsari, Charas is stored and that said Ketan Patel is dealing in
Charas and within short period, he is to receive consignment of
Charas at his residence. Said information was reduced into writing
and was forwarded to his immediate superior. Exh.45 is the letter
and the information which Mr.Singh received, which was reduced into
writing by him was annexed with the letter, Exh.45. On this aspect
of the matter, on behalf of the appellants, it was submitted that
the prosecution should have produced the original writing containing
the information. Now, considering the provisions contained under
Section 42(2) of the NDPS Act, it is clearly provided that the
concerned Officer who received the information and which he has
reduced into writing, then he shall within 72 hours send a copy
thereof to his immediate superior Officer. Under such circumstances,
in the instant case, we are of the considered opinion that the
mandatory requirement laid down u/s.42 of the NDPS Act cannot be
said to have been violated. Moreover, in the case of Hamidbhai
Azambhai Malik Vs.State of Gujarat
reported in 2009(1) GLR 828,
Hon’ble the Apex Court discussing the provisions contained u/s.42 of
the NDPS Act, has observed that under Section 42(2), such
empowered officer who takes down any information in writing or
records the grounds under provisio to Sec.42(1) should forthwith
send a copy thereof to his immediate
official superior. If there is total non-compliance of
this provision the same affects the prosecution case. To that
extent, it is mandatory.

8.1 Thus,
in light of the evidence on record, it cannot be said that in the
instant case, there is total non-compliance of the mandatory
requirement laid down under Section 42 of the Act. As stated above,
considering the evidence of PW-1 Mr.Singh and the document, Exh.45,
in the case, the mandatory requirements are duly and fully complied
with.

Further
considering the evidence of Mr.Singh, it transpires that on
26.5.2002, he himself and other Officers of the NCB left Ahmedabad
for Navsari and they reached Navsari at about 10 p.m. on 26.5.2002
and they stayed in Navsari circuit house. On behalf of the
appellants, it was submitted that the defence has examined defence
witness Dattubhai Valvi at Exh.270 and according to his evidence, at
the relevant time, Mr.Valvi was serving as Clerk in Navsari circuit
house and he has produced the extract of register containing the
names of the guests in the circuit house and nothing emerges that
the two rooms, namely, room No.7 and room No.8 in the circuit house
were booked either in the name of Intelligence Officer NCB Mr.Singh
or in the name of any the Intelligence Officer. We have carefully
gone through the evidence
of Mr.Valvi recorded at Exh.270 and
the extract of guest register, Exhs.271, 272 and 273. Apparently, it
is clear that, in the register, name of Mr.Singh or the name of any
Intelligence Officer NCB, Ahmedabad does not figure out. Mr.Valvi in
his cross-examination, clearly admits that the primary duty to make
entries in the register is of his manager. However, he is serving as
clerk and only in the absence of Manager, sometimes, he performs the
duty to post necessary entries in the register. He further admits
that he may not be present at the time when all the entries in the
register were posted. Moreover, it has come on record that from
26.5.2002 till 29.5.2002 room Nos.7 and 8 were booked in the name of
Mr.N.V.Chauhan PSI (ATS) and from 26.5.2002 to 29.5.2002 said rooms
were occupied by NCB Officer Mr.Singh and other Officers of the
raiding party.

9.1 Further
considering the evidence of PW-1 Mr.Singh, on 27.5.2002, at about 6
a.m. in the morning, two Panchas, namely, Hormez Avari and Mukesh
Shankarrao Gole were called in the circuit house. They were apprised
about the secret information, and the raid at the residence of
accused No.1 Mr.Ketan Patel was arranged. In his evidence, he
narrated the entire facts regarding the raid. According to him, he
himself, along with other Officers of the raiding party
and Panchas as well as local Police Officer went to 101,
Chitrakoot Apartment, Kadiawad, Navsari after drawing preliminary
panchnama in the circuit house. Accused No.1 Ketan Patel opened the
door and in the room of the house, two more persons were found
seated and they were accused No.3 Abdul Salim @ Salimbhai and
absconding accused Mahmad Ramzan. Officers of the raiding party
introduced themselves to the trio and apprised them about the
information which was received. The accused Nos.1 and 3 as well as
the absconding accused Mahmad Ramzan were apprised that search was
required to be conducted and if the search is required to be
conducted in presence of any Gazetted Officer or Magistrate, then
the accused have option, to which they stated that the Officers of
the raiding party can carry on the raid. The personal search of the
accused persons was conducted, but nothing objectionable was found.
Thereafter, the room was searched and four packets were found out.
Upon field testing, it was found that each packet contained Charas.
Though on behalf of the appellants, attempt was made to suggest that
provisions contained under Section 50 of the NDPS Act have not been
duly complied with. However, considering the evidence of Mr.Singh,
the mandatory requirements laid down u/s.50 of the NDPS Act have
been duly and fully complied with. Moreover,
considering the case of Megh Singh Vs.State of Punjab
(2003)8 SCC 666, Hon’ble Apex
Court discussing the mandatory requirements laid down u/s.50 of the
NDPS Act has observed that the applicability of Section 50 of the
NDPS Act arises only in case of personal search of a person. But,
where the accused was found to be in possession of gunny bags, the
search of such bags did not attract Section 50 . In the instant
case, the contraband substance Charas was found from one attach?,
which was lying in the room. No objectionable substance was found
from the person of any of the three accused persons. However, as
stated above, despite this, in the instant case, the requirements
under Section 50 of the NDPS Act have been duly and fully complied
with.

Moreover,
considering the evidence of PW-1 Mr.Singh, it transpires that during
the search conducted in the room, the attach? containing four
packets of Charas was found. The next procedure which was required
to be carried out was to weigh the substance, preparation of samples
and the packing and sealing of samples and packing and sealing of
remaining contraband material. Mr.Singh deposed that the room was
small enough to carry out the remaining procedure and, therefore,
with the consent of the accused, they came back to circuit house,
Navsari. In the circuit house in room Nos.7 and 8, weighment of
Charas was made and gross weight of the substance was found to be 13
kgs. and 295 gm. whereas the net weight was 12 kg. and 899 gm. The
samples were collected and were packed, sealed, and affixed the
slips containing signatures of the Panchas.

10.1 On
behalf of the appellants, it was vehemently argued that the sealing
and packing of samples etc. should have been done at the place from
where the contraband substance Charas was found. According to them,
the substance should have been weighed in the room from where it was
found and the remaining procedure about collection of samples,
packing and sealing etc. should have been done in 101, Chitrakoot
Apartment, Navsari. It was vehemently submitted that thus the
standing instruction of NCB regarding collection of sample etc. have
been violated. Our attention was drawn to the case of Khet
Singh Vs.State of Union of India reported
in AIR 2002 SC 1450.

In paragraph 10 of said judgment, Hon’ble the Apex Court has
observed that the instructions issued by the NCB, New Delhi are
to be followed by the officers of the investigation of the crimes
coming within the purview of the NDPS Act, even though these
instructions do not have the force of law . It is observed that
it is true that when a contraband article is seized during
investigation or search, a seizure mahazar
should be prepared at the spot in accordance with law.
There may, however, be circumstances in which it would not have been
possible for the officer to prepare the mahazar at the spot, as it
may be a chance recovery and the officer may not have the facility
to prepare a seizure mahazar at the spot itself. In that event,
where the seizure mahazar is prepared at a later stage, the officer
should indicate his reasons as to why he had not prepared the
mahazar at the spot of recovery. There cannot be any dispute
regarding the principles established by Hon’ble Apex Court in this
respect. However, in the instant case, considering the evidence of
PW-1 Mr.Singh, he has assigned reasons as to why the packing and
sealing procedure was not conducted in the house of the accused No.1
Ketan Patel and why after conducting the search and seizure in the
house of accused No.1 Ketan Patel, it was decided that the
subsequent procedure should be conducted in circuit house, Navsari.
The reason assigned by Mr.Singh is that considering the size of the
room, they thought it fit to carry out the subsequent procedure in
the circuit house. According to him, in that respect, the accused
also consented. In this connection, if the panchnama, Exh.52 is
considered, it is clearly stated that after search and seizure was
conducted, it was decided to carry out further process regarding
weighment of the contraband substance, the collection
of samples, their packing etc. in circuit house, Navsari. Moreover,
in this connection, if the evidence of Panch Hormez Firoz, PW-2
examined at Exh.125 is considered, he categorically supports the
contents of the panchnama, Exh.52. According to him, from the
attach? lying in the room, the four packets of Charas were found
out. He further deposed that since the house of the accused No.1
Ketan Patel was small, and, therefore, Officers of the raiding party
decided to carry out the task of sampling, sealing etc. in circuit
house, Navsari. He further deposed that for that purpose, accused
gave their consent. In this regard, if the evidence of Officers of
the raiding party, namely, PW-5 Mr.Vikram Ratnoo, examined at
Exh.158 and Mr.U.J.Pathak PW-7, examined at Exh.218 is considered,
they also categorically corroborated the evidence of PW-1 Mr.Singh
in all material particulars. Moreover, we will discuss about the
statements of the accused recorded under Section 67 of the NDPS Act
and their evidential value in detail in this judgment later on, but
at this juncture, considering the statement of accused No.1 Ketan
Patel, recorded u/s.67 of the NDPS Act, produced at Exh.59, he
stated that at the time when his house was searched, his mother had
gone to meet his mother’s sister and
he requested that his house may be locked and the key may
be handed over to his neighbour before leaving the house for circuit
house, so that his mother may not know about the illegal activity he
was doing in the house. Thus, according to his statement, the mother
of accused No.1 Ketan Patel was to arrive at any time and his mother
was not knowing about the illegal activity he was doing, and,
therefore, he requested that before going to circuit house, his
house may be locked and the key may be handed over to his neighbour
so that his mother may not be shocked. This aspect is also required
to be considered as to why the Officers after seizure of the
contraband substance from his house decided to perform other
formalities not in the house itself, but in circuit house, Navsari.

Therefore,
in the instant case, we do not find any reason to come to the
conclusion that since the contraband substance Charas was not
weighed at the place from where it was seized and the other
procedure, namely, collection of samples, their packing and sealing
etc. was not carried out at the place of the seizure, that would
render entire prosecution case a doubtful one. We do not find any
reason to come to the conclusion that any procedural illegality or
irregularity have been committed by the Officers of the raiding
party in this respect.

Considering
the evidence on record, it clearly transpires that NCB Officer PW-1
Mr.Singh recorded the statement of accused No.1 Ketan Patel on
27.5.2002, which is produced at Exh.59, he also recorded the
statement of accused No.3 Abdul Salim @ Salmibhai on 27.5.2002,
which is produce at Exh.58. Considering the evidence of NCB Officers
examined in this case and the statements, Exhs.58 and 59, it was
revealed that accused No.3 Abdul Salim @ Salimbhai had come to the
house of accused No.1 Ketan Patel to collect 4 kgs. of Charas. It
was further revealed that 9 kgs. Of Charas was to be delivered to
accused No.2 Habibkhan Pathan (now deceased) at Vadodara. So far as
accused No.3 Abdul Salim @ Salimbhai is concerned, it was further
revealed that he was residing in Ahmedabad along with his wife
accused No.4 Nituben and both husband and wife were doing business
of selling Charas. The activity was conducted in his house at
Ahmedabad. Immediately, on 27.5.2002, said information was passed on
to Intelligence Officer Mr.Lodha at Ahmedabad. Considering the
evidence of PW-3 Mr.Lodha, examined at Exh.128, upon receipt of such
information, while he was in NCB Office, Ahmedabad, two Panchas,
namely, Harshad Jadavji and Hitesh Doliwad were called. The Panchas
were apprised about the information received and that the raid was
required to be conducted at B/31/Kubernagar, Ahmedabad. On 27.5.2002
at about 1.30 p.m. Mr.S.J.Lodha, other Officers of the NCB along
with the Panchas left the NCB office, Ahmedabad after preparing
preliminary panchnama, for B/31/Kubernagar, Ahmedabad. That reaching
to the place of the information, the accused No.4 Nituben Salimbhai,
wife of accused No.3 Abdul Salim @ Salimbhai was found in the
house. She was informed about the secret information received in
this behalf and she was further informed that the search was
required to be conducted and if she desires the search to be
conducted in presence of Gazetted Officer or Magistrate, then she
had the option, however, she did not opt for the same and stated
that the search could be conducted by the Officers of the NCB. From
the personal search, nothing objectionable was found, but there was
a cupboard in the room and from the cupboard, one parcel was found.
When the parcel was opened, a blackish green substance was found.
Conducting the field testing, it was found to be Charas. Gross
weight of Charas was 556 gm. and its net weight was 523 gm. Two
samples were collected and the same were duly packed and sealed.
Seizure panchnama, Exh.129 was drawn. The evidence of PW-3
Intelligence Officer Mr.Lodha, Exh.128 is duly corroborated in all
material particulars by the evidence of Panch PW-4 Harshad Jadavji,
examined at Exh.150 and the panchnama, Exh.129.

On
behalf of the appellant, it was strenuously submitted that the
prosecution miserably failed to prove a very important fact that the
premises at the Navsari from where four packets of Charas were
seized and the premises at Ahmedabad from where also Charas was
seized, were either owned by the accused No.1 Ketan Patel and
accused No.4 Nituben Salimbhai or that they were in exclusive
possession of the respective premises. However, in this respect,
considering the evidence of the NCB Officers and the Panchas, so far
as Navsari raid is concerned, it has come in evidence that at the
time when the raid was conducted in 101, Chitrakoot Apartment,
Kadiawad, Navsari, accused No.1 Ketan Patel was found in the house
and it was he who had opened the door. Considering the secret
information, Exh.45, it clearly transpires that the information was
containing the name of the accused No.1 Ketan Patel and that he was
to receive the consignment of Charas at his house 101, Chitrakoot
Apartment, Navsari. Moreover, in this respect, considering the
statement, Exh.59 of the accused No.1 Ketan Patel recorded u/s.67 of
the NDPS Act, it is explicitly stated that in the house, accused
No.1 Ketan Patel was residing and the same was used for storing the
contraband substance and the same was distributed from said house.

13.1 So
far as Ahmedabad raid is concerned, considering the evidence on
record, when the Officers of the raiding party along with Panchas
reached to the place of information i.e. B/31/Kubernagar, Ahmedabad,
accused No.4 Nituben, wife of accused No.3 Abdul Salim @ Salimbhai
was found in the house. Furthermore, in this respect, considering
the statement of accused No.3 Abdul Salim @ Salimbhai, Exh.58
recorded u/s.67 of the NDPS Act and the statement of accused No.4
Nituben, Exh.131, recorded u/s.67 of the NDPS Act, not only they
admitted the possession of the house in Ahmedabad, but, they stated
that they were doing the business of selling Charas in the house.
When such is the situation, we are of the considered opinion that
the prosecution successfully established the nexus between the
accused No.1 Ketan Patel and the house at Navsari and the nexus
between accused No.3 Abdul Salim @ Salimbhai and accused No.4
Nituben with the house in Ahmedabad. The contention, therefore,
raised on behalf of the appellants that the prosecution failed to
adduce any evidence to connect the accused persons with the
respective premises, deserves to be discarded.

However,
on behalf of the appellants, reliance was placed upon the case of Om
Prakash @ Baba Vs. State of Rajasthan, 2009 AIAR (Criminal) 818.
Considering the facts of the said case, the concerned Police
Officers had gone to the house of appellant Om Prakash not on the
basis of any prior information regarding any contraband substance
under the NDPS Act, but to arrest one accused, namely, Pankaj.
However, while conducting search in the house, huge quantity of
Charas, opium and Gaanja were recovered. Moreover in said case, a
prosecution witness PW-3 categorically deposed that the house from
where the contraband substances were recovered belonged to another
person and not the appellant Om Prakash. There was no evidence of
any exclusive ownership of Om Prakash of the house. Ultimately,
Hon’ble the Apex Court came to the conclusion that the ownership and
possession of the house and the place of recovery was uncertain.
Now, the facts of our case are totally different. As stated above in
our case, all the witnesses examined by the prosecution including
the Panchas categorically connected the respective accused with the
respective premises raided by them. Furthermore, in the instant
case, the raid was carried out pursuant to the clear and cogent
prior information connecting the respective accused with the
respective premises. Under such circumstances, as stated above, in
the instant case, the contention raised by the appellants that the
prosecution failed to establish their connection with the respective
premises deserves to be discarded.

As
stated above from the evidence on record, the purpose as to why at
the time of the raid accused No.3 Abdul Salim @ Salimbhai was found
in the house of accused No.1 Ketan Patel is duly established. On
behalf of the appellants a contention was raised that the accused
Nos.1 and 3 cannot be said to be in conscious possession of Charas
lying in the house at Navsari. To deal with this submission, as
stated above, at the time when the raid in Chitrakoot Apartment was
conducted, both the accused along with absconding accused Mahmed
Ramzan were found in the house. The evidence on record as well as
the statements recorded u/s.67 of the Act of the accused reveals
that the accused Nos.1 and 3 were not strangers to each other. In
past they had a transaction of Charas. However, on behalf of the
appellants, reliance was placed upon the case of A.K. Mehabood
Vs.Intelligence Officer, Narcotics Control Bureau (2001)10
SCC 203. Considering the facts of the said case, it reveals that
appellant Mehaboob was present in the house of co-accused Naushad
and at that time a raid was conducted in the house of co-accused
Naushad and 251 gm. of brown-sugar had been recovered, statements of
the accused u/s.67 of the NDPS Act were recorded. So far as the
appellant A.K.Mehaboob was concerned, his statement u/s.67 of the
NDPS Act, did not contain any incriminating material, which would
involve him either in a conspiracy or in an abetment for the
offences committed by the other accused. Moreover, from his
statement it was revealed that he was only informed by co-accused
Naushad that brown-sugar could be supplied to him and, therefore, he
went to the house of Naushad in response to that. Nothing revealed
that appellant Mehabood parted with any money as consideration of
the contraband article. Hon’ble the Apex Court further noted that
price of 1 kg. of brown-sugar ranges from Rs.75,000 to Rs.95,000/-.
It was observed that if the appellant Mehaboob had gone to purchase
it, it cannot be believed that he would have gone without any cash
with him. The facts of our case are totally different. The
statements of the accused recorded u/s.67 of the NDPS Act, in the
instant case, contained clear inculpatory materials. Moreover, in
the instant case, there is nothing that on 27.5.2002, when the
accused No.3 Abdul Salim @ Salimbhai was found in the house of the
accused No.1 Ketan Patel, that was the first meeting with Ketan. The
materials available on record reveals that in past there was
transaction of Charas between them. It is true that during the
personal search of accused No.3 Abdul Salim @ Salimbhai, small cash
amount was found. Considering the statement recorded u/s.67 of the
NDPS Act, it clearly reveals that the transaction was on credit. It
further reveals that, in past, amount of consideration was sent by
Angadia (carrier). Thus, the facts of the instant case are
completely different than the facts and circumstances and the
evidence on record in A.K. Mehaboob’s case.

On
behalf of the appellants it was urged that in the instant case, the
prosecution evidence reveals discrepancy in weight of the contraband
substance. In this respect, so far as Charas recovered from Navsari
is concerned, as per the oral evidence of NCB Officers and the
seizure panchnama, Exh.52, the gross weight of Charas was 13 kgs.
295 gm. and the net weight was 12 kgs. and 899 gm. However, Panch
PW-2, Hormez Firoj in his deposition, Exh.125 says that four packets
were seized, one packet was weighing approximately 980 gm., 2nd
packet was containing approximately 20 gm. to 25 gm. less than 4
kgs. and the 3rd packet contained approximately 3 kgs. of
Charas. Then he says that the total weight comes to approximately 13
kgs. He further deposed that the four packets contained in all 135
round shaped lumps (laddu). On behalf of the appellants it was
submitted that considering the evidence of Panch Hormez regarding
the weight of the contents of each packet, the total comes to about
12 kgs. Now, in this respect, as stated above, Panch PW-2 Hormez in
his evidence deposed about approximate weight of the contents of
each packet. As admitted by him, he signed the panchnama, Exh.52
wherein it is stated that the gross weight of contents of these four
packets was 13 kgs. and 295 gm. and the net weight was 12 kgs. and
899 gm. When such is the situation, we do not find any material
discrepancy about the weight in the oral evidence of Panch PW-2
Hormez and in the Panchnama, Exh.52.

16.1 About
Ahmedabad recovery, our attention was drawn to two communications,
Exhs.172 and 174 addressed to one witness Moin Bapu @ Gaande Bawa
of Ahmedabad dated 4.7.2002 and 26.7.2002 respectively by
Intelligence Officer PW-5 Vikram Ratnoo, examined at Exh.158. In his
communication Exh.172 dated 4.7.2002, it is stated that the
communication was pertaining to inquiry about the seizure of 536 gm.
of Charas from accused No.4 Nituben whereas in the communication
dated 26.7.2002, Exh.174, it is stated that it pertains to inquiry
about seizure of 556 gm. of Charas from accused No.4 Nituben. Now,
in this case, considering the seizure panchnama, Exh.129, drawn at
Ahmedabad in the residence of accused No.4 Nituben and the evidence
of Investigating Officer PW-3 Mr.Lodha examined at Exh.128, it
clearly transpires that upon weighment of Charas recovered from the
house of accused No.4 Nituben, it was transpired that its gross
weight was 556 gm. and net weight was 523 gm. In the communications
Exh.172 and 174, weight stated comes to 536 gm. and 556 gm.
respectively. Both the communications are effected by Intelligence
Officer Mr.Vikram Ratnoo. Vikram Ratnoo is PW-5, examined at Exh.158
and we have carefully considered his evidence and during his entire
cross-examined, nothing emerges that his attention was drawn to the
communications, Exhs.172 and 174 about the discrepancy in weight.
Moreover, the discrepancy in weight is well explained, if the
evidence of Intelligence Officer Mr.Lodha along with Exh.129
panchnama is considered.

16.2 On
behalf of the appellants reliance was placed upon the case of Rajesh
Jagdamba Avasthi Vs. State of Goa (2005)9 SCC 773. As per the
facts of said case, from the shoe of right foot of the accused 100
gm. of Charas was found which was sealed in envelope ‘A’, but when
the envelope ‘A’ was opened by FSL, the weight of the substance was
found out to be 98.16 gm. From the shoe of left foot of the accused,
115 gm. of Charas was found and the same was sealed in envelope ‘B’,
but when the envelope ‘B’ was opened, it was found that the weight
of the Charas was 82.54 gm. The High Court recorded conviction of
the accused regarding the possession of Charas of 100 gm., which was
sealed in envelope ‘A’ discarding the discrepancy in weight in
respect of the contents of the envelope ‘B’ is not considered.
Hon’ble Apex Court recording acquittal of the accused held that the
discrepancy in weight was not minor discrepancy. No explanation was
forthcoming from the evidence on record, regarding the discrepancy.
Now, the facts of our case are totally different. As a matter of
fact in the instant case, there may not be any material discrepancy
about the weight of the contraband substance. So far as Navsari raid
is concerned, in the oral evidence of Panch Hormez, he only stated
about the approximate weight of the Charas recovered from the house
of accused No.1 Ketan from Navsari. So far as Ahmedabad raid is
concerned, considering the communications Exhs.172 and 174 addressed
only to a witness by Intelligence Officer Vikram Ratnoo, the
discrepancy, if any, in the weight of the contraband substance
Charas recovered from the house of accused No.4 Nituben from
Ahmedabad pales into insignificance because the available evidence
on record reveals exact gross weight and exact net weight of the
Charas recovered from the house of accused No.4 Nituben.

On
behalf of the appellants relying upon the case of E.Micheal
Raj Vs.Intelligence Officer, Narcotics Control Bureau
reported in (2008)5 SCC
161 it was submitted
that in the instant case, as per the report of CRCL Delhi, Exh.184
regarding the purity of Charas allegedly recovered from the house of
accused No.4 Nituben, the THC percentage is assessed as 4.1% whereas
in the report, Exh.185 of the CRCL Delhi, the Charas allegedly
recovered from the house of accused No.1 Ketan contained THC
percentage of 3.7%. Therefore, it is submitted that if at all the
case of the prosecution is accepted, as it stands and the
involvement of the accused is established, yet, considering the
total weight of the contraband substance and the percentage of THC
arrived at by CRCL, Delhi, together with table contained in the
notification attached to the Act and especially considering the
Sr.No.23 pertaining to Charas, the small quantity is upto 100 gm.
and commercial quantity is above 1 kg. of Charas, and, therefore, it
is submitted that in the instant case, the trial Court should have
recorded the conviction keeping in mind the small quantity. It is,
therefore, submitted that about the small quantity, the sentence
prescribed under Section 20 of the Act is imprisonment for six
months or fine which may extend to Rs.10000/-

or with both. It is, therefore, submitted that the appellants have
already undergone more sentence than what was prescribed for
possession of small quantity. Now, in this respect, first of all
considering the definition of Cannabis (Hemp) contained under
Section 2(iii) of the NDPS Act about Charas, it is defined as the
separated resin, in whatever form, whether crude or purified,
obtained from the cannabis plant and also includes concentrated
preparation and resin known as hashish oil or liquid hashish .
Thus, in the instant case, contraband substance Charas was in its
natural form and was not a manufactured drug as defined in Section
2(xi) of Section 2 of the NDPS Act. In Charas, the separated resin
may be in any form, whether crude or purified. Furthermore, we have
considered the definition of opium defined under Section 2(xv)
of the Act and it is defined that the ‘opium’ means (a) the
coagulated juice of the opium poppy; and (b) any mixture, with or
without any neutral material, of the coagulated juice of the opium
poppy, but, does not include any preparation containing not more
than 0.2 percent of
morphine. Now, so far
as Charas is concerned, no fixed percentage of THC is prescribed in
the definition of Charas like the percentage of morphine prescribed
for opium. In this respect, considering the evidence
of FSL witness Mr. Jan Mahmad
Fakirbhai Mansuri, examined at Exh.263 in this case,
in his cross-examination, he has rightly opined that it is not
necessary for ascertaining whether a substance is Charas or not that
it should contain a specific percentage of THC. Moreover, in the
instant case, neither from the report of FSL nor from the report of
CRCL, Delhi, it is revealed that in the Charas recovered from
Navsari and from Ahmedabad, any neutral substance was mixed. Under
such circumstances, the contention raised on behalf of the
appellants that considering the percentage of THC, the quantity of
Charas falls within small quantity and, therefore, the appellants
should have been convicted accordingly for possession of the
contraband substance of small quantity is devoid of any merits.
Thus, the facts and circumstances and evidence on record in our case
are totally different from the facts and circumstances of the case
of E.Michael Raj relied upon by the appellants.

The
evidence further reveals that soon after the seizure of the
contraband substance Charas, the samples and the remaining quantity
of Charas duly packed and sealed were deposited in NCB godown. It is
further revealed that the samples were received by FSL and CRCL in
packed and sealed condition. During the course of evidence of
witnesses, muddamal was shown to them and the same was duly
identified. When such is the situation, the contention raised by the
appellants that there was any possibility of tampering with the
muddamal deserves to be discarded.

The submission
made on behalf of the appellants that since some of the NCB Officers
of the raiding party like Mr.Vikas Ratnoo, did not claim travelling
allowance and dearness allowance, and, therefore, the fact that for
the purpose of carrying out raid at Navsari, they travelled from
Ahmedabad to Navsari and that they stayed in Navsari for couple of
days should not be believed. We do not consider such submission to
be a material one, which would render the entire prosecution case a
doubtful one. Mere fact that some of the Officers did not claim any
TA and DA can be said to be insignificant. As revealed from the
evidence on record, the Officers travelled in official vehicles and
not by train or bus. Therefore, there was no question of claiming
any TA. Claim for DA may not be compulsory. The evidence on record
clearly suggests that the Officers of the NCB came to Navsari and
carried out raid at the house of the accused No.1 Ketan Patel.

About
the Ahmedabad raid, it was submitted on behalf of the appellants
that over and above accused No.4 Nituben in the house, one lady and
one male member were found, yet, only Nituben is arraigned as
co-accused. We do not find any substance in the submission for the
simple reason that it has come on record that both the accused No.3
Abdul Salim @ Salimbhai and accused No.4 Nituben were dealing in
Charas and they were collecting Charas and were selling Charas. Mere
presence of one another lady and a male member of the family in the
house cannot be said to be a material circumstance to connect them
with the crime. Over and above the recovery of Charas from the house
of accused No.4 Nituben, there is her statement recorded by
competent Officer under Section 67 of the NDPS Act.

The
argument made on behalf of the appellants regarding the statements
of the accused recorded u/s.67 of the NDPS Act requires to be dealt
with at some length. It is submitted that though on record, the
prosecution tried to submit that the statements were recorded before
arrest, but as a matter of fact, the accused were already under
custody of NCB when their statements were recorded. It is further
stated that the statements were recorded under the coercion and the
statements were not the voluntary statements of the accused. It is
further stated that though the appellant accused No.1, 3 and 4
during course of recording of evidence, did not retract their
confessional statements, but in their further statements recorded
under Section 313 of the Cr.P.C., they clearly retracted their
statements. So far as accused No.5 Naseebbanu Pathan is concerned,
it is submitted that even during the course of trial, she had
forwarded the writing through jail, stating that her statement was
recorded by using coercive tactics. Moreover, it is submitted that
the bare statement can never be a base for conviction. If the
statement is found to be free from any coercion, undue influence or
promise and is found to be voluntary, then also, the same is
required to be corroborated by other evidence on record.

21.1 Now,
as revealed from the evidence on record, so far as appellant accused
No.1 Ketan Patel is concerned, on 27.5.2002, his statement, Exh.59
was recorded by Intelligence Officer PW-1 Mr.S.S.Singh. The
statement was recorded in Navsari circuit house. As revealed from
his evidence, the statement, Exh.59 is in the handwriting of the
accused Ketan Patel himself. So far as appellant accused No.3 Abdul
Salim @ Salimbhai is concerned, his statement was recorded on
27.5.2002, Exh.58 by Intelligence Officer PW-1 Mr.S.S.Singh at
Navsari circuit house. The statement of appellant accused No.4
Nituben Salimbhai was recorded on 27.5.2002 at NCB office, Ahmedabad
by Intelligence Officer PW-3 Mr.S.J.Lodha, which is produced at
Exh.131 and Mr.S.J.Lodha also recorded further statement of Nituben
on 28.5.2002 at NCB office, Ahmedabad, which is produced at Exh.137.
PW-3 Mr.S.J.Lodha also recorded statement of appellant accused
No.5 Nasibbanu on 28.5.2002 at Ahmedabad NCB office which is
produced at Exh.135. Except the statement, Exh.59 of accused No.1
Ketan Patel, the rest of the above-referred statement are in the
handwriting of the concerned recording Officers. The concerned
Officers have also recorded the statements of accused No.2 Habibkhan
(now deceased) as well as of absconding accused Mahmed Ramzan as
well as two witnesses of Angadia firm. At present we are concerned
with the statements of the appellant accused persons. We have taken
into consideration even the original statements of the appellant
accused produced at Exhs.58, 59, 131, 135 and 137 from the record
and proceedings of the trial Court. In connection with those
statements, the concerned Intelligence Officers who recorded those
statements were examined as witnesses in this case. We have
carefully gone through the evidence of the Intelligence Officers,
namely, PW-1 Mr.S.S.Singh and PW-3 Mr.S.J.Lodha. From their
depositions, it clearly reveals that before recording those
statements, the concerned accused was apprised of the facts that he
was not bound to make any statement and if he makes any statement,
same can be used against him and against other persons. If we read
those statements, opening paragraph clearly reveals that the maker
of the statement was apprised about the same. Furthermore,
considering those statements of the appellants accused, it further
transpires that the statements contained minute details regarding
their family and their academic background which can be said to be
only within the exclusive knowledge of the maker only. This rules
out the possibility of concoction. If at all the Officer of NCB
intended to concoct a false statement, such statement would not have
contained such material which was within the exclusive knowledge of
the maker of the statement. All the above-referred statements
containing more than one pages bear signatures of the respective
appellants accused persons as well as countersigned by the
respective Officer, who recorded statement.

The
bare reading of Section 67 of the NDPS Act reveals that an empowered
Officer as empowered u/s.42 of the Act may during the course of an
inquiry in connection with the contravention of any provisions of
this Act, 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. He may
require any person to produce or deliver any document relevant to
the inquiry. He may also examine any person acquainted with the
facts and circumstances of the case.

22.1 Considering
the case on Kanaiyalal Vs. Union of India (2008)2 SCC (Cr.) 474,
Hon’ble Apex Court dealing with the provisions contained u/s.67 of
the Act held that the statement contemplated u/s.67 of the Act,
is not the same as statement under Section 161 of the Cr.P.C. .
The Hon’ble the Apex Court further held that the consistent view
which has been taken with regard to confessions made under
provisions of Section 67 of the NDPS Act 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. In para 41 of the
judgment, Hon’ble the Apex Court, considering the similar provisions
in other statutes held that at the 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 . It is further held that as long as such
statement was made by the accused at the time he was not under
arrest, the bar under Sections 24 to 27 of the Evidence Act would
not operated nor would the provisions of Article 20(3) of the
Constitution be attracted . Moreover, considering said case, it
further transpires that the confessional statement was retracted by
the accused immediately after its recording. Hon’ble Apex Court
about the retraction of confessional statement in para 47 of the
judgment observed that though an appilcation was made for
retracting the confession made by the appellant, neither was any
order passed on the said application nor was the same proved during
the trial, so as to water down the evidential value of said
statement . Ultimately, in the said para 47, Hon’ble the Apex
Court held that since a conviction can be maintained solely on
the basis of such confession made u/s.67 of the NDPS Act, we see no
reason to interfere with the conclusion of the High Court convicting
the appellant.

22.2 Now,
applying the ratio laid down by the Hon’ble the Apex Court in
Kanaiyalal’s case, it becomes clear that while appreciating the
evidence in form of statement u/s.67 of the Act, the prime duty of
the Court shall be to ascertain as to whether statement is
voluntarily made by the accused or not. In the instant case,
considering the overall evidence on record, nothing emerges that the
statements are outcome of any coercive tactics adopted by the
concerned Officer of the NCB. Though it is submitted that so far as
the appellant accused No.5 Naseebbanu is concerned, through jail,
she forwarded an application to the Court of learned CJM retracting
her confession. Nothing is pointed out as to ultimately, what was
the order passed by the concerned Court in said application.
Moreover, it transpires from the evidence on record that at the time
when the statements of the appellants accused were recorded they
were not arrested. Though statements of appellant accused Nos.1 and
3 were recorded at Navsari circuit house and the statements of
appellants accused Nos.4 and 5 were recorded at NCB Office,
Ahmedabad, but at that time, they were not arrested by the concerned
NCB Officers. Considering the ratio laid down in Kanaiyalal’s case,
it is observed by Hon’ble Apex Court that at that stage, the
person concerned is not an accused and that he may be said to be in
custody . Mere custody does not mean that said person is duly
arrested and kept in custody. To put it differently, in the instant
case, nothing is revealed that the statements are post arrest
confessional statements of the appellants. In the instant case, the
evidence on record further reveals that after recording of their
statements, the accused were produced before concerned Judicial
Magistrate. Nothing comes out from the evidence on record that at
that time any of the accused made any complaint against any of the
Officers of the NCB about the ill-treatment meted out to the accused
or any coercive tactics adopted by the Officers while recording
their statements. After the oral evidence led by the prosecution was
concluded, the trial Court recorded further statements of the
accused and during the course of their further statements recorded
u/s.313 of the Cr.P.C., the accused retracted their confessional
statements. It is further pertinent to note that in the oral
evidence of concerned Intelligence Officer who recorded the
statements, nothing is revealed that any coercive tactics were
adopted while recording the statements. Considering their
depositions on this point, no effective cross-examination appears to
have been made on behalf of the accused and almost similar was the
situation if Kanaiyalal’s case is considered. The trial Court in the
impugned judgment, therefore, rightly came to the conclusion that
the appellant accused made voluntary statements under Section 67 of
the NDPS Act. We have independently examined such conclusion arrived
at by the trial Court and we are satisfied that the trial Court
rightly came to such conclusion.

On
behalf of the appellants, case of Noor Aga Vs. State of Punjab
reported in 2008(9) SCALE 681
was relied upon. However,
considering the facts and circumstances of the said case, appellant
Noor Aga, when he arrived at the airport, at that time, concerned
Customs Officer carried on search of the belongings of the appellant
and contraband substance was found. In the said case, the
prosecution did not produce the physical evidence before the trial
Court particularly the sample of the purported contraband material.
No independent witnesses were examined. There was huge discrepancy
in the evidence of official witnesses in regard to search and
seizure. The confessional statement of the appellant was recorded
u/s.108 r/w.Section 138(B) of the Customs Act, 1962. In that
background, Hon’ble Apex Court allowed the appeal and recorded
acquittal of the appellant. Now, in the instant case, no such
infirmities are there as were there in Noor Aga’s case. We do not
find any material discrepancy in the evidence of the NCB Officers
examined in the instant case. Moreover, in the instant case, the
concerned NCB Officers recorded the statements of the appellants
accused u/s.67 of the NDPS Act.

23.1 On
behalf of the appellants, case of Union
of India Vs.Bal Mukund & Ors.

2009(2)
Supreme 170 was
relied upon. In said case, the statements of the appellants accused
were recorded u/s.67 of the NDPS Act. Considering the facts of
said case, Hon’ble Apex Court considered the infirmities
in
the prosecution case. There was outright non-compliance of the
mandatory provisions contained u/s.42 of the Act. During the course
of trial before the trial Court, the confessional statements were
retracted. It was further observed that the confession of accused
u/s.67 of the NDPS Act does not bind his co-accused. In said
background and considering the peculiar facts and circumstances of
the said case and the infirmities emerged from the evidence on
record, Hon’ble Apex Court held that the conviction should not be
based merely on the basis of a confessional statement without any
independent corroboration. Now, the facts of our case are totally
different. In our case, as stated above, no mandatory requirements
laid down under the Act have been violated by the NCB Officers.
Nothing transpires that the evidence of the NCB Officers suffers
from material discrepancy or infirmity. In the instant case, there
is nothing that the statement of co-accused is used while recording
the conviction. All the appellants accused individually made their
statements u/s.67 of the NDPS Act before the concerned authorities.

23.2 Under
such circumstances, considering the facts and circumstances of the
instant case and considering the facts and circumstances and
evidence in Kanaiyalal s Case (supra),
we are of the considered opinion that the statements
recorded under Section 67 of the NDPS Act of the appellants accused
deserve to be considered. Nothing transpires that the statements are
outcome of any coercion, undue influence or any promise. On behalf
of the appellants case of Raju
Premji Vs.Customs NER Shillong Unit
reported in 2009
AIAR (Cr.) 531
is relied upon. However, considering the facts of the said case,
which was arising under this Act, the search of accused persons was
conducted without complying with Section 50 of the Act. The accused
persons were not actually found in possession of any contraband.
Moreover, when the statements of accused persons were recorded,
they were in police custody. Hon’ble the Apex Court in paragraph 19
observed that statement made by them while in custody of Police
Officer would be inadmissible in evidence. In paragraph 23 of said
judgment, Hon ble Apex Court further observed that where a
confessional statement is voluntary and free from any pressure must
be judged from the facts and circumstances of each case . Thus,
the facts of our case are totally different. In the present case,
nothing transpires that at the time when the statements of the
appellants accused were recorded under Section 67 of the Act, they
were in police custody or that they were actually arrested. To put
it differently,
there is nothing that statements were post arrest
statements.

23.3 On
behalf of the appellants, judgment dated 21.12.2009 delivered in
Criminal Appeal No.488 of 2006 with Criminal Appeal No.568 of 2006
with Criminal Appeal No.799 of 2007 delivered by this Court (Coram:
A.L.Dave and H.N.Devani, JJ.) in the case of Zarina
Gulam Haji Bhat & Ors. Vs. State of Gujarat & Ors. Is
relied upon.

However,
considering the facts of said case, it transpires that original
accused No.1 Abdul Sheikh was intercepted by NCB Officers while he
was driving the truck and from the secret compartment of the truck,
Charas was seized. In his statement recorded u/s.67 of the NDPS Act,
he only stated that he was to deliver Charas to accused No.2 Suresh
Gupta and accused No.3 Zarina at Mumbai. The statement did not
reveal any further details of Suresh and Zarina. The statement was
recorded in NCB Office Ahmedabad on 6.1.2002 and on next day
i.e.7.1.2002, Suresh and Zarina were picked up from Bombay. It
further transpires from the facts of said judgment that Zarina was
already undergoing a sentence and she was already confined to jail
in Bombay. The statement of accused No.1 Abdul Sheikh did not
contain any details except the first name of Suresh and Zarina. The
NCB Officer who picked up co-accused Suresh and
Zarina was not examined as witness. This Court, therefore,
came to the conclusion that it was not safe to convict a person on
the basis of statement of co-accused only when their initial
identity and thereby nexus with the crime is not properly
established. Under such circumstances, ultimately, the conviction of
accused No.1 Abdul Sheikh recorded by the trial Court was confirmed
and his appeal came to be dismissed. However, the appeal preferred
by appellant original accused No.2 Zarina Gulam Haji Bhat and
appellant original accused No.3 Suresh Gupta came to be allowed and
they were ordered to be acquitted. The facts of our case are totally
different. In the instant case, the statement of accused No.1 Ketan
Patel recorded in 1st
point of time on 27.5.2002, Exh.59 contained all the details
regarding co-accused. So far as accused No.3 Abdul Salim @ Salimbhai
and accused No.4 Nituben are concerned, they are husband and wife.
Accused No.3 Abdul Salim @ Salimbhai was found in the house of the
accused No.1 Ketan Patel. The raid was carried out at Navsari.
Accused No.3, Abdul Salim @ Salimbhai in his statement, Exh.58
provided all the details about the name and full address of his wife
accused No.4 Nituben and accordingly, the Intelligence Officer PW-3
Mr.Lodha raided the house of accused Nos.3 and 4 at Ahmedabad and
Charas was recovered.

Statement u/s.67 of the Act of accused No.4 Nituben
was also recorded subsequent to the recovery of Charas from her
house at Ahmedabad.

On
behalf of the appellant accused No.5, Naseebbanu, it was vehemently
submitted that so far as accused No.5 Naseebbanu Pathan is
concerned, she is convicted by the trial Court solely on the basis
of her statement, Exh.135 allegedly recorded by Intelligence Office
of NCB PW-3 Mr.Lodha on 28.5.2002. Nothing objectionable was
recovered from her or from her house. However, perusing the evidence
of NCB Officers examined in this case, together with the statement
of accused No.4 Nituben, recorded u/s.67 of the Act, Exh.137, it
clearly transpires that the Charas which was seized from her house
was supplied to her by accused No.5 Naseebbanu. In her statement,
Exh.135, she identified the accused No.4 Nituben as the lady to whom
Charas was supplied by her. She further stated that prior to this,
for about 10 times, Charas was supplied by her to accused No.4
Nituben. We have seen that all the statements of the appellant
accused persons, including the statements of accused No.5 Naseebbanu
are voluntarily made by them and the statements are not outcome of
any coercion, threat or promise. It is pertinent to note that
accused No.5 Naseebbanu is not convicted merely on the basis of
statement of co-accused No.4 Nituben.

Her own statement was also recorded. Her statement also gets
corroboration by the evidence regarding the recovery of Charas from
the house of accused No.4 Nituben, which, before a week she had
supplied to Nituben.

In
the result, we are, therefore, of the considered opinion that the
trial Court rightly relied upon the statements of the appellants
accused recorded under Section 67 of the NDPS Act.

On
behalf of the appellants, it is submitted that as per the
prosecution case, Charas was recovered from Navsari as well as from
Ahmedabad. It is submitted that about the Charas recovered from
Navsari, a separate trial should have been conducted in the
competent Court at Navsari and about the Charas recovered from
Ahmedabad, again a separate trial should have been conducted at
Ahmedabad, but in the instant case, a joint trial was conducted at
Navsari even regarding the recovery of Charas from Ahmedabad. It is
further submitted that the original accused Nos.1,2,3 and 4 came to
be convicted for the offences regarding Charas recovered from
Navsari as well as the original accused Nos.3 and 4 were again
convicted regarding the recovery of Charas from Ahmedabad. That,
thus,
the joint trial itself was material irregularity committed by the
trial Court and recording conviction of original accused No.3 Abdul
Salim @ Salimbhai and original accused No.4 Nituben twice can be
said to be further irregularity as well. Now in this connection,
considering the facts of the present case, it clearly transpires
that the initial information was received by the concerned Officer
of the NCB regarding Charas in the house of accused No.1 at Navsari.
At the time of the raid being carried out in the house of accused
No.1 at Navsari and when the Charas was found from his house, at
that time accused No.1 Ketan Patel, accused No.3 Abdul Salim @
Salimbhai and absconding accused Mahmed Ramzan were found. From the
statements of the accused Nos.1 and 3, it was revealed that accused
No.4 Nituben, resident of Ahmedabad and the wife of accused No.3
Abdul Salim @ Salimbhai was also dealing in Charas at Ahmedabad and
as a matter of fact, the accused No.3 Abdul Salim @ Salimbhai had
come to Navsari at the place of accused No.1 Ketan Patel for the
purpose of getting 4 kgs. of Charas. On the basis of said statement,
raid was conducted at Ahmedabad and from the house of accused No.3
Abdul Salim @ Salimbhai and accused No.4 Nituben, Charas was found.
The trial Court in the impugned judgment held that the offence was
continuous
offence and the offences which were committed though at different
places, but in the course of the same transaction. In this
connection, considering the Sub-clause (d) of Section 178 of the
Cr.P.C., it is provided that where
it consists of several acts done in different local areas, It may be
inquired to or tried by a court having jurisdiction over any of such
local areas. Moreover, Sub-Clause (d) of Sectoin 223 of the
Cr.P.C. prescribes that person accused of different offences
committed in the course of the same transaction, may be charged and
tried together. Moreover, in the instant case, it is pertinent to
note that the trial Court recorded conviction of the appellant
accused persons regarding offences arising under the NDPS Act read
with Section 29 of the Act. Relevant part of Section 29 of the Act
runs as under:-

Section
29 Punishment for abetment and criminal conspiracy

(1)
Whoever abets or is a party to a criminal conspiracy to commit an
offence punishable under this Chapter, shall, whether such offence
be or be not committed in consequence of such abetment or in
pursuance of such criminal conspiracy, and notwithstanding anything
contained in section 116 of the Indian Penal Code (45 of 1860), be
punishable with the punishment provided for the offence.

(2)

A person abets…..

In
the instant case, as emerged from the evidence on record, the
offence which was committed at Navsari and the offence which was
committed at Ahmedabad were part and parcel of a criminal conspiracy
regarding trafficking of Charas by the appellants accused. The trial
Court in the impugned judgment assigning cogent and convincing
reasons, discarded the identical contention raised on behalf of the
accused that the joint trial was illegality. Considering the facts
and circumstances of the case as well as the relevant provisions
contained under the Cr.P.C. and the NDPS Act, as discussed above, we
do not find any illegality or any irregularity in the conclusion
arrived at by the trial Court that the joint trial was permissible
and cannot be termed to be illegality. When such is the situation,
we are of the considered opinion that the conviction recorded by the
trial Court so far as original accused No.3 Abdul Salim @ Salimbhai
and original accused No.4 Nituben regarding the offence of recovery
of Charas at Navsari and the offence of recovery of Charas at
Ahmedabad cannot be said to be illegal. It is further pertinent to
note that original accused No.5 Naseebbanu is not convicted for the
offence of recovery of Charas at Navsari. Considering the overall
evidence on record as well as the statements of the appellants
accused recorded under Section 67 of the NDPS Act,
nowhere it emerges that she was in any respect connected with the
Charas recovered at Navsari. Her conviction is recorded by the trial
Court only regarding the offence pertaining to the Charas recovered
at Ahmedabad.

On
behalf of the appellants it was further submitted that if the
statements of the appellants recorded under Section 313 of the
Cr.P.C. are considered, almost identical questions were put to all
the accused irrespective of fact whether particular question was
relevant to particular accused or not and thereby a prejudice was
caused to the accused. We have minutely taken into consideration the
further statements of the accused recorded by the trial Court under
Section 313 of the Cr.P.C. However, considering the further
statements, it appears that entire material emerged from the
evidence on record and used against them was put to all the accused
persons, and nothing is specifically indicated that any material
ultimately used by the trial Court while recording the conviction of
the accused was not put to him and he was not given any opportunity
to explain such material and his conviction was recorded. However,
we do not find any illegality or any infirmity committed by the
trial Court while recording the further statements of the accused
under Section 313 of the Cr.P.C.

On
behalf of the appellants, it was submitted that the trial Court
misinterpreted the provisions regarding the presumption contained
under Section 35 and Section 54 of the NDPS Act. Section 35 of the
Act pertains to presumption of culpable mental state and Section 54
pertains to presumption from possession of illicit articles. It is
submitted that straightway presumptions cannot be raised and initial
burden lies upon the prosecution to prove its case beyond any
reasonable doubt. In this connection, considering the facts and
circumstances and evidence on record in the instant case, we are of
the considered opinion that the initial burden about proving the
case beyond any reasonable doubt has properly been discharged by the
prosecution. The prosecution proved beyond reasonable doubt the
nexus and connection of the appellants accused with the contraband
article Charas. Once the initial burden is discharged, the trial
Court rightly raised the presumption regarding the culpable mental
state and the presumption contained under Section 54 of the Act.
Considering the provisions contained under Section 54 of the Act, it
is clear that once the prosecution adduced evidence, connecting the
accused with the contraband substance under the Act and the evidence
is found to be beyond any reasonable doubt, the burden shifts upon
the accused to satisfactorily account
for said possession. In the instant case, the only defence raised by
the appellants accused is of bare denial. To put it differently, the
presumption contained under the Act has not been duly rebutted by
the accused.

In
light of the entire above discussions, therefore, we are of the
considered opinion that the trial Court rightly recorded the
conviction of the appellants accused for the offences charged
against them. The appellants accused Nos.1, 3 and 4 are convicted of
the offences pertaining to commercial quantity of contraband
substance Charas and the trial Court, therefore, rightly awarded the
minimum sentence prescribed under Section 20(b)(ii)(c) of the NDPS
Act and rightly awarded the sentence of R.I for ten years and fine
of Rs.1 Lac.

30.1 Moreover,
along with appellant original accused No.5 Naseebbanu, the
appellants accused Nos.3 and 4 are convicted of the offence
punishable under Section 20(b)(ii)(B) of the NDPS Act regarding the
recovery of Charas at Ahmedabad from their house. The Charas
recovered was more than the small quantity, but lesser than the
commercial quantity as prescribed under the NDPS Act. As discussed
above in this judgment, the trial Court rightly recorded conviction
of appellants accused Nos.3 and 4 for intermediate
quantity of Charas recovered from their house at Ahmedabad and
rightly awarded the sentence accordingly. The trial Court has also
directed that the sentences of imprisonment shall run concurrently.
However, so far as appellant accused No.5 Naseebbanu Pathan is
concerned, her conviction is recorded for the offence under Section
20(b)(ii)(B) of the NDPS Act wherein no minimum sentence is
prescribed and the said offence is punishable with R.I for a term
which may extend to ten years and with fine, which may extend to
Rs.1 Lac. She is convicted for the offence of recovery of Charas
which was though more than small quantity, but lesser than
commercial quantity. It is further pertinent to note that pending
the appeal, appellant original accused No.5 Naseebbanu Yusufkhan
Pathan by order dated 18.9.2008 in Criminal Misc.Application
No.10718 of 2008 came to be released on bail and her sentence was
ordered to be suspended and at the time when she was released on
bail, she had already undergone imprisonment of six years and three
months out of the total imprisonment of seven years awarded to her.
Learned advocate Mr.Agrawal for the appellant accused No.5
Naseebbanu stated at bar that she had already deposited the amount
of fine of Rs.50000/- awarded by the trial Court. Considering the
facts and circumstances
of the case, it would be in the fitness of the things, if the
sentence of imprisonment awarded to her by the trial Court is
altered to the period already undergone by her in jail. The
appellants are also convicted for the offences punishable under
Section under Sections 25 and 29 of the NDPS Act. However, no
separate sentences are provided for the offences and they are
punishable with the punishment provided for principal offences.
Accordingly, for principal offences, the trial Court has awarded the
sentences in accordance with the quantity of Charas seized, as
discussed above.

In
the result, the appeals preferred by appellants accused Nos.1, 3 and
4 bearing Criminal Appeal Nos.718 and 994 of 2007 are devoid of any
merits and deserve dismissal. The appeal preferred by appellant
accused No.5 deserves to be partly allowed only to the extent of the
sentence, maintaining her conviction recorded by the trial Court.

For
the foregoing reasons,
Criminal
Appeal No.718 of 2007 and Criminal Appeal No.994 of 2007 stand
dismissed.

Criminal
Appeal No.1440 of 2008 is partly allowed. The conviction of
appellant original accused No.5 Smt.Naseebbanu
Yusufkhan Pathan recorded by learned Additional Sessions Judge, 2nd
Fast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1
of 2003 for the offences punishable under Sections 8(c),
20(b)(ii)(b), 25 read with Section 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, is maintained. However, the
sentence of imprisonment of R.I for seven years awarded to the
appellant original accused No.5 Smt.Naseebbanu Yusufkhan Pathan is
altered to the period already undergone by her in the jail,
maintaining the order of fine. Since she has already deposited the
fine, she is not required to surrender to jail. Her bail bonds
shall stand cancelled.

(Ravi
R.Tripathi, J.)

(J.C.

Upadhyaya, J.)

(binoy)

   

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