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CR.A/1269/2008 77/ 80 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1269 of 2008
With
CRIMINAL
APPEAL No. 2550 of 2008
With
CRIMINAL
APPEAL No. 1726 of 2008
With
CRIMINAL
APPEAL No. 1826 of 2008
With
CRIMINAL
APPEAL No. 1398 of 2008
With
CRIMINAL
APPEAL No. 1779 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=====================================================
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 ?
=====================================================
SULOCHNABEN
SHIVRAM KADAM - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=====================================================
Appearance :
MR
VIRAT G POPAT for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1269/08)
MR
BB NAIK for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1398/08)
MR
ASHISH DAGLI for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1726/08) &
MR PR ABICHANDANI for Opponent No.2
MR
HEMANG R. RAVAL for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1826/08)
MR
CHIRAG M PAWAR & MR PRATIK B BAROT for Appellant(s) : 1(IN
CRIMINAL APPEAL NO.1779/08)
MR
HB SHETHNA for Appellant(s) : 1(IN CRIMINAL APPEAL NO.2550/08)
MR
KP RAVAL, APP for Opponent(s) : 1,(IN ALL THE MATTERS)
MR HRIDAY
BUCH for Opponent No.2 (IN ALL THE CONCERNED
MATTERS)
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 07-10/05/2010
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
As
all the appeals arise out of the common judgement and order of the
trial Court, they are being considered by this common judgement.
As
per the prosecution case, Narcotic Control Bureau (hereinafter
referred to as ‘NCB’ for
short) received secrete specific information that a Kashmiri Sikh
person was carrying a huge quantity of Charas
in secret chamber of the driver’s cabin of one truck bearing R.T.O.
No.PAT
8683, coming from the State of Jammu and Kashmir with the
consignment of approximately 92.670 kgs Charas
(Hashish) and the said Charas
was to be delivered to a person named Gulam Mohammad (A-2), resident
of Dabhoi, Vadodara (Baroda) District in Gujarat State and the said
Gulam Mohammad (A-2) was to come in a fiat car bearing RTO
Registration No.GJ-S-8242 and the delivery was to be effected at a
specific place near the office of Transport Corporation of India
(‘TCI’ for short), opposite Hotel Shere Punjab, National Highway
No.8 ahead of Narol Chokadi, Ahmedabad on 29.9.2001 at about 10 a.m.
As per the prosecution case, the said information was reduced in
writing by the Intelligence
Office of NCB and was submitted to the Zonal Director of NCB and
thereafter, a joint team of officers of NCB and ATS Squad formed a
team to take necessary action and proceed further. On reaching at
the site as per the information provided to them, the NCB Officers
saw the truck bearing No.PAT 8683 parked near TCI Office.
Thereafter, the panchas
and
other officers made small group to maintain search at different
places to look for the car bearing RTO Registration No.GAS 8042
coming from Baroda. At
about 11 hours, one fiat car of white colour bearing RTO
Registration No.GAS 8042 was seen coming from Baroda (Vadodara) and
there were three occupants in the car and the car stopped near the
truck bearing RTO Registration No.PAT 8683. Two persons sitting at
the back of the car alighted from the car and they went near the
truck No.PAT8683 and stood there. After some time, one Sardarjee
came there and started talking to them. The said Sardarjee boarded
the driving cabin of Truck No.PAT 8683 and got down after a few
minutes with
some black-brown coloured packets and handed over the said packets
to the said two persons. Thereafter the said two persons, after
collecting the packets went to the Car No.GAS 8042 and sat on the
back seat. Thereafter, Shri Shailendra Lodha, I.O., Zonal Director
and other two persons surrounded the said car No.AS 8042 along with
the two occupants and the Kashmiri Sardarjee,
who stood by the truck No.GAS 8683. It appears that thereafter the
search and seizure was made and as per the prosecution case after
following requisite procedure and some black-brown coloured
ball-shaped solid substances (ladoos)
were found to be kept inside. Some of them were tested on the spot
with the help of the testing kit and gave positive result for
Charas.
Since it was not possible to weigh all these packets at the site
and to conduct further procedures, they were repacked and handed
over to the Panchas.
Thereafter, the NCB Officers also searched the truck and it was
found that the truck was having one cavity, which was opening like a
door and in the
said cavity, 14 packets tied in different coloured polythene bags
were also found. These packets were containing black-brown coloured
Ladoo-shaped
solid
substances. The test was also carried out at the field and it gave
positive result for Charas.
The further steps were taken at the NCB Office. The packets with
the Panchas
were opened and the weighing and sealing
process was undertaken with the help of electronic weighing machine.
It was found that the packets recovered from the car GAS No.8042 as
well as from the truck No.PAT 8683 were containing Charas
and
other material, the details of which are as follows :-
Description
of packets containing charas
recovered
from Car
No.GAS-8042.
S.No.
Exh.
Gross
Weight
No.
of Ladoos
Net
weight
Samples
weight
Samples
and Exh.
1
B
3.940
23
3.780
3
samp 25grms each
B1,
B2, B3
2
A
4.196
27
4.003
–
do –
A1,A2,
A3
3
C
4.226
17
4.072
–
do –
C1,C2,C3
4
D
4.180
17
4.031
–
do –
D1,D2,D3
5
E
4.216
18
4.044
–
do –
E1,E2,E3
6
F
4.232
21
4.064
–
do –
F1,F2,F3
7
G
4.190
16
4.042
–
do –
G1,G2,G3
8
H
4.208
27
4.048
–
do –
M1,M2,M3
Description
of packets containing charas
recovered
from Truck bearing
Regn. PAT-8683.
S.No.
Exh.
Gross
Weight
No.
of Ladoos
Net
weight
Samples
weight
Samples
and Exh.
9
I
4.120
23
3.982
3
samp 25grms each
I1,
I2,I3
10
J
4.202
22
4.050
–
do –
J1,J2,
J3
11
K
4.208
28
4.084
–
do –
K1,K2,K3
12
L
4.162
30
4.044
–
do –
L1,L2,L3
13
M
4.064
22
3.944
–
do –
M1,M2,M3
14
N
4.160
22
4.046
–
do –
N1,N2,N3
15
O
4.118
25
3.966
–
do –
O1,O2,O3
16
P
4.146
28
3.972
–
do –
P1,P2,P3
17
Q
4.250
28
4.078
–
do –
Q1,Q2,Q3
18
R
4.300
25
4.122
–
do –
R1,R2,R3
19
S
4.264
28
4.094
–
do –
S1,S2,S3
20
T
4.302
28
4.126
–
do –
T1,T2,T3
21
U
4.170
68
4.066
–
do –
U1,U2,U3
22
V
3.870
81
3.750
–
do –
V1,V2,V3
Accordingly,
the total quantity of Charas
found from the car No.GAS 8042 was weighing 33.338 kgs and from the
truck No.PAT 8683, the total quantity
recovered of Charas
was 59.332 kgs. The necessary panchnamas were drawn and the
statement of Daljisingh (A-1) under Section 67 of NDPS Act was
recorded. The statement of Gulam Mohammad (A-2) was also recorded
under Section 67 of NDPS Act, the statement of Abdul S. Noormohammad
(A-3) was also recorded under Section 67 of the Act, the Statement
of Iqbal Ibrahim Shaikh (A-4) under Section 67 was also recorded.
As per the FSL report it was found that the samples have presence of
Hashish
a narcotic substance covered under NDPS Act. Thereafter, further
statement of A-1 under Section 67 of the Act was also recorded. In
the further statement of A-1, the name of Shivkadam @ Shidada had
transpired and his involvement in the
drug trafficking. It was learnt by NCB Officers that the said
Shivkadam original accused No.5 was to run away from his house
at Vadodara, therefore, he was served with the summons and
thereafter, the statement of A-5 under Section 67 of the Act was
also recorded. Thereafter the house of A-5 was also searched in
presence
of panchas
and seven packets containing charas
weighing a total quantity of 23.383 kgs was found and seized. The
details of such packets are as under :-
Exhibit
Gross
Weight (Kg.)
A
2.918
B
3.092
C
3.082
D
3.008
E
3.094
F
4.098
G
4.094
Total
Gross Weight
23.386
The
packets were opened and the samples were taken and on the filed,
they were tested with the help of testing kits and positive result
was found. Therefore, the procedure for repacking and resealing the
packets were undertaken. Further,
a cash amount of Rs.2 lac and loose papers, files, diary, FDRs Fixed
Deposit Receipts) of Kissan Vikas Patra were also found and they
were seized, inventorized and sealed from the house of A-5 under the
Act. Further, the statement of A-5 under Section 67 of the Act was
also recorded. The statement of wife of A-5,
Smt. Sulojanaben Shivram Kadam under Section 67 of the Act also
recorded. In the statement of A-5, the involvement of Shri Ashif @
Asif H. Chavla (A-6) was found in drug trafficking as one of the
conspirators and abettors. Therefore, he was summoned and
thereafter the statement of A-6 was also recorded under Section 67
of the Act. As per the prosecution case, since all the accused had
committed offences under Section 20(b) read with Section 8(c),
Sections 28 and 29 of NDPS Act, the complaint was filed before the
learned Special Judge being NDPS Case No.4/2002 against all the
accused by Shri Umesh J. Pathak, I.O. of NCB under the duty
authority given to him.
The
learned Special Judge framed the charges and thereafter upon the
denial by the accused for commission of offence the case was tried
by the learned Special Judge.
The
prosecution in support of the charges for proving the guilt of the
accused, examined following seven witnesses and produced 61
documentary evidences as under :
1.
PW-1
Shailendra
Jayprakash Lodha Ex 29 (Seizing Officer)
2.
PW-2
Jagdishbhai
Hirjibhai Ramani Ex. 90 (Panch witness to the Seizure
Panchnama dated 29.9.2001 regarding seizure at Narol Chokdi)
3.
PW-3
Jayeshbhai
Anilbhai Karadiya Ex. 109 (Panch Witness to the seizure
panchnama dated 16.12.2001 regarding seizure at residence of
Accused No.5 at Baroda)
4.
PW-4
Umesh
Jayantbhai Pathak Ex. 114 (Investigating Officer)
5.
PW-5
Janmahmad
Fakirbhai Mansari Ex. 185 (Expert from Forensic Science
Laboratory)
6.
PW-6
Markandbhai
Kantilalbhai Pathak Ex. 192 (Expert from Forensic Science
Laboratory)
7.
PW-7
Pavansing
Gajesing Tomar Ex. 197 (Zonal Director of N.C.B.)
The
prosecution has produced the documentary evidence with list at Ex.
20, 24, and 64 as follows:-
1.
Exh.30
Notice
under Section 50 of NDPS Act to accused No.2
2.
Exh.31
Notice
under Section 50 of NDPS Act to accused No.4
3.
Exh.32
Notice
under Section 50 of NDPS Act to accused No.3
4.
Exh.33
Notice
under Section 50 of NDPS Act to accused No.1
5.
Exh.34
Summons
U/s 67 of NDPS Act to accused No.1
6.
Exh.35
Summons
U/s 67 of NDPS Act to accused No.2
7.
Exh.36
Summons
U/s 67 of NDPS Act to accused No.3
8.
Exh.37
Summons
U/s 67 of NDPS Act to accused No.4
9.
Exh.39
Summons
U/s 67 of NDPS Act to accused No.1
10.
Exh.40
Summons
U/s 67 of NDPS Act to accused No.2
11.
Exh.41
Summons
U/s 67 of NDPS Act to accused No.3
12.
Exh.42
Summons
U/s 67 of NDPS Act to accused No.4
13.
Exh.43
Arrest
Memo of accused No.1
14.
Exh.44
Arrest
Memo of accused No.2
15.
Exh.45
Arrest
Memo of accused No.3
16.
Exh.46
Arrest
Memo of accused No.4
17.
Exh.47
Intimation
regarding arrest to relatives of accused No.1
18.
Exh.48
Intimation
regarding arrest to relatives of accused No.2
19.
Exh.49
Intimation
regarding arrest to relatives of accused No.3
20.
Exh.50
Intimation
regarding arrest to relatives of accused No.4
21.
Exh.51
Forwarding
letter to FSL, Gandhinagar
22.
Exh.52
Test
Memo
23.
Exh.53
Report
of FSL
24.
Exh.54
Forwarding
letter to CRCL, New Delhi
25.
Exh.55
Test
Memo
26.
Exh.56
Report
under Section 57 of NDPS Act
27.
Exh.57
2nd
Statement U/s 67 of NDPS Act of accused No.1
28.
Exh.67
Entry
in Log Book
29.
Exh.68
Entry
in Log Book
30.
Exh.69
Auto
Sales Bill
31.
Exh.70
Petrol
Bill
32.
Exh.71
Application
33.
Exh.91
Panchnama
dated 29.9.2001 regarding seizure at Narol Chokdi
34.
Exh.110
Panchnama
dated 16.12.2001 at residence of accused No.5 at Baroda.
35.
Exh.115
Gist
of information in compliance u/s 42(2) of NDPS Act
36.
Exh.116
Summons
u/s 67 of NDPS Act to accused No.5
37.
Exh.117
Statement
u/s 67 of NDPS Act to accused No.5
38.
Exh.118
Information
by accused No.5
39.
Exh.119
2nd
Statement u/s 67 of NDPS Act of accused No.5
40.
Exh.120
Arrest
Memo of accused No.5
41.
Exh.121
Information
regarding arrest to relatives of accused No.5
42.
Exh.123
Statement
u/s 67 of NDPS Act of accused No.5
43.
Exh.124
Statement
u/s 67 of NDPS Act of accused No.5
44.
Exh.125
Summons
to wife of accused No.5 – Sulochnaben
45.
Exh.126
Statement
u/s 67 of NDPS Act of w/o accused No.5
46.
Exh.127
Intimation
to Telephone Department
47.
Exh.128
O/C
of forwarding letter to CRCL, New Delhi
48.
Exh.129
Report
of CRCL, New Delhi regarding seizure taken place at Narol Chokdi,
Ahmedabad
49.
Exh.130
Report
of FSL, Ahmedabad regarding seizure at Narol Chokdi, Ahmedabad
50.
Exh.131
Summons
u/s 67 of NDPS Act to accused No.6
51.
Exh.132
Summons
u/s 67 of NDPS Act to accused No.6
52.
Exh.133
Arrest
Memo of accused No.6
53.
Exh.134
Telegram
to accused No.5
54.
Exh.136
Letter
to BSNL, Baroda
55.
Exh.137
Forwarding
letter to FSL regarding seizure at Baroda
56.
Exh.138
Receipt
of FSL, receiving Muddamal
Articles
57.
Exh.139
Report
of FSL regarding seizure of Baroda
58.
Exh.140
Complaint
59.
Exh.198
Letter
to Bombay Narcotic Cell
60.
Exh.199
Reply
of Bombay Narcotic Celll
61.
Exh.200
Letter
to Zonal Director, NCB, Chandigarh
The
statement of the accused thereafter was recoded under Section 313 of
Cr. P.C., wherein they have denied the commission of offence and in
the further statements, A-1 to A-4 stated that they were directly or
indirectly not connected with the said vehicles and with narcotic
substance i.e. Charas
and they were not present at the place from where the vehicles and
the narcotic substances were recovered and seized. After the
recording of the statement under
Section 313 of the Act of A-5, it was reported that Accused-5 had
expired. It was further stated by the accused in general that NCB
officers have forced them to sign the papers by putting them under
the fear of mental and physical torture and, therefore, no statement
as averred and alleged by the prosecution should be believed.
The accused also stated that they had repeatedly told the officers
that they were innocent and they have been wrongly planted by the
NCB Officers and they were wrongly implicated, as per the accused.
It
may be recorded that none of the accused has stepped into the
witness box, but accused No.3 and others have not examined any
witness in defence, whereas accused Nos.1, 2, and 4 examined, in
all, 12 defence witnesses as follows :-
1
DW-1
Hasinabanu
Gulam Muhmad Ganai Ex 208 (w/o Accused No.2 Gulam Mohammad
Hajibulla Ganai)
2
DW-2
Mahmad
Faruk Abdul Karim Ludaniya Ex 209 (Witness of Accused No.2
Gulam Mohmmad Hajibulla Ganai)
3
DW-3
Hasanali
Kadarmiya Diwan Ex 210 (Witness of Accused No.2 Gulam
Mohammad Hajibulla Ganai)
4
DW-4
Sabbirbhai
Ysinbhai Begwala Ex. 211 (Witness of Accused No.2 Gulam
Mohammad Hajibulla Ganai)
5
DW-5
Nazmin
Iqbalbhai Ansari Ex 214 (w/o accused No.4 Iqbal Ibrahim)
6
DW-6
Aiyub
Gulamnabi Shaikh Ex 217 (son-in-law of accused No.4 who
happens to be uncle-in-law of witness)
7
DW-7
Allahrakha
Malnmiya Arab Ex 218 (witness of accused No.4 Iqbal Ibrahim)
8
DW-8
Pravinchandra
Tribhovandas Gajjar Ex. 219 (Manager of Central Warehousing
Corpn. Examined by accused Gulam Mohammad Hajibulla Ganai)
9
DW-9
Ganibhai
Rasulbhai Mansuri Ex. 223 (Witness of accused No.4 Iqbal
Ibrahim)
10
DW-10
Sureshbhai
Maganbhai
Rathwa Ex 228 (Police Constable witness of
accused No.4 Iqbal Ibrahimwith regard to visit of his relatives
to Police Commissioner, Baroda)
11
DW-11
Bharatbhai
Dungarsinhbhai Lakhtariya Ex 229 ( reporter of Gujarat
Smachar witness of accused No.4 Iqbal Ibrahim regarding news
published in daily newspaper
of Baroda Edition)
12
DW-12
Opinandar
Shribalaji Ganju Ex 237 (witness of accused No.1 regarding
his presence in service)
The
learned Special Judge, thereafter heard the complainant/prosecution
as well as the accused and ultimately for the reasons recorded in
the judgement and order found that since accused No.5
had expired the case had abated against him and so far as A-1 to A-4
and A-6 were concerned, it was found by the learned Special Judge
that they were guilty and deserves to be convicted for the offences
punishable under Sections 8(c), 20(b) read with Section 29 of NDPS
Act. The learned
Special Judge heard the accused for punishment and conviction and
ultimately the Special Judge convicted A-1 to A-4 and A-6 and
sentenced for life-imprisonment with the fine of Rs.1 lac to each of
the accused and in default, further R.I. for a period of two years
by each of them. However, so far as the muddamal
is concerned, the learned Special Judge directed for confiscation of
the same by the Department of Narcotic Control Bureau and the amount
of Rs.2 lac in cash and the amount accrued in the FDR of Kissan
Vikas Patra seized from A-5 were also ordered to be confiscated by
NCB Department and the forfeiture thereof and to be deposited in the
Government. It is under these circumstances, the present appeals
before this Court by the concerned accused.
It
may be recorded that since A-5 had expired, but as the order of
confiscation and forfeiture of cash amount and FDRs of Kissan Vikas
Patra, etc., was passed wife of A-5 claiming to be aggrieved by the
said part of the judgement and order of the learned Special Judge
has preferred the
appeal being Criminal Appeal No.1269 of 2008. It may also be
recorded that A-1 has preferred Criminal Appeal No.1826 of 2008, A-2
has preferred Criminal Appeal No.1398 of 2008, A-3 has preferred
Criminal Appeal No.1726 of 2008, A-4 has preferred Criminal Appeal
No.1779 of 2008, A-6 has preferred Criminal Appeal No.2550 of 2008,
all against the judgement and order of conviction, qua concerned
accused/appellant in the respective appeal.
We
have heard Mr.Popat, learned Counsel appearing for the appellant
wife of A-5 (Expired), Mr.D.A. Chaudhari, learned Counsel for the
appellant accused No.1, Mr.B.B. Naik, learned Counsel for the
appellant accused No.2, Mr.Dagli, learned Counsel for the
appellant accused No.3, Mr.Pratik Barot, learned
Counsel for the appellant accused No.4, Mr.Shethna, learned
Counsel for the appellant accused No.6, Mr.Hriday Buch, learned
Standing Counsel for the original complainant NCB in all the
appeals and Mr.K.P. Raval, learned APP for the State of Gujarat in
all the appeals.
We
have considered the records and proceedings of the Trial Court. We
have considered the judgement and order and the reasons recorded by
the learned Special Judge.
We
may state that henceforth party to the proceedings for the sake of
convenience shall be referred to as accused in trial Court. It
appears that it would be necessary to consider the contention on the
point of law raised by the learned Counsel for the respective
parties/accused. In order to deal with the contentions raised on
behalf of the respective parties/accused separately, it would also
be required for the Court to narrate the contentions raised for that
particular accused and the examination thereof by the Court. Apart
from the above, there are common contentions raised by the learned
Counsel appearing for all the accused, which may also be required to
be taken into consideration.
The
evidence as came on record, if the statements of the concerned
accused under Section 67 of the Act are considered in light of the
substance found of narcotic and the trafficking thereof by all the
accused step by step goes to show the involvement of the accused in
the conspiracy of drug trafficking, so as to attract the provisions
of N.D.P.S. Act constituting the alleged offences. But the common
contentions raised may first be taken into consideration.
COMMON
CONTENTIONS :
It
was contended by the learned Counsel appearing for all the accused
that the mandatory procedure as provided under Sections 41 and 42 of
NDPS Act (hereinafter referred to as the ‘Act’) have not been
followed by NCB Officers, therefore,
the whole case of the prosecution may fall to ground. Mr.Naik,
learned Counsel appearing for A-2 contended that the procedure as
was required to be followed was under Section 41(2) OF THE Act,
whereas the learned Counsel appearing for the other accused
contended that the
procedure as required was under Section 42 of the Act, which has not
been followed.
It
was the submission of the learned Counsel, Mr.Buch that as such
Section 43 of the Act would apply, since the search and
seizure of the truck and the car was at a public place and on a
public road, but he alternatively contended that even if this Court
is to find that the procedure under Section 42 of the Act was
required to be followed, then also such procedure has been followed
in the present case. It was submitted that even if this Court is to
find that the procedure under Section 41(2) of the Act was required
to be followed, then also the said procedure has been followed.
Therefore, it was contended that there is no lapse of any mandatory
procedure while undertaking search and seizure or the authorization
or any warrant, therefore, the contention raised on behalf of the
accused does not deserve to be accepted.
In
order to appreciate the contention, it would be necessary to refer
to the provisions of Sections 41, 42, and 43 of the Act.
Power
to issue warrant and authorisation. (1) A Metropolitan Magistrate or
a Magistrate of the first class or any Magistrate of the second
class specially empowered by the State Government in this behalf,
may issue a warrant for the arrest of any person whom he has reason
to believe to have committed any offence punishable under Chapter
IV, or for the search, whether by day or by night, of any building,
conveyance or place in which he has reason to believe any narcotic
drug or psychotropic substance in respect of which an offence
punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such
offence is kept or concealed.
Any
such officer of gazetted rank of the departments of central excise,
narcotics, customs, revenue intelligence or any other department of
the Central Government or of the Border Security Force as is
empowered in this behalf by general or special order by the Central
Government, or any such officer of the revenue, drugs control,
excise, police or any other department of a State Government as is
empowered in this behalf by general or special order of the State
Government, if he has reason to believe from personal knowledge or
information given by any person and taken in writing that any person
has committed an offence punishable under Chapter IV or that any
narcotic drug, or psychotropic substance in respect of which any
offence punishable under Chapter IV has been committed or any
document or other article which may furnish evidence of the
commission of such offence has been kept or concealed in any
building, conveyance or place, may authorise any officer subordinate
to him but superior in rank to a peon, sepoy, or a constable, to
arrest such a person or search a building, conveyance or place
whether by day or by nigh or himself arrest a person or search a
building, conveyance or place.
The
officer to whom a warrant under sub-section (1) is addressed and the
officer who authorised the arrest or search or the officer who is so
authorised under sub-section (2) shall have all the powers of an
officer acting under section 42.
42.
Power of entry, search, seizure and arrest without warrant or
authorisation. (1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any other
department of the Central Government or of the Border Security Force
as is embowered in this behalf by general or special order by the
Central Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the revenue, drugs
control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special
order of the State Government, if he has reason to believe from
personal knowledge or information given by any person and taken down
in writing, that any narcotic drug, or psychotropic substance, in
respect of which an offence punishable under Chapter IV has been
committed or any document or other article which may furnish
evidence of the commission of such offence is kept or concealed in
any building, conveyance or enclosed place, may, between sunrise and
sunset,-(a) enter into and search any such building, conveyance or
place; (b) in case of resistance, break open any door and remove any
obstacle to such entry; (c) seize such drug or substance and all
materials used in the manufacture thereof and any other article and
any animal or conveyance which he has reason to believe to be liable
to confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under Chapter IV relating to
such drug or substance: Provided that if such officer has reason to
believe that a search warrant or authorisation cannot be obtained
without affording opportunity for the concealment of evidence or
facility for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between sunset
and sunrise after recording the grounds of his belief. (2) Where an
officer takes down any information in writing under sub-section (1)
or records grounds for his belief under the proviso thereto, he
shall forthwith send a copy thereof to his immediate official
superior.
43.
Power of seizure and arrest in public places. Any officer of any of
the departments mentioned in section 42 may–
(a)
seize, in any public place or in transit, any narcotic drug or
psychotropic substance in respect of which he has reason to believe
an offence punishable under Chapter IV has been committed, and,
along with such drug or substance, any animal or conveyance or
article liable to confiscation under this Act, and any document or
other article which he has reason to believe may furnish evidence of
the commission of an offence punishable under Chapter IV relating to
such drug or substance; (b) detain and search any person whom he has
reason to believe to have committed an offence punishable under
Chapter IV, and, if such person has any narcotic drug or
psychotropic substance in his possession and such possession appears
to him to be unlawful, arrest him and any other person in his
company. Explanation.–For the
purposes of this section, the expression “public place”
includes any public conveyance, hotel, shop, or other place intended
for use by, or accessible to the public.
The
Constitution Bench of the Apex Court in the case of State of
Punjab v. Baldev Singh, reported in (1999) 6 SCC, 172 had an
occasion to interpret the provisions of Sections 41 and 42 of the
Act and it was observed, thus, at paragraphs 8 to 10 as under:-
8. Section 41
of the NDPS Act provides that a Metropolitan Magistrate or a
Magistrate of the first class or any Magistrate of the second class
specially empowered by the State Government in this behalf, may issue
a warrant for the arrest of and for search of any person whom
he has reason to believe to have committed any offence punishable
under Chapter IV. Vide sub-Section (2) the power has also been
vested in Gazetted Officers of the Department of Central
Excise, Narcotics, Customs, Revenue Intelligence or any other
Department of the Central Government or of Border Security Force,
empowered in that behalf by general or special order of the State
Govt. to arrest any person, who he has reason to believe to have
committed an offence punishable under Chapter IV or to search
any person or conveyance or vessel or building etc. with a view to
seize any contraband or document or other article which may
furnish evidence of the commission of such an offence, concealed
in such building or conveyance or vessel or place.
9. Sub-section
(1) of Section 42 lays down that the empowered officer, if has a
prior information given by any person, he should necessarily take it
down in writing and where he has reason to believe from his personal
knowledge that offences under Chapter IV have been committed or that
materials which may furnish evidence of commission of such
offences are concealed in any building etc. he may carry out the
arrest or search, without a warrant between sunrise and sunset, and
he may do so without recording his reasons of belief.
10. The
proviso to sub-section (1) lays down that if the empowered officer
has reason to believe that a search warrant or authorisation
cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an offender,
he may enter and search such building, conveyance or enclosed
place, at any
time
between sunset and sunrise, after recording the grounds of his
belief. Vide sub-section (2) of Section 42, the empowered
officer who takes down information in writing or records the
grounds of his belief under the proviso to sub-section (1),
shall forthwith send a copy of the same to his immediate official
superior. Section 43 deals with the power of seizure and arrest
of the suspect in a public place. The material difference
between the provisions of Section 43 and Section 42 is
that whereas Section 42 requires recording of reasons for belief
and for taking down of information received in writing with
regard to the commission of an offence before conducting
search and seizure, Section 43 does not contain any such provision
and as such while acting under Section 43 of the Act, the
empowered officer has the power of seizure of the article etc.
and arrest of a person who is found to be in possession of
any Narcotic Drug or Psychotropic Substances in a public place
where such possession appears to him to be unlawful.
Further,
the question again came up for consideration before the Apex
Court for the interpretation and compliance of the provisions of
Section 42 in the case of Kernail Singh Vs. State of Haryana,
reported in (2009) 8 SCC, 539, wherein the Apex Court, after
considering the subsequent decision in the case of Sajan Abraham
Vs. State of Kerala, reported in (2001) 6 SCC, 692 as well as
the decision in the case of Abdul Ibrahim Mansoori Vs. State of
Gujarat, reported in 2000(2) SCC, 513 recorded the conclusion
for the interpretation of Section 42 at paragraph 35, which reads as
under :-
35.
In conclusion, what is to be noticed is Abdul Rashid did not require
literal compliance with there requirements of Sections 42(1) and
42(2) nor did Sajan Abraham hold that the requirements ofSection
42(1) and 42(2) need not be fulfilled at all. The effect of the two
decisions was as follows :
(a)
The officer on receiving the information (of the nature referred
to in Sub-section (1) of section 42) from any person had to record it
in writing in the concerned Register and forthwith send a copy to his
immediate official superior, before proceeding to take action in
terms of clauses (a) to (d) of section 42(1).
(b)
But if the information was received when the officer was not in
the police station, but while he was on the move either on patrol
duty or otherwise, either by mobile phone, or other means, and the
information calls for immediate action and any delay would have
resulted in the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in writing the
information given to him, in such a situation, he could take action
as per clauses (a) to (d) of section 42(1) and thereafter, as soon as
it is practical, record the information in writing and forthwith
inform the same to the official superior .
(c)
In other words, the compliance with the requirements of Sections
42 (1) and 42(2) in regard to writing down the information received
and sending a copy thereof to the superior officer, should normally
precede the entry, search and seizure by the officer. But in special
circumstances involving emergent situations, the recording of the
information in writing and sending a copy thereof to the official
superior may get postponed by a reasonable period, that is after the
search, entry and seizure. The question is one of urgency and
expediency.
(d)
While total non-compliance of requirements of sub-sections (1) and
(2) of section 42 is impermissible, delayed compliance with
satisfactory explanation about the delay will be acceptable
compliance of section 42. To illustrate, if any delay may result in
the accused escaping or the goods or evidence being destroyed or
removed, not recording in writing the information received, before
initiating action, or non-sending a copy of such information to the
official superior forthwith, may not be treated as violation of
section 42. But if the information was received when the police
officer was in the police station with sufficient time to take
action, and if the police officer fails to record in writing the
information received, or fails to send a copy thereof, to the
official superior, then it will be a suspicious circumstance being a
clear violation of section 42 of the Act. Similarly, where the police
officer does not record the information at all, and does not inform
the official superior at all, then also it will be a clear violation
of section 42 of the Act. Whether there is adequate or substantial
compliance with section 42 or not is a question of fact to be decided
in each case. The above position got strengthened with the amendment
to section 42 by Act 9 of 2001.
The
pertinent aspect is that the Apex Court did observe for misuse of
the provisions by wrong doers as a major ground of acquittal and
such observations can be traced at paragraph 32 of the said
decision, which reads as under :-
32. Under
Section 42(2) as it stood prior to amendment such empowered officer
who takes down any information in writing or records the grounds
under proviso to Section 42(1) should forthwith send a copy thereof
to his immediate official superior. If there is total non-compliance
of this provision the same would adversely affect the prosecution
case and to that extent it is mandatory. But if there is delay
whether it was undue or whether the same has been explained or not,
will be a question of fact in each case, it is to be concluded that
the mandatory enforcement of the provisions of Section 42 of the Act
non-compliance of which may vitiate a trial has been restricted only
to the provision of sending a copy of the information written down
by the empowered officer to immediate official superior and not to
any other condition of the Section.
If
the provisions of Sections 41, 42 and 43 of the Act are considered,
in light of the aforesaid two decisions of the Apex Court, it does
appear that the intention of the legislature by Sections 41 and 42
of the Act is different than that of Section 43 of the Act as
evident from the language, which authorizes any officer or the
department mentioned in Section 42 for search, seizure, arrest and
detention in any public place or in transit in respect of any
narcotic drug or psychotropic substance in respect of which he has
reason to believe an offence punishable under Chapter IV has been
committed or along with such drug or substance in any animal or
conveyance or article is liable to be confiscated under the Act or
any document or any other article, which he has reason to believe
may furnish evidence of commission of offence punishable under
Chapter IV relating to such drug or substance.
Section
42 speaks about the search and seizure from any other place,
conveyance or enclosed place, while Section 43 speaks about the
search and seizure from public place or in transit. The wording of
Sections 41 and 42 with regard to the information taken in writing
has been deliberately omitted by the legislature in Section 43.
When any search or seizure is to be made in any public place or in a
vehicle in transit or any person to be arrested or detained from the
public place, it is not intended by the legislature to take down the
said information in writing.
The
examination of the contention, in light of the facts of the present
case goes to show that the search and seizure is made at a public
road on National Highway. Therefore, if the contention is to be
considered, keeping in view the facts of the present case, it can be
said that Section 43 would apply and not Section 42 or Section 41 as
sought to be canvassed and contended by the learned Counsel
appearing for the appellants. If the requirement of Section 43 of
the Act was to be complied with, the appellants would have hardly
any valid reason to contend non-compliance to any statutory
provisions and the reason being that the search and seizure had
taken place on the public place, therefore, as such the contention
raised on behalf of the learned Counsel for the appellants on the
premise that the requisite procedure as per Section 41 or Section 42
was not followed would have no legs to stand.
Apart
from the above, even if such contention is considered for the sake
of examination so far as search and seizure of the conveyance and
narcotic substance is concerned, as per the evidence on record of
Shri Umesh Pathak (PW-4) (Ex. 114) read with the evidence of Shri
Pavansing Gajesing Tomar, Zonal Director (PW-7) (Ex. 197), gist of
the information in writing by way of compliance of the provisions of
Section 42(2) of the Act was given to the Superior Officer and the
same was reduced into writing by Shri Pathak and such information
was received by Shri Pavansing Gajesing Tomar (PW-7), Superior
Officer and the same was confirmed in the deposition of Shri Tomar.
Therefore, it is not possible to agree with the contention that
there was any breach of the procedure required to be followed under
Section 42 of the Act.
The
contention that the procedure as required under Section 41(2) of the
Act has not been followed appears to be misconceived. Even if such
contention is considered for the sake of examination, it does appear
from the deposition of Shri Pavansing Tomar (PW-7) (Ex. 197) that
after he received information in writing from Shri Umesh Pathak
(PW-4) (Ex. 114), Shri Shailendra Lodha (PW-1) (Ex. 29) was also
called, the matter was discussed and thereafter it was decided by
all of them to proceed for further search. Therefore, it is not
possible to agree with the contention of the learned Counsel for A-2
that since the reasons to believe for commission of offence or the
authorization has not come by contemporaneous record there is
breach of provisions of Section 41(2) of the Act. If the compliance
to the said provisions is to be considered in light of the above
referred decision of the Apex Court in he case of Karnail Singh
(supra), more particularly the observations made at paragraph
312 it cannot be said that there was any total non-compliance to the
requirement of the provisions of Section 41(2) of the Act.
In
view of the above, the said contentions raised on behalf of all the
appellants deserve to be rejected.
It
was next contended by the learned Counsel appearing for he
appellants that the recording of the statements under Section 67 of
the Act should not be accepted in evidence, nor be relied upon by
this Court in tracing the guilt of the accused concerned. It was
submitted that the statements recorded were under duress and mental
and physical torture, therefore, it cannot be termed as voluntary.
It was submitted that though formal arrest was not effected at the
time when the statements were recorded under Section 67 of the Act,
of the concerned accused at the relevant point of time, but if
considered in light of the immediate arrest thereafter, it would
show that such statements were not voluntary. It was also contended
by the learned Counsel for the appellants that a holistic approach
is required to be made by the Court while considering the alleged
statements recorded under Section 67 of the Act of the concerned
accused. It was submitted that if the statements recorded under
Section 67 of the Act are excluded from the evidence led on behalf
of the prosecution, the substratum of prosecution case would be lost
and the accused would be entitled for the benefits thereof.
Section
67 of the Act for ready reference can be extracted as under :-
67.
Power to call for information, etc.- Any officer referred to in
section 42 who is authorised in this behalf by the Central
Government or a State Government may, during the course of any
enquiry in connection with the contravention of any provision of
this Act,–
(a)
call for information from any person for the purpose of satisfying
himself whether there has been any contravention of the provisions
of this Act or any rule or order made thereunder;
(b)
require any person to produce or deliver any document or thing
useful or relevant to the enquiry;
(c)
examine any person acquainted with the facts and circumstances of
the case.
The
Apex Court in the case of Kanhaiyalal v. Union of India, reported
in (2008) 4 SCC, 668, had an occasion to consider the question
on admissibility of the statements recorded under Section 67 of
N.T.P.S. Act. It was observed, inter alia, at paragraphs 41 to 45
as under :-
41.
A parallel may be drawn between the provisions of Section 67 of the
NDPS Act and Sections 107 and 108 of the Customs Act and to a large
extent Section 32 of the Prevention of Terrorism Act, 2002 and
Section 15 of the Terrorist and Disruptive Activities (Prevention)
Act, 1987. These are all special Acts meant to deal with special
situations and circumstances. While the provisions of the
Prevention of Terrorism Act, 2002, and TADA Act, 1987, are much
more stringent and excludes from its purview the provisions of
Sections 24 to 27 of the Evidence Act with regard to confession
made before a police officer, the provisions relating to
statements made during inquiry under the Customs Act and under the
NDPS Act are less stringent and continues to attract the provisions
of the Evidence Act. In the case of both the latter enactments,
initially an inquiry is contemplated during which a person may be
called upon to provide any information relevant to the inquiry as
to whether there has been any contravention of the provisions of
the Act or any Rule or Order made thereunder. At that stage the
person concerned is not an accused although he may be said to be in
custody. But on the basis of the statements made by him he could be
made an accused subsequently. What is important is whether the
statement made by the person concerned is made during inquiry prior
to his arrest or after he had been formally charged with the
offence and made an accused in respect thereof. As long as such
statement was made by the accused at a time when he was not under
arrest, the bar under Sections 24 to 27 of the Evidence Act would
not operate nor would the provisions of Article 20(3) of the
Constitution be attracted. It is only after a person is placed in
the position of an accused that the bar imposed under the aforesaid
provision will come into play.
42. Of
course, this Court has also held in Pon Adithan case (supra) that
even if a person is placed under arrest and thereafter makes a
statement which seeks to incriminate him, the bar under Article
20(3) of the Constitution would not operate against him if such
statement was given voluntarily and without any threat or
compulsion and if supported by corroborating evidence.
43. The
law involved in deciding this appeal has been considered by this
Court from as far back as in 1963 in Pyare Lal Bhargava#s case
(supra). The consistent view which has been taken with regard to
confessions made under provisions of Section 67 of the NDPS Act and
other criminal enactments, such as the Customs Act, 1962, has been
that such statements may be treated as confessions for the purpose
of Section 27 of the Evidence Act, but with the caution that the
Court should satisfy itself that such statements had been made
voluntarily and at a time when the person making such statement had
not been made an accused in connection with the alleged offence.
44. In
addition to the above, in the case of Raj Kumar Karwal v. Union of
India and others (1990) 2 SCC 409, this Court held that officers of
the Department of Revenue Intelligence who have been vested with
powers of an Officer-in-Charge of a police station under Section 53
of the NDPS Act, 1985, are not #police officers# within the meaning
of Section 25 of the Evidence Act. Therefore, a confessional
statement recorded by such officer in the course of investigation of
a person accused of an offence under the Act is admissible in
evidence against him. It was also held that power conferred on
officers under the NDPS Act in relation to arrest, search and
seizure were similar to powers vested on officers under the Customs
Act. Nothing new has been submitted which can persuade us to take a
different view.
45. Considering
the provisions of Section 67 of the N.D.P.S. Act and the views
expressed by this Court in Raj Kumar Karwal#s case (supra), with
which we agree, that an officer vested with the powers of an
Officer-in-Charge of a Police Station under Section 53 of the above
Act is not a #Police Officer# within the meaning of Section 25 of
the Evidence Act, it is clear that a statement made under Section 67
of the N.D.P.S. Act is not the same as a statement made under
Section 161 of the Code, unless made under threat or coercion. It
is this vital difference, which allows a statement made under
Section 67 of the N.D.P.S. Act to be used as a confession against
the person making it and excludes it from the operation of Sections
24 to 27 of the Evidence Act.
It
is an admitted position that the Officers of NCB in the present case
have recorded the statements. They are not the Police Officers
within the meaning of Section 25 of the Evidence Act. Therefore,
the statement made under Section 67 of N.D.P.S. Act is not the same
as the statements made under Section 161 of Cr.P.C., unless made
under threat or coercion. The statements under Section 67 of the
Act could be used as confession against the persons making it and it
excludes the application of the provisions of Sections 24 to 27 of
the Evidence Act.
Therefore,
confessional statements made by all the accused in the present case
are admissible in evidence.
The
attempt to contend that such statements were not voluntary or were
under any threat or compulsion, even if considered, would not result
into discarding of the confessional statements, but in such
circumstances the Court may consider the corroborative evidence to
such statements. Be it noted that corroboration of the confessional
statements is not a requirement under law, but is on the principles
of reasonable prudence, if the court finds that there was any
atmosphere of threat or compulsion prevailing at the time when such
statements were recorded. At this stage, we may also refer to the
Division Bench decision of this Court in the case of Najmunisha,
wife of Abdul Hamid Chandmiya @ Ladoo v. State of Gujarat, reported
in 2009 (3) GLR, 1982 and more particularly the observations
made at paragraph 25 of the said judgement, the relevant part of
which reads as under :-
25
Now while appreciating the evidence on record, what is established
is this that, on 10th of December, 1999, the secret
information was received by PW-2 Krishnaben Vinaykumar Chaube,
Intelligence Officer, which was communicated in the office
including Zonal Director Mr. Tomar. Mr. Tomar directed every one
to come at Income Tax Circle in the morning at 6 O’clock on 11th
of December, 1999. Thereafter, on the said day i.e. on 11th
of December, 1999, they all gathered and panchas were called. There
is some discrepancy about calling of panchas, but it is of no
consequence at all, as we have discussed above. What is found is
truthful version from PW-1 Bhimsing Kanchansing Mina, Panch, about
the incident, which contains the ring of truth. Panch has been
extensively cross-examined as afore-stated, but nothing is
brought out by the defence to disbelieve this witness. All the
officers have remained specific about the surveillance have been
put at the cross roads near Gandhi Road on the right side of Shapur
Gate and on the road coming from towards Kalupur Station. PW-4
Mr. Upendra Patel with one sepoy was standing with his
motorbike near Shapur Gate. On the opposite direction PW-2 Mrs.
Krishna Chaube stood with one sepoy and the panchas and other
Intelligence Officers and the sepois were in the jeep of NCB at
the end of Gandhi Bridge. It is also established beyond doubt
that the auto rickshaw bearing Registration No. GJ-9-T-2355
coming from towards Shahpur Darwaja was attempted to halt by PW-4
Mr. Upendra Patel. The said auto rickshaw did not stop and
rushed ahead consciously that raiding party was trying to stop the
rickshaw. After escaping journey of the rickshaw and chasing
by the raiding party, ultimately, rickshaw was stopped near the
house of accused No.4 and driver and the accused No.4 abandoned
on the rickshaw. It is also established beyond doubt from the
evidence that accused No.4 was well identified by the raiding party
though Mrs. Krishna Chaube had not found vehicle and she reached
at the spot on calling by Mr. Tomar. It is also proved beyond
doubt that the members of the raiding party, who were on
motorbike, on account of bike, which was drifted, got some
injuries. The gesture on the part of accused No.4 and the said
rikshaw driver establishes the conduct incriminating accused No.4.
The seizure of muddamal to the extent of 2.200 kgs of charas
has been proved through the evidence of PW-1, PW-2, PW-3 and PW-4
and nothing is suspicious even remotely about this. Thereafter,
it is also proved beyond doubt that the raid in the house of accused
No.4 followed, and as stated by witnesses PW-1, PW-2, PW-3 and
PW-4, charas of the quantity of 2.98 kgs was found and seized
from the possession of accused No.1. The contradiction as to from
where the rickshaw came in the evidence of panch witness is of no
consequence as ultimately it has been established with voluminous
evidence that rickshaw was abandoned near the house of accused
No.4. Preliminary testing of the bulk of charas found was done
and it was ascertained that substance was charas. The way in
which the incident has occurred and the story proceeds give
credence to the prosecution case as had the case been cooked up
against the accused, the Officers might have gone straightway to
the house of accused No.4 and might have seized the charas. All
the mandatory provisions of the NDPS Act are proved to have been
complied with. All the witnesses are consistent about the chasing
of the rickshaw and the finding of muddamal of charas. All the
witnesses are also consistent and credit-worthy as to the presence
of accused No.1 at the house when the house was searched, who had
identified herself as the wife of Abdul Hamid Chandmiya. It has
been proved beyond doubt that she had been offered the search of
officers present and that of the panch. She was also informed that
if she desired, she could be searched in presence of Executive
Magistrate or the Gazetted Officer. Behind a tin container in the
house, which was in control of accused No.1, from a jute plastic
bag, meant for cement, contained bulk of charas, which was found
and, hence, examining the case from all angles, it is found that,
there is not a single pin point loophole to come to the
conclusion that the present appellants were involved in a false
case and that the officers of NCB, including PW-1 Panch Bhimsing
Kanchansing Mina, had some enmity or grudge against this accused
to plant this bulk of charas in rickshaw and house to involve
them falsely.
It
is to be observed that when an officer records statements under
Section 67 of the Act, in exercise of his official duty, the
presumption would be under Section 114 of the Evidence Act, at least
to the extent that a judicial access has been regularly performed
and, therefore, no Courts should support to appreciate the evidence
with presumption that such statements must have been elicited by
giving threats or inducement to the persons concerned, unless these
categoric circumstances are proved from the evidence against
presumption. It was futher observed in the very paragraph that
when the statement under Section 67 of N.D.P.S. Act is recorded
it becomes very important piece of evidence and if it is found from
the scrutiny that the statement is voluntary, it is a formidable
evidence against the accused. It must be noted that when the matter
is looked upon from other angle, one more presumption should be
raised that each person, whether he or she is accused or not, is
bound to give true version of fact in issue when they are summoned
by the authorities to state, so as empowered by the law. It is the
duty implicitly cast upon the person called upon to give information
to the officers that whatever they say is true.
The
learned Counsel for the appellants did rely upon certain
observations of the Apex Court in the case of Union of India v.
Bal Mukund and Ors., reported in (2009) 12 SCC, 161 for
contending that the holistic approach is required to be made by the
Court when the conviction is solely based on his confession as made
by he learned trial Judge in the present case.
The
pertinent aspect is that the Apex Court, in the said decision, has
not taken any different view than as was expressed by it in the case
of Kanhaiyalal v. Union of India (Supra). The another aspect
is that the Apex Court, in that case, was considering the matter
against the judgement of acquittal delivered by the High Court,
wherein the consideration and yardstick would be different than that
of hearing the appeal against the order of conviction. The Apex
Court in the said decision further had recorded at paragraph 16 that
no explanation was offered as to why mandatory requirement for
compliance to the provisions of Section 42 was not made. The Apex
Court had further found that if the accused there were interrogated
while in custody, it cannot be said that there was any voluntary
statements made. It is in this light of the fact situation the
observations made by he Apex Court are required to be considered.
If
the facts of the present case are examined, as observed earlier, it
is undisputed position that the confessional statements are recorded
under Section 67 of the Act and such are admissible in evidence.
Further the presumption as such would be for considering such
statements as valid as having been recorded in the official capacity
by the officers of NCB. It is also an admitted position that prior
to the arrest the statements have been recorded. No evidence has
come on record to show that the statements were recorded under
threat or duress or that they were not voluntary. The application
for retraction of the confessions made by the accused is not proved
during the trial, so as to dilute the evidentiary value of the
confessional statements. The another aspect is that in the evidence
of the witnesses examined namely Shailendra Lodha (PW-1) (Ex.29),
who recorded the statement of A-1 at Ex.34, A-2 at Ex.35, A-3 at
Ex.36, A-4 at Ex.37 and the further statement of A-1 at Ex. 39, the
futher statement of A-2 at Ex.40, the further statement of A-3 at
Ex.41, the further statement of A-4 at Ex.42 and the additional
statement of A-1 at Ex.57, no evidence has come on record to show
from their testimony that any threat or coercion existed at the time
when such statements were recorded. In the same manner, in the
deposition of Shri Umesh Pathak (PW-4) (Ex. 114), in the statements
recorded of A-5 (Ex.123 and 124) and in the statements recorded of
the wife of A-5 (Ex.126) and in the statements recorded of A-6
(Ex.131), it has not come out that there was any threat or coercion
applied by the said officer for extracting or compelling A-5 or the
wife of A-5 or A-6 to record such statements. Under these
circumstances, in absence of any material and reliable evidence, it
is not possible for this Court to accept the contention that the
statement recorded under Section 67 of the accused or the wife of
A-5 cannot be considered in evidence for tracing the guilt of the
concerned accused.
Apart
from the above, even if the corroboration is to be traced in light
of the confession made by A-1, the Charas is found from the
conscious possession of A-1 and A-2 as well as from A-5. The same is
coupled with the evidence came on record for the talk over the
telephone between the accused, the panchnamas of seizure of the
psychotropic substance, FSL report confirming the same as narcotic
substance and the other evidences connected therewith including the
use of vehicles, and the money realized by the concerned accused and
the amount found from A-5 including the investment made by him.
Therefore, it is not a case where there is absolutely no
corroboration to the confessional statements, but it does appear
that the statement recorded under Section 67 of the Act are
corroborated by the other material and reliable evidence led by the
prosecution.
In
view of the above, the contention raised by the learned Counsel for
the accused-appellants for excluding the confessional statements
from the evidence led by the prosecution fails.
Much
grievance was raised by the learned Counsel appearing for the
concerned accused A-1 and A-2, by contending that the vehicle
was at Surat and the bill was also sanctioned for such purpose. It
was, therefore, submitted that the case of the prosecution that the
vehicle was used for search and seizure at Narol could be said as
falsified of its own record and, therefore, the accused would be
entitled to the benefits thereof.
The
examination of the aforesaid contention shows that in the log book
Ex.67 on 29.9.2001, there is already an entry for use of the vehicle
to Aslali (the place at which the raid was carried out) and back.
Therefore, the said evidence is supporting the case of the
prosecution. However, the alleged petrol bill of Surat is also
dated 29.9.2001, which has come on record at Ex.70. If the same is
considered in light of the deposition of the concerned witness
Shri Pavansing G. Tomar (PW-7) (Ex. 197), he did submit admit the
sanctioning of the bill, but he has stated that the same is by
mistake. It deserves to be recorded that normally when the bills
are produced before the sanctioning authority for conveyance, it is
required for the sanctioning authority to examine the same, but such
a microscopic examination for each and every bill, even if
considered, the witness has stated that the same is by mistake. No
other evidence has come on record to support the defence of the
accused concerned that the vehicle, in fact, was at Surat at the
time when the raid was carried out and not at Ahmedabad. In any
case, the bill does not stipulate the time at which the petrol was
purchased and the bill was issued. The time of the raid, even if
considered, in the morning hours, up to noon time, then also it is
not an impossible situation that the vehicle could not have reached
to Surat on the same day prior to 12 O’clock night. Therefore, the
existence of the bill or the sanction by mistake as per the
deposition of the witness and in absence of any other reliable
material evidence coming on record to show that the vehicle in fact,
was at Surat at the time when the raid was carried out, it is not
possible to conclude that such would be fatal to the case of the
prosecution and the accused would be entitled to the benefits
thereof. Therefore, the said contention of the learned Counsel for
the concerned accused deserves to be rejected.
It
was next contended by the learned Counsel appearing for all the
appellants accused that there is no conspiracy proved, nor
abatement proved as per Section 29 of NDPC Act.
It
was next contended by the learned counsel for the appellants-accused
that there is no sufficient material available on record on the
aspects of conspiracy, therefore, the conviction is based on without
sufficient material of conspiracy. The Apex Court in the case of
State (NCT of Delhi) Vs.
Navjot Sandhu (supra)
had an occasion
to consider the said aspects and at para 97 to 101, the Apex Court
observed thus –
97.
Mostly, the conspiracies are proved by the circumstantial evidence,
as the conspiracy
is seldom an open affair. Usually both the existence of the
conspiracy and its objects have to be inferred from the circumstances
and the conduct of the accused. (Per Wadhwa, J. in Nalini’s case
(supra) at page 516). The well known rule governing circumstantial
evidence is that each and every incriminating circumstance must be
clearly established by reliable evidence and “the circumstances
proved must form a chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely drawn and no
other hypothesis against the guilt is possible.” G.N. Ray, J. in
Tanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this Court
should not allow the suspicion to take the place of legal proof.
98. As
pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC
665], ” in most cases it will be difficult to get direct
evidence of the agreement, but a conspiracy can be inferred even from
circumstances giving rise to a conclusive or irresistible inference
of an agreement between two or more persons to commit an offence.”
In this context, the observations in the case Noor Mohammad Yusuf
Momin vs. State of Maharashtra (AIR 1971 SC 885) are worth nothing:
“[I]in
most cases proof of conspiracy is largely inferential though the
inference must be founded on solid facts. Surrounding circumstances
and antecedent and subsequent conduct, among other factors,
constitute relevant material.”
99.
A few bits here and a few bits there on which the prosecution relies
cannot be held to be adequate for connecting the accused in the
offence of criminal conspiracy. The circumstances before, during and
after the occurrence can be proved to decide about the complicity of
the accused. [vide Esher Singh vs. State of A.P., 2004 (11) SCC 585].
Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said
that the evidence from which a jury may infer a criminal conspiracy
is almost invariably to be found in the conduct of the parties. In
(AIR 1945 PC 140), the Privy Council warned that in a joint trial
care must be taken to separate the admissible evidence against each
accused and the judicial mind should not be allowed to be influenced
by evidence admissible only against others. “A co-defendant in a
conspiracy trial”, observed Jackson, J, “occupies an uneasy
seat” and
“it
is difficult for the individual to make his own case stand on its own
merits in the minds of jurors who are ready to believe that birds of
a feather are flocked together.”
[vide
Alvin Krumlewitch vs. United States of America, (93 L.Ed. 790).
In
Nalini’s case, Wadhwa, J pointed out, at page 517 of the SCC, the
need to guard against prejudice being caused to the accused on
account of the joint trial with other conspirators. The learned Judge
observed that “there is always difficulty in tracing the precise
contribution of
each
member of the conspiracy but then there has to be cogent and
convincing evidence against each one of the accused charged with the
offence of conspiracy”. The pertinent observation of Judge Hand
in U.S. vs. Falcone (109 F. 2d,579) was referred to:
“This
distinction is important today when many prosecutors seek to sweep
within the dragnet of conspiracy all those who have been associated
in any degree whatever with the main offenders.”
At
paragraph 518, Wadhwa, J, pointed out that the criminal
responsibility for a conspiracy requires more than a merely passive
attitude towards an existing conspiracy. The learned Judge then set
out the legal position regarding the criminal liability of the
persons accused of the conspiracy as follows:
“One
who commits an overt act with knowledge of the conspiracy is guilty.
And one who tacitly consents to the object of a conspiracy and goes
along with the other conspirators, actually standing by while the
others put the conspiracy into effect, is guilty though he intends to
take no active part in the crime.”
101.
One more principle which deserves notice is that cumulative effect
of the proved circumstances should be taken into account in
determining the guilt of the accused rather than adopting an
isolated approach to each of the circumstances. Of course, each one
of the circumstances should be proved beyond reasonable doubt.
Lastly, in regard to the appreciation of evidence relating to
conspiracy, the Court must take care to see that the acts or conduct
of the parties must be conscious and clear enough to infer their
concurrence as to the common design and its execution. K.J. Shetty,
J, pointed out in Kehar Singh’s case that “the innocuous,
innocent or inadvertent events and incidents should not enter the
judicial verdict.”
Therefore,
in light of the cumulative effect of the circumstances, if
considered, with the contentions and the statements recorded under
Section 67 of the Act of all the accused, the material found from
the possession of A-1, A-2 and A-5, the cash seized, it is clear
that there is, inter se, agreement of mind between all the accused,
not only to deal in drug trafficking business, but they have been
doing it since for a long time and it is on account of the said
conspiracy to continue with the drug trafficking in the Society, the
narcotic substance was brought and was to be sold, though prohibited
under law. Therefore, it is not possible to accept the contention
of the learned Counsel for the accused that there was no conspiracy
or abatement as proved by the prosecution. Therefore, the said
contention fails.
INDIVIDUAL
CONTENTIONS :-
It
was next contended by the learned Counsel appearing for A-1 that the
defence on behalf of A-1 had examined Shri Balaji Gourju (PW-12)
(Ex.237) for showing the presence of A-1 on duty up to 25th
September, 2001. It was, therefore, submitted that it is not
possible for any person to reach Ahmedabad on 29th
September, 2001 in the early morning, if he starts driving the truck
from Kashmir to Ahmedabad. It was, therefore, submitted that if the
said evidence is considered, it could be said that the story of the
prosecution for involvement of A-1 is falsified and as per the
defence A-1 is wrongly planted in the alleged offence.
Section
103 of the Evidence Act relevant at this stage reads as under :-
103.
Burden of proof as to particular fact. – The burden of proof as to
any particular fact lies on that person who wishes the Court to
believe in its existence, unless it is provided by any law that the
proof of that fact shall lie on any particular person.
It
deserve to be recorded that for proving the alibi so as to frustrate
the case of the prosecution the burden lies upon the accused to show
the circumstances beyond reasonable doubt. It is only after the
burden is discharged by the accused beyond reasonable doubt, the
same can be considered together with the case of the prosecution.
Such evidence cannot be considered so as to create doubt in the case
of the prosecution on a mere examination of any witness, but the
evidence so led has to be of a proved fact beyond reasonable doubt,
which may frustrate the evidence led by the prosecution. The degree
of proof in case of proving the alibi would be the same as required
for the prosecution in proving the guilt of the accused. The
examination of the facts of the present case in light of the
aforesaid shows that the evidence of the witness of A-1 at the most
may be considered for the proof of the presence recorded in the
presence register, but no other witness has been examined to show
that A-1 was actually present on duty and he had discharged the duty
on that day. Further, even if it is considered for the sake of
examination that A-1 was present on duty up to 25th
September, 2001, then also it has not come on record about the time
at which had started driving the vehicle. In any case, it is not
impossible for a driver of the truck to reach Ahmedabad on 29th
September, 2001, if the driving is continuous and if one
starts after duty hours on 25th itself. Under these
circumstances, it is neither possible to hold that the burden of
proving the alibi was discharged as per the requirement of law by
A-1, nor the same can be said sufficient to frustrate the evidence
led by the prosecution for the presence of A-1 on 29th
Morning at the time when the raid was carried out. Hence, the said
contention deserves to be rejected.
It
was next contended by the learned Counsel appearing for A-2 that the
evidence of Hasinabanu Gulam Muhmad Ganai DW-1 (Ex. 208), Mahmad
Faruk Abdul Karim Ludaniya DW-2 (Ex. 209), Hasanali Kadarmiya Diwan
DW-3 (Ex. 210), Sabbirbhai Y. Begwala DW-4 (Ex. 211) and
Pravinchandra T. Gajjar DW-8 (Ex.219) would show that A-2 has been
wrongly planted by NCB Officers and the same would frustrate the
case of the prosecution. In our view applying the same yardstick as
observed earlier in the evidence led by A-1, upon the appreciation
and reappreciation, it is not possible to accept the contention as
sought to be canvassed by the learned Counsel appearing for A-2. As
such, the burden is not fully discharged, nor the same is sufficient
to frustrate the case of the prosecution on the basis of
unimpeachable evidence led by the prosecution not only for
involvement of A-2 by the confessional statement, but also by the
material of narcotic substance found from the conscious possession
of A-2, therefore, the said contention deserves to be rejected.
It
was next contended by the learned Counsel appearing for A-4 that in
view of the deposition of its witness, Nazmin Iqbalbhai Ansari DW-5
(Ex.214), Aiyub G. Shaikh DW-6 (Ex.217), Allahrakha M. Arab DW-7
(Ex.218), Ganibhai Rasulbhai Mansuri DW-9 (Ex.223), Sureshbhai M.
Rathwa Dw-10 (Ex. 228), and Bharatbhai Dungarsinhbhai Lakhtariya
DW-11 (Ex. 229) would go to show that A-4 has been wrongly planted
by NCB Officer in the alleged offence.
We
have gone through the evidence on record of the aforesaid witnesses.
It is not possible for us to conclude that the burden of proving
the alibi was discharged, nor is it possible for us to consider such
evidence as sufficient to frustrate the case of the prosecution
against A-4 on the basis of unimpeachable evidence coming on record
for the confessional statements of A-4 as well as the involvement in
the business of drug trafficking of A-4, therefore, the said
contention of the learned Counsel fails.
It
was next contended by the learned Counsel appearing for A-6 that
nothing was recovered from the possession of A-6, therefore, A-6
would be entitled for the acquittal. In furtherance to the
submission it was also contended by the learned Counsel that the
alleged confessional statement was under coercion and duress and not
in free atmosphere, therefore, the same may not be used against A-6.
It was contended that the statement was retracted by A-6 and the
learned Counsel at the time of hearing tendered a copy of the
application alleged to have been submitted before the Chief Judicial
Magistrate.
As
such the statement of retraction is not a part of record in the
paper book, which has been considered by us. Further, the pertinent
aspect is that even if the said application of retraction is to be
considered, it bears no date, nor any order passed by the learned
Magistrate. Under these circumstances, it is not possible for us to
accept the contention that the statement was retracted and/or if
retracted well in time by A-6. In any case, even if the alleged
retraction is considered, then also, as stated above, there is
sufficient reliable evidence coming on record for direct involvement
of A-6 in the trafficking of narcotic substance i.e. Charas,
which was found in possession of A-5. Therefore, the contention
raised by the learned Counsel for A-6 does not deserve to be
accepted.
The
learned Counsel appearing for A-2 raised the contention that
normally the panchnamas for seizure should have been prepared at the
place of the offence and there was no valid reason for not preparing
the panchnamas at the place of raid. He contended that
non-preparation of the panchnamas at the place of the raid would
vitiate the procedure of seizure, therefore, the accused would be
entitled to the benefits of the same.
The
contention deserves to be examined in light of the evidence on
record. Shailendra Lodha, NCB Officer (PW-1) (Ex. 29) in his
deposition has stated that after positive result on testing at site,
as the place was a public place and was with heavy traffic and no
electronic weighing machine was available and if there is vibration,
the weighing machine would not show the correct weight, therefore,
it was decided that the further seizing and sampling procedure
should be conducted in the office. Therefore, it is not a matter
where no sufficient explanation has come on record. Not only that,
but in the panchanamas (Ex.91), it was expressly recorded that the
place was on the National Highway, therefore, it was not possible
for taking the weight of the material and hence, 14 packets were
handed over to panchas. It was also stated in the panchnamas that
the truck is loaded with apples. Therefore, it was not possible to
take the search of the truck and hence, ultimately all proceeded
towards NCB Office. Such evidence goes to show that there is
sufficient explanation and does not create doubt about the manner
and method of conducting seizure by the NCB Officers on the ground
as sought to be canvassed. Hence, the said contention fails.
It
was next contended by the learned Counsel Mr.Naik for A-2 that the
panchas should have been of the same locality where the search was
carried out, but the panchas were either working in the same office
or working in the Income Tax Department, therefore, it was submitted
that the case of the prosecution should not be believed by the Court
and the accused would be entitled to the benefits.
It
is not a sine qua non that the panch must be of the same
locality. It is for the defence to put forward the case of
concoction of panchas and in absence thereof, un-contradicted
evidence which has come on record of panchas cannot be discarded.
Further, working in the office of any Government Organization
would not disqualify the persons from acting as a panch, unless the
accused in the defence has been able to show that there was any
animosity with the accused by the said panch witness from whom the
truth cannot be expected. Therefore, the said contention raised by
Mr.Naik deserves to be rejected.
It
was next contended by the learned Counsel Mr.Naik for the appellant
A-2 that the recording of the statement under Section 313 is in
stereotype manner without raising separate question, therefore, the
mandatory procedure has not been followed at the time of trial.
Hence, the final verdict can be said as vitiated.
We
have considered the statements recorded of all the accused under
Section 313 by showing the incriminating material against them. The
pertinent aspect is that the evidence was common and in majority the
incriminating material is also common, since as per the prosecution
there was also charge of abatement and criminal conspiracy as
provided under Section 29 of the Act. If there is charge under
Section 29 of the Act of abatement and criminal conspiracy,
incriminating material against all the accused is required to be put
while recording the statements under Section 313 of Cr.P.C., and
that was so done by the learned Trial Judge, therefore, there is no
illegality as sought to be canvassed by the learned Counsel. Hence,
the said contention cannot be accepted.
The
contention raised by the learned Counsel appearing for the wife of
A-5, to the extent of assailing the order of confiscation of the
items, which were found from the possession of A-5 namely; the FDRs
and KVPs in the name of the wife of A-5 deserves consideration.
Section 62 of the Act reads as under:-
62.Confiscation
of sale proceeds of illicit drugs or substances.62. Confiscation of
sale proceeds of illicit drugs or substances. Where any narcotic drug
or psychotropic substance is sold by a person having knowledge or
reason to believe that the drug or substance is liable to
confiscation under this Act, the sale proceeds thereof shall also be
liable to confiscation.
As
such there is also an express provision provided under the Act for
confiscation of the narcotic drugs or psychotropic substance or the
controlled substance, but it also provides for the enabling power to
confiscate the sale proceeds thereof and once the evidence is
proved, the sale proceeds of such narcotic/psychotropic substance is
also liable to be confiscated Section 452 of Cr. P.C., and Section
454 of Cr. P.C., which are relevant for the purpose of this issue
read as under:-
452.
Order for disposal of property at conclusion of trial.
(1)
When an inquiry or trial in any Criminal Court is concluded, the
court may make such order as it thinks fit for the disposal, by
destruction, confiscation or delivery to any person claiming to be
entitled to possession thereof or otherwise, of any property or
document produced before it or in its custody, or regarding which any
offence appears to have been committed, or which has been used for
the commission of any offence.
(2) An order may be made under
sub-section (1) for the delivery of any property to any person
claiming to be entitled to the possession thereof, without any
condition or on condition that he executes a bond with or without
sureties, to the satisfaction of the court, engaging to restore such
property to the court if the order made under subsection (1) is
modified or set aside on appeal or revision.
(3) A Court of
Session may, instead of itself making an order under sub-section (1),
direct the property to be delivered to the Chief Judicial Magistrate,
who shall thereupon deal with it in the manner provided in sections
457, 458 and 459.
(4) Except where the property is livestock
or is subject to speedy and natural decay, or where a bond has been
executed in pursuance of sub-section (2), an order made under
sub-section (1) shall not be carried out for two months, or when an
appeal is presented, until such appeal has been disposed of.
(5)
In this section, the term “property” includes, in the case
of property regarding which an offence appears to have been
committed, not only such property as has been originally in the
possession or under the control of any party, but also any property
into or for which the same may have been converted or exchanged, and
anything acquired by such conversion or exchange, whether immediately
or otherwise.
454.
Appeal against orders under section 452 or section 453.
(1)
Any person aggrieved by an order made by a court under section 452 or
section 453, may appeal against it to the court to which appeals
ordinarily lie from convictions by the former court.
(2) On
such appeal, the Appellate Court may direct the order to be stayed
pending disposal of the appeal, or may modify, alter or annul the
order and make any further orders that may be just.
(3) The
powers referred to in sub-section (2) may also be exercised by a
court of appeal, confirmation or revision while dealing with the case
in which the order referred to in sub-section (1) was made.
As
such no claim was made by the wife of A-5 before the trial Court.
Further, at the time when the further statement of A-5 under Section
313 of Cr.P.C., was recorded, he had not claimed that the muddamal
recovered including the FDRs and KVPs were not belonging to him but
were belonging to his wife. As per the statement recorded under
Section 67 of the Act of A-5 as well as the wife of A-5 the money
was earned also out of the sale of drugs and the said amount was
invested in the name of the wife of A-5. As per the record all
items; cash, FDRs and KVPs
were seized as muddamal
and the same was also reported to the trial Court. Under these
circumstances, in absence of any claim lodged by A-5 or the wife of
A-5, either by separate application or in further statement under
Section 313, it could be said that the learned Trial Judge was
justified in passing the order of confiscation. However, two fact
situations arise for consideration in the present case; one is that
before A-5 could be held guilty by the learned Judge he had expired.
Therefore, the case abated
against him, though for all purpose the guilt is traced by the trial
Judge of A-5 for involvement in the alleged offences, but the fact
remains that accused A-5 could not be convicted, since he had
expired prior to the passing of the final judgement and order. The
second circumstance is that all the FDRs and KVPs are not in the
name of A-5, but are also in the name of the wife of A-5. The wife
of A-5 is not arrayed as accused in the case. Therefore, she could
be said to be a third party, who may have interest in such FDRs and
KVPs.
It
was contended by the learned Counsel for the wife of A-5 that the
present claim though is not raised before the trial Court could be
raised before the appellate Court by the wife of A-5, since the
appeal is a continuous proceeding. It was submitted that this Court
may consider the claim and may direct for return of cash, FDRs and
KVPs to the wife of A-5. The learned Counsel restricted such prayer
for these items only and did not claim for return of the narcotic
substance, which was recovered and seized from the possession of
A-5.
It
appears to us that as such the learned Judge has not made any
observations or discussions on the aspects of confiscation of the
cash amount and FDRs/KVPs. So far as the cash amount is concerned,
if the matter is examined in light of the provisions of Section 62
of the Act read with the confessional statements of A-5, it has been
proved that the sale proceeds are realised from the sale of
narcotic substance. Therefore, all amounts in the hands of A-5 being
the sale proceeds of
narcotic substance were liable to be confiscated and rightly
confiscated by the learned trial Judge. However, so far as FDRs and
KVPs in the name of the wife of A-5 is concerned, since she was not
the accused in the trial, it would be required to examine as to
whether such amount, though realized from the sale of narcotic
substance will attract the forfeiture if in the hands of the person,
who is not arrayed as accused in the case. Further, the aspects may
also be required to be considered
by the Court as to whether the nature of title of the property of
FDRs and KVPs would remain the same, if the husband, out of the sale
of narcotic substance has given away the amount to his wife. It has
also not come on record as to whether the amount was given away by
A-5 to his wife as his own property retaining his claim over the
amount or was gifted as sthreedhan
or otherwise. It has come on record in the confessional statements
of the wife of A-5 that they have other property including the
agricultural land. Therefore, it will have to be
examined as to whether the amount of FDRs and KVPs are formed part
of any lawful income of agriculture or rental income or not. It is
only after such full-fledged inquiry is undertaken by giving
opportunity to the concerned parties, it can be concluded as to
whether such KVPs and FDRs are liable to be confiscated or not or
that the same is required to be returned to the holder of KVPs and
FDRs namely; the wife of A-5 or not. As no inquiry whatsoever has
been held, we find that order passed by the learned trial Judge
confiscating of the muddamal
deserves to be modified to the extent of confiscation of KVPs and
FDRs standing in the name of the wife of A-5, but the order passed
by the learned trial Judge for confiscation of the cash amount and
FDRs/KVPs standing in the name of A-5, if any, does not deserve to
be interfered with.
It
was lastly contended by the learned Counsel for A-1 to A-4 and A-6
that the punishment imposed by the trial Court is life-imprisonment,
whereas as per the provisions of the Act, the maximum punishment is
20 years. It was submitted that the learned trial Judge has
committed grave error in imposing sentence of life-imprisonment and
it was also submitted that considering the facts and circumstances,
the punishment deserves to be imposed would be less than 20 years,
keeping in view the age and family circumstances that the accused
concerned.
If
the provisions of Section 20(C) of the Act is considered, it does
appear that the maximum punishment is 20 years with the fine of not
less than Rs.1 lac (Rupees one lac). It is true that the
huge quantity of narcotic substance i.e. Charas is
not only found in conscious possession of A-1, A-2, A-5, but
considering the facts and circumstances, it appears to us that it is
not a case where the punishment deserves to be imposed less than the
maximum punishment upon each of the accused. If in such a serious
offence of drug trafficking in huge quantity, the maximum punishment
is not imposed, the purpose of the Act and the deterrent effect
would be frustrated. However, even if maximum punishment is
considered, it will not be the imprisonment for
life, but would be 20 years. Therefore, the conviction imposed by
the learned trial Judge upon A1 to A-4 and A-6 deserves to be
modified.
On
the aspects of consideration of the confessional statements, it is
well settled that if the same can be considered as the material
evidence for tracing the guilt of the accused, who has given
confessional statements provided the Court is satisfied about the
voluntariness of the confessional statements, but at the same time
such confessional statements can also be considered
together with the other evidence for trading the guilt of the
co-accused, but in such circumstances, there should be existence of
other evidence. The reference may be made to the decision of the
Apex Court in the case of Bhana Khalpabhai Patel v.
Assistant Collector of Customs, Bulsar and Anr.,
reported in 1998(2) GLR, 1319
and more particularly the observations made at paragraph 5 of the
said decisions.
If
the matter is examined in light of the aforesaid and on
reappreciation of evidence, it does appear that there is no breach
of the provisions of Sections 42 and 43 of the Act. Further, there
is also no illegality in the procedure of search and seizure. The
statements recorded under Section 67 of the Act have been rightly
found to be admissible in the evidence in support of the case of the
prosecution. It further appears that the conscious possession of
huge narcotic substance found from A-1, A-2 and A-5. The conjoint
reading of the statements recorded under Section 67 of the Act read
with the other material evidence coming on record in the testimony
of the witnesses examined by the prosecution, it appears that the
accused were regularly dealing in drug trafficking business. The
learned Special Judge has rightly found that the charge of abatement
and conspiracy is also proved. It appears to us that the learned
Special Judge has rightly found A-1 to A-4 as well as A-6 guilty for
the offence under Sections 8(C) and 20(B) read with Section 29 of
the Act. The guilt and conviction could also be recorded of A-5,
however, but for the fact that A-5 had expired after recording of
the statements under Section 313 of Cr.P.C., the same is not
recorded of A-5.
In
view of the aforesaid, the conviction recorded by the learned
Special Judge of A-1 to A-4 and A-6 deserves to be modified to the
extent that the sentence shall be of 20 years and the order for
imposition of sentence for life shall stand modified to the extent
of imprisonment for 20 years. The other part of the order for
imposition of fine does not deserve to be interfered with. So far
as the order for confiscation of muddamal is concerned, in
view of the observations made hereinabove, the cash amount recovered
from A-5 and the FDRs/KVPs in the name of A-5 shall stand
confiscated and the order passed by the learned Special Judge is not
required to be interfered with, however, so far as the FDRs and KVPs
in the name of the wife of A-5 is concerned, the order passed by the
learned Special Judge for forfeiture is modified to the effect that
a separate inquiry shall be held by the learned Special Judge on the
aspect of forfeiture in light of the observations made by this Court
in the present judgement and at the outcome of the inquiry the
appropriate orders shall be passed for confiscation and/or the
entrustment of the said FDRs or KVPs to the person entitled for the
same at the conclusion of the inquiry by the learned Special Judge.
The opportunity of leading evidence and of hearing to the wife of
A-5 as well as the prosecution/NCB Department, if they are so
desirous, to lead the evidence shall be given by the learned Special
Judge. The aforesaid inquiry shall be completed preferably within a
period of six months from the date of receipt of the order of this
Court. The judgement and order of the learned Special Judge shall
stand modified to the aforesaid extent. The Appeals are allowed to
the aforesaid extent. The R & Ps be sent back to the trial
Court.
After
the pronouncement of the order, Mr.Dharmesh Patel for Mr.Shethna,
learned Counsel for Appellant A-6 states that A-6 is on regular
bail and he prays for time to surrender may be granted to A-6, since
he would be desirous to go before the higher forum. Considering the
facts and circumstances, A-6 shall surrender on or before 16th
July, 2010.
(Jayant
Patel, J.)
10.5.2010 (Z.
K. Saiyed, J.)
vinod
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