{"id":223106,"date":"2010-01-27T00:00:00","date_gmt":"2010-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abdul-vs-2-criminal-on-27-january-2010"},"modified":"2017-08-06T12:42:51","modified_gmt":"2017-08-06T07:12:51","slug":"abdul-vs-2-criminal-on-27-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abdul-vs-2-criminal-on-27-january-2010","title":{"rendered":"Abdul vs 2 Criminal on 27 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Abdul vs 2 Criminal on 27 January, 2010<\/div>\n
Author: Ravi R.Tripathi,&Nbsp;Honourable J.C.Upadhyaya,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/718\/2007\t 41\/ 75\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 718 of 2007\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 994 of 2007\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 1440 of 2008\n \n\n \n\n\n \n\nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAVI R.TRIPATHI  \n\t\t\tAND\n \n\nHONOURABLE\nMR.JUSTICE J.C.UPADHYAYA\n \n \n=========================================================\n<\/pre>\n
1<\/span><\/p>\n
Whether
\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
2<\/span><\/p>\n
To
\n\t\t\tbe referred to the Reporter or not ?\n<\/p>\n
3<\/span><\/p>\n
Whether
\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
4<\/span><\/p>\n
Whether
\n\t\t\tthis case involves a substantial question of law as to the
\n\t\t\tinterpretation of the constitution of India, 1950 or any order
\n\t\t\tmade thereunder ?\n<\/p>\n
5<\/span><\/p>\n
Whether
\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
=========================================================<\/p>\n
ABDUL
\nSALIM ABDUL MUNAF SHAIKH ALIAS SALIMBHAI & 1 – Appellant(s)<\/p>\n
Versus<\/p>\n
NARCOTICS
\nCONTROL BUREAU & 1 – Opponent(s)<\/p>\n
=========================================================<\/p>\n
Appearance :\n<\/p>\n
MR
\nDJ BHATT for
\nAppellant(s) : 1 – 2.\n<\/p>\n
MR KT DAVE for Opponent(s) : 1,
\nMR DEVANG
\nVYAS, ADDL.PUBLIC PROSECUTOR for Opponent(s) :
\n2,
\n=========================================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE RAVI R.TRIPATHI<\/p>\n
and<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE J.C.UPADHYAYA<\/p>\n
Date
\n: 27\/01\/2010 <\/p>\n
ORAL
\nCOMMON JUDGMENT <\/p>\n
(Per
\n\t: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)<\/p>\n
These
\n\tthree Criminal Appeals arise out of a judgment and order rendered by
\n\tlearned Addl.Sessions Judge, 2nd
\n\tFast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1 of
\n\t2003. In Special NDPS Case No.1 of 2003, five accused persons,
\n\tnamely, Ketan @ Kanabhai Somabhai Patel, Habibkhan Usmankhan Pathan,
\n\tAbdul Salim Abdul Munaf Shaikh @ Salimbhai, Nituben Abdul Salim
\n\tAbdul Munaf Shaikh and Smt.Naseebbanu Yusufbhai Pathan came to be
\n\ttried for the offences punishable under Sections 8(c), 20(b)(ii)(c),
\n\t25 read with Section 29 of the Narcotic Drugs and Psychotropic
\n\tSubstances Act, 1985 ( NDPS Act , for short). At the end of the
\n\ttrial, the accused No.1 Ketan @ Kanabhai Somabhai Patel, accused
\n\tNo.2 Habibkhan Usmankhan Pathan, accused No.3 Abdul Salim Abdul
\n\tMunaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul Salim Abdul
\n\tMunaf Shaikh came to be convicted for the offences punishable under
\n\tSections 8(c), 20(b)(ii)(c), 25 read with Section 29 of the NDPS Act
\n\tand each of them was sentenced to undergo R.I of ten years and fine
\n\tof Rs.1 Lac each and in default of payment of fine, S.I for one
\n\tyear. Moreover, the accused No.3 Abdul Salim Abdul Munaf Shaikh
\n\t@ Salimbhai, accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh and
\n\taccused No.5 Smt.Naseebbanu Yusufbhai Pathan came to be convicted
\n\tfor the offences punishable under Sections 8(c), 20(b)(ii)(b), 25
\n\tread with Section 29 of the NDPS Act and each of them was sentenced
\n\tto undergo R.I for seven years and fine of Rs.50000\/- each and in
\n\tdefault of payment of fine, S.I for one year. The sentences of
\n\timprisonment were ordered to run concurrently.\n<\/p>\n
1.1\tOriginal
\n\taccused No.2 Habibkhan Usmankhan Pathan filed Criminal Appeal No.11
\n\tof 2007 challenging the impugned judgment and order rendered by the
\n\ttrial Court. However, during the pendency of said appeal, Habibkhan
\n\tUsmankhan Pathan expired, and, therefore, Criminal Appeal No.11 of
\n\t2007 stood abated.\n<\/p>\n
1.2\tCriminal
\n\tAppeal No.718 of 2007 is preferred by original accused No.3 Abdul
\n\tSalim Abdul Munaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul
\n\tSalim Abdul Munaf Shaikh; Criminal Appeal No.994 of 2007 is
\n\tpreferred by original accused No.1 Ketan @ Kanabhai Somabhai Patel
\n\tand Criminal Appeal No.1440 of 2008 is preferred by original accused
\n\tNo.5 Smt.Naseebbanu Yusufbhai Pathan under Section 374 of the
\n\tCriminal Procedure Code ( Cr.P.C. , for
\n\tshort) challenging their conviction and sentence recorded by the
\n\ttrial Court.\n<\/p>\n
Mr.Sahajanand
\n\tSachidanand Singh, serving as Intelligence Officer, Narcotic Control
\n\tBureau, Ahmedabad ( NCB, Ahmedabad , for short) on or about
\n\tdated 23.5.2002 received a secret information to the effect that the
\n\taccused No.1 Ketan @ Kanabhai Somabhai Patel resident of 101,
\n\tChitrakoot Apartment, Navsari dealing in contraband substance Charas
\n\twas to receive large quantity of Charas at his residence, and
\n\tthereupon, the secret information which Mr.S.S.Singh received at
\n\tabout 10.30 am in the morning on 23.5.2002 came to be reduced into
\n\twriting by him and the copy of the same was forwarded to his
\n\timmediate superior Officer. Pursuant to such information, it was
\n\tdecided to conduct raid at Navsari. On 26.5.2002, during night
\n\thours, Intelligence Officer Mr.S.S.Singh, Intelligence Officers
\n\tMr.Vikram Ratnoo, Mr.Pavansinh Gajesinh Tomar and Mr.Umesh
\n\tJayantkumar Pathak left Ahmedabad for Navsari, and at Navsari they
\n\tstayed in circuit house. On next day, i.e. on dated 27.5.2002,
\n\tduring early morning hours at 7 am, two Panchas, namely, Hormez
\n\tFiroz Avari and Mukesh Shankarrao Gole were called. They were
\n\tapprised about the secret information received by Intelligence
\n\tOfficer Mr.Singh. Preliminary panchnama was drawn in the circuit
\n\thouse. Thereafter all the above referred Intelligence Officers along
\n\twith two Panchas and Police Officers went to the house of the
\n\taccused No.1 Ketan Patel. It is the prosecution case that in the
\n\thouse of accused No.1 Ketan Patel along with him, accused No.3 Abdul
\n\tSalim @ Salimbhai and one absconding accused Mahmad Ramzan Kaliyari
\n\t@ Ramzanbhai were found present. The Officers apprised them with the
\n\tsecret information received in this case and expressed their
\n\tintention about the search and seizure. It is further the
\n\tprosecution case that the accused were also apprised of their right
\n\tof search to be conducted in presence of Gazetted Officer or any
\n\tMagistrate, to which the accused stated that they have no objection
\n\tif the search is conducted by the members of the raiding party.
\n\tDuring the course of their personal search, nothing objectionable
\n\twas found out. However, when his house was searched, from the room
\n\tof the house, four packets containing contraband substance Charas
\n\tcame to be found. It is further the prosecution case that since the
\n\troom was very small, and, therefore, it was decided that the
\n\tweighing, packing and sealing etc. of the muddamal should be done at
\n\tcircuit house. In the house of the accused No.1 Ketan Patel, after
\n\tconcluding the panchnama containing search, seizure and recovery
\n\tpart of the contraband substance, the members of the raiding party
\n\talong with Panchas and the above-referred three accused came to the
\n\tcircuit house, Navsari, where the contraband substance was weighed.
\n\tThe gross weight turned out to be 13 kgs. and 295 gm. However, the
\n\tnet weight turned out to be 12 kgs. and 899 gm. Samples were
\n\tcollected and were packed and sealed. Final part of the panchnama
\n\tregarding drawing, weighing, sealing and packing of the samples and
\n\tthe remaining part of Charas was drawn in the circuit house. It is
\n\tfurther the prosecution case that Intelligence Officer Mr.Singh
\n\trecorded statements of accused No.1 Ketan Patel, accused No.3 Abdul
\n\tSalim @ Salimbhai and the absconding accused Mahmad Ramzan under
\n\tSection 67 of the NDPS Act. During the course of recording of
\n\tstatements, it transpired that out of the 13 kgs. Of Charas, accused
\n\tNo.3 Abdul Salim @ Salimbhai had come to the house of accused No.1
\n\tKetan Patel to collect 4 Kg. of Charas and accused No.2 Habibkhan
\n\tPathan, resident of Baroda was to be sold 9 kgs. of Charas. From the
\n\tstatement of accused No.3 Abdul Salim @ Salimbhai, it was further
\n\trevealed that he himself and his wife accused No.4 Nituben, who were
\n\tresiding at Ahmedabad, were dealing in contraband substance like
\n\tCharas and accused No.3 Abdul Salim @ Salimbhai used to purchase
\n\tCharas from accused No.1 Ketan Patel and the Charas to accused No.1
\n\tKetan Patel was supplied by absconding accused Mahmad Ramzan. Upon
\n\treceipt of such information, through the statements recorded under
\n\tSection 67 of the NDPS Act, a message was conveyed to Intelligence
\n\tOfficer, Ahmedabad Mr.S.J.Lodha and upon receipt of such message,
\n\tMr.S.J.Lodha called two Panchas, namely, Harshad Jadavji and Hitesh
\n\tDoliwad and at about 1.30 pm on 27.5.2002, Mr.S.J.Lodha together
\n\twith other Officers of NCB and the above named two Panchas left
\n\ttheir NCB office and went to the house No.B\/31\/Kubernagar, Ahmedabad
\n\tand the accused No.4 Nituben along with one aged lady and one boy
\n\tcame to be found present in the house. She was informed about the
\n\tsecret information and she was also informed that the search was
\n\trequired to be conducted. She was apprised of her right to have the
\n\tsearch conducted in presence of Gazetted Officer or any Magistrate,
\n\tto which she stated that she had no objection if the search was
\n\tconducted by the Officer of the NCB. Though from her personal
\n\tsearch, nothing objectionable was found, but, from the house Charas
\n\tcame to be found, its gross weight was found to be 550 gm. and the
\n\tnet weight found to be 523 gm. Samples were collected from the
\n\tCharas and same were duly packed and sealed. Panchnama to that
\n\teffect was drawn which was signed by Panchas and the Intelligence
\n\tOfficer Mr.Lodha.\n<\/p>\n
2.1\tSamples
\n\tcollected from Navsari and from Ahmedabad were sent to FSL as well
\n\tas CRCL, Delhi. The reports of FSL and CRCL, Delhi revealed that the
\n\tsamples contained contraband substance Charas.\n<\/p>\n
2.2\tIntelligence
\n\tOfficer Mr.Ratnoo lodged criminal complaint against the appellants
\n\therein as well as against the co-accused on dated 28.11.2002 in the
\n\tCourt of learned CJM, Navsari. Since the offence was exclusively
\n\ttriable by the Special Court (Court of Sessions), the learned CJM,
\n\tNavsari committed the case to the Special Court, Navsari, which was
\n\tregistered as Special NDPS Case No.1 of 2003.\n<\/p>\n
The
\n\tlearned trial Judge framed charge against all the accused including
\n\tthe appellants   original accused Nos.1, 3, 4 and 5 to which they
\n\tdid not plead guilty and claimed to be tried. Thereupon, the
\n\tprosecution adduced its oral and documentary evidence. The
\n\tprosecution examined seven witnesses and produced relevant
\n\tdocumentary evidence. After the prosecution concluded its oral
\n\tevidence, the learned trial Judge recorded further statements of the
\n\taccused persons, including appellants accused under Section 313 of
\n\tthe Cr.P.C. and the appellants accused in their further statements
\n\tdenied generally all the incriminating circumstances put to them by
\n\tthe trial Court and stated that they were falsely implicated in this
\n\tcase. They have expressed their desire to examine the defence
\n\twitnesses. Thereupon the defence witnesses, namely, D.M.Valvi and
\n\tRameshbhai Buddhabhai were examined. However, before the defence
\n\twitnesses were examined, the appellant accused preferred an
\n\tapplication, Exh.255, requesting the trial Court to examine the FSL
\n\twitnesses as Court witnesses. Said application was allowed and FSL
\n\twitnesses Rajeshkumar Mehta and Jan Mahmad Fakirbhai Mansuri were
\n\texamined.\n<\/p>\n
3.1\tAfter
\n\tconsidering the evidence on record and the submissions made on
\n\tbehalf of both the sides, the learned trial Judge came to the
\n\tconclusion that the offence committed in Ahmedabad well as at
\n\tNavsari were part and parcel of the same transaction and the outcome
\n\tof the same conspiracy hatched by the accused. The trial Court
\n\tfurther came to the conclusion that the prosecution successfully
\n\tproved its case beyond any reasonable doubt on the basis of the
\n\trecovery of large quantity of contraband substance as well as on the
\n\tbasis of the statements of the accused recorded under Section 67 of
\n\tthe NDPS Act. The trial Court ultimately, recorded the conviction of
\n\tthe appellants accused and awarded the sentence as hereinabove
\n\treferred to in this judgment, which has given rise to the
\n\tabove-referred three criminal appeals.\n<\/p>\n
We
\n\thave heard the submissions made by learned advocate Mr.R.M.Agrawal
\n\tand learned advocate Mr.D.J.Bhatt for the appellants original
\n\taccused Nos.1,3,4 and 5 and we have heard the submissions of learned
\n\tadvocate Mr.K.T.Dave for the respondent NCB and learned A.P.P.
\n\tMr.Devang Vyas for respondent State of Gujarat.\n<\/p>\n
On
\n\tbehalf of the appellants accused, it is submitted that the clubbing
\n\tof two different offences, namely, the alleged recovery of Charas in
\n\tNavsari and alleged recovery of Charas in Ahmedabad and to try all
\n\tthese different offences together, under one trial at Navsari, has
\n\tcaused prejudice in the defence of the accused. As a mater of fact,
\n\tboth are different and distinct offences and should have been tried
\n\tseparately.\n<\/p>\n
5.1\tIt
\n\tis further submitted that the original accused Nos.1, 2, 3 and 4
\n\tcame to be convicted for the offence of recovery of Charas at
\n\tNavsari and original accused Nos.3, 4 and 5 also came to be
\n\tconvicted for the offence relating to recovery of Charas at
\n\tAhmedabad. It is, therefore, submitted that if the trial Court
\n\tintended to consider all the offences arising out of the same
\n\ttransaction and in furtherance of the common conspiracy, then the
\n\tconviction of original accused Nos.3 and 4 recorded twice i.e. for
\n\tthe offence which took place at Navsari and for the offence which
\n\ttook place at Ahmedabad is bad in law. It is, therefore, submitted
\n\tthat for the same offence, the original accused Nos.3 and 4 are
\n\tconvicted twice.\n<\/p>\n
5.2\tIt
\n\tis submitted on behalf of the appellants accused that as per the
\n\tevidence of the prosecution, at the time when the raid was effected
\n\tat the house of the accused No.1, only the accused No.3 and
\n\tabsconding accused Mahmad Ramzan along with accused No.1 were
\n\tpresent. Admittedly, the prosecution did not adduce any evidence to
\n\tshow that the house wherein the raid was carried out, at Navsari,
\n\twas either owned by the accused No.1 Ketan Patel or that it was in
\n\this exclusive possession. Moreover, admittedly, the house was not
\n\teither owned or possessed by appellant accused No.3 Abdul Salim @
\n\tSalimbhai. Therefore, it is submitted that the prosecution failed to
\n\tprove that the appellants accused Nos.1 and 3 were in conscious
\n\tpossession of the Charas. That admittedly, at Navsari, accused Nos.4
\n\tand 5 were not present, yet, for Navsari offence, accused No.4 is
\n\theld responsible.\n<\/p>\n
5.3\tIt
\n\tis further submitted that considering the letters signed by
\n\tIntelligence Officer Mr.Vikram Ratnoo addressed to FSL, Exhs.172 and
\n\t174, there is a difference of weight about the contraband substance
\n\tallegedly recovered at Ahmedabad. It is further submitted that so
\n\tfar as the recovery of contraband at Navsari is concerned, Panch
\n\tHormez in his evidence submits that the total weight of the
\n\tcontraband Charas was about 12 kgs. whereas as per the prosecution
\n\tcase, it is 13 kgs. and 295 gm. It is therefore, submitted that the
\n\tdiscrepancy about the contraband substance is fatal to the case of
\n\tthe prosecution.\n<\/p>\n
5.4\tIt
\n\tis further submitted that as per the CRCL report, the purity of THC
\n\tin the Charas allegedly recovered from Ahmedabad is 4.1% and it is
\n\t3.7% of purity of the Charas recovered from Navsari. In this
\n\tconnection, CRCL reports Exhs.184 and 185 were pressed into service.
\n\tAccordingly, it is submitted that if the total weight of the
\n\tcontraband substance is considered, in light of the percentage of
\n\tpurity, it comes to the limit of small quantity. It is, therefore,
\n\tsubmitted that alternatively, if the prosecution case is believed to
\n\tbe true, and if it is held that the prosecution successfully
\n\testablishes the involvement of the accused in this offence, then the
\n\toffence which can be said to have been committed is pertaining to
\n\tthe small quantity, and as per Section 20(b)(ii)(a) of the NDPS Act,
\n\tthe maximum sentence prescribed is six months imprisonment or with
\n\tfine which may extend to Rs.10000\/-. Therefore, it is submitted that
\n\tin the instant case, the appellants have undergone more sentence
\n\tthan what is prescribed for small quantity and accordingly, the
\n\tappeals may be allowed.\n<\/p>\n
5.5\tIt
\n\tis further submitted that considering the alleged recovery of
\n\tcontraband substance Charas from Navsari, as per the prosecution
\n\tcase, the weighing, packing and sealing of the samples etc. were
\n\tundertaken at circuit house, though the contraband Charas was
\n\tallegedly recovered from the house of the accused No.1 Ketan Patel.
\n\tDrawing our attention to the evidence of Panch Hormez, it is
\n\tsubmitted that the measurement of the room in circuit house and the
\n\tmeasurement of the room of the house of the accused No.1 Ketan Patel
\n\tis almost identical. Thus, the very act of the NCB Officers in
\n\tcarrying out the weighing, sampling and sealing of the contraband
\n\tCharas at circuit house is doubtful. As per the NCB guidelines, the
\n\tseizure, search, recovery of contraband substance and its weighing,
\n\tsealing and packing should have been made at one place and that
\n\tplace should be the place from where the recovery was made.\n<\/p>\n
5.6\tOn
\n\tbehalf of the appellants – original accused, it was strenuously
\n\talleged that no reliance can be placed upon the so-called statements
\n\tof the appellants allegedly recorded under Section 67 of the NDPS
\n\tAct. It is submitted that though on paper their arrest is shown to
\n\tbe at later point of time, but at the time when the statements were
\n\tallegedly recorded, they were in custody of the NCB Officers. Thus,
\n\tno reliance can be placed upon the statements recorded while the
\n\tappellants were in custody of the NCB Officers. It is further
\n\tsubmitted that the statements allegedly recorded under Section 67 of
\n\tthe NDPS Act are outcome of coercion, threat, undue influence and
\n\tpromise. It is submitted that there is no dispute that appellants,
\n\tbarring appellant original accused No.5 Smt.Nassebbanu Yusufkhan
\n\tPathan, retracted their confessional statements at the time when
\n\ttheir further statements were recorded under Section 313 of the
\n\tCr.P.C. Further, the appellant original accused No.5 Smt.Nassebbanu
\n\thad sent writing from jail alleging that her statement was recorded
\n\tafter adopting coercive tactics by the Officers of the NCB.\n<\/p>\n
5.7\tAbout
\n\tthe statements recorded under Section 67 of the Act, it is submitted
\n\tthat the conviction cannot be recorded solely on the basis of the
\n\tbare statement. The statement is required to be corroborated by
\n\tother evidence on record. It is further submitted that in the
\n\tinstant case, so far as appellant accused No.1 Ketan Patel is
\n\tconcerned, nothing is recovered by the NCB Officers, which would
\n\tsuggest that the house from where the contraband Charas came to be
\n\trecovered was either owned by him or that he was either tenant in
\n\tthe premises or that it was in his exclusive possession. So far as
\n\tthe appellant accused No.3 Abdul Salim @ Salimbhai is concerned,
\n\tadmittedly, the house from where the contraband Charas came to be
\n\trecovered, was not either owned or possessed by him. Even if the
\n\tprosecution case as it stands is believed, that at the time of
\n\tsearch and seizure, he was found in the company of accused No.1
\n\tKetan Patel in his house, thereby it cannot be said that the
\n\tcontraband Charas allegedly found from the house was within his
\n\tconscious possession. Accused No.3 Abdul Salim @ Salimbhai is also
\n\tconvicted for the offence of possession of contraband substance
\n\tCharas, which was recovered from Ahmedabad. Admittedly at the time
\n\twhen the raid was conducted at Ahmedabad, he was already under
\n\tarrest in connection with Navsari offence and was in custody of the
\n\tNCB Officers. So far as the appellant accused No.4 Nituben wife of
\n\tAbdul Salim @ Salimbhai is concerned, admittedly at the time when
\n\tthe NCB Officers raided the house of the accused No.1 Ketan Patel at
\n\tNavsari, she was not present in the house. She was in her house at
\n\tAhmedabad. There is no nexus whatsoever between the contraband
\n\tsubstance Charas allegedly recovered at Navsari and allegedly
\n\trecovered at Ahmedabad. Their quality etc. are totally different.
\n\tAdmittedly, the NCB Officers did not collect any material to show
\n\tthat the house from which the contraband substance Charas was
\n\trecovered at Ahmedabad was either owned or belonged to accused No.4
\n\tNituben. So far as the appellant accused No.5 Smt.Naseebbanu is
\n\tconcerned, admittedly, she was not present at Navsari, when the
\n\thouse of accused No.1 Ketan Patel was raided, she was even not
\n\tpresent in the house of appellant accused No.4 Nituben, when her
\n\thouse was raided. Nothing was recovered from the house of appellant
\n\taccused No.5 Smt.Naseebbanu. That, thus, the bare statements without
\n\tany support of corroborative evidence cannot be considered as
\n\tsubstantive piece of evidence to base the conviction.\n<\/p>\n
5.8\tAbout
\n\tthe appellant accused No.4 Nituben, it is further submitted on
\n\tbehalf of the appellants that as emerged from the seizure panchnama,
\n\tat the time when the raid was carried out in her house at Ahmedabad,
\n\tover and above herself, one lady Chayaben and one male member were
\n\tpresent. Despite this, prosecution booked only the respondent
\n\taccused No.4 Nituben in connection with this offence.\n<\/p>\n
5.9\tAbout
\n\tthe Navsari raid, on behalf of the appellants, it is submitted that
\n\tas per the prosecution case, the Charas allegedly recovered was
\n\tweighing about 12 kgs. The appellant accused No.3 Abdul Salim @
\n\tSalimbhai had come to the house of the appellant accused No.1 Ketan
\n\tto buy Charas weighing about 4 kgs. as per the prosecution case,
\n\tyet, no money was found from his possession which was sufficient
\n\ttowards the payment of consideration. That, thus, the prosecution
\n\tcase that the accused No.3 Abdul Salim @ Salimbhai had come to the
\n\thouse of accused No.1 Ketan Patel for the purpose of purchasing 4
\n\tkgs. of Charas cannot be accepted. Even as per the prosecution case,
\n\tno delivery of Charas weighing 4 kgs. was made by accused No.1 Ketan
\n\tPatel to accused No.3 Abdul Salim @ Salimbhai at the time when the
\n\traid was conducted.\n<\/p>\n
5.10\tOn
\n\tbehalf of the appellants it is submitted that as per the prosecution
\n\tcase, more number of persons are involved in the alleged conspiracy
\n\tand trafficing of Charas, yet, out of them, only the appellants are
\n\tbooked by the prosecution.\n<\/p>\n
5.11\tIt
\n\tis further submitted that the prosecution is supposed to prove that
\n\tthe contraband substance recovered is Charas. In the instant case,
\n\tthe prosecution failed to prove that the substance recovered is
\n\tCharas as defined under the NDPS Act.\n<\/p>\n
5.12\tIt
\n\tis submitted that the manner of recording the further statements of
\n\tthe appellants under Section 313 of the Cr.P.C. is faulty. Almost
\n\tidentical questions were put to all the appellants accused and
\n\tidentical replies were incorporated in the statements. That, thus,
\n\tthe said examination is not in confirmity with law and the same is
\n\tagainst the purpose of enacting Section 313 of the Cr.P.C.\n<\/p>\n
5.13\tAssailing
\n\tthe impugned judgment and order rendered by the trial Court, on
\n\tbehalf of the appellants, it is submitted that the trial Court erred
\n\tin holding that the prosecution case is proved by taking resort to
\n\tthe presumptions contained under Section 35 and Section 54 of the
\n\tNDPS Act. That the trial Court misread the provisions regarding the
\n\tpresumptions, and there cannot be a presumption of guilt under
\n\tSection 35  and Section 54 of the NDPS Act. Basic facts are required
\n\tto be proved by the prosecution. If the prosecution proves beyond
\n\treasonable doubt that the contraband substance was in the exclusive
\n\tand conscious possession of the appellants, then only the necessity
\n\tto draw the presumption contained under Section 35 and Section 54 of
\n\tthe NDPS Act would arise. In the instant case, the prosecution
\n\tfailed to prove the basic facts and, therefore, trial Court
\n\tcommitted error in arriving at the conclusion that the guilt of the
\n\tappellant accused is very well established on the basis of such
\n\tpresumptions.\n<\/p>\n
5.14\tLearned
\n\tadvocates Mr.Agrawal and learned advocate Mr.Bhatt for the
\n\tappellants relied upon certain judgments delivered by the Hon’ble
\n\tthe Apex Court, which shall be discussed in this judgment at
\n\trelevant place. Ultimately, it is submitted that these appeals may
\n\tbe allowed and the judgment and order rendered by the trial Court be
\n\tset-aside  and the appellants accused be acquitted of all the
\n\tcharges levelled against them.\n<\/p>\n
Learned
\n\tadvocate Mr.Dave for the respondent NCB and learned A.P.P., Mr.Vyas,
\n\tfor the respondent State vehemently opposed these appeals. It is
\n\tsubmitted that the trial Court rightly appreciated the evidence on
\n\trecord and rightly came to the conclusion that the prosecution
\n\tsuccessfully proved its case beyond any reasonable doubt. The trial
\n\tCourt rightly conducted the single trial in connection with the
\n\trecovery of Charas effected at Navsari as well as recovery of Charas
\n\teffected at Ahmedabad. Our attention was drawn to Sections 178 and
\n\t223 of the Cr.P.C. as well as Sections 25  and 29 of the NDPS Act
\n\tread with Section 8(c) of the NDPS Act. It is submitted that the
\n\trecovery of contraband substance Charas from the house of appellant
\n\tNo.1 at Navsari and from the house of appellant No.4 from Ahmedabad
\n\tis part and parcel of same transaction and conspiracy. In
\n\tfurtherance of the conspiracy and the same transaction, the offences
\n\tat Navsari and at Ahmedabad were committed. That, therefore, the
\n\ttrial Court rightly undertook the exercise of common trial and
\n\trightly recorded the conviction of the appellants.\n<\/p>\n
6.1\tIt
\n\tis submitted that the prosecution furnished clear and cogent
\n\tevidence in the form of FSL report as well as considering the oral
\n\tevidence of FSL Officers, it is clearly established that the
\n\tcontraband substance recovered from Navsari and from Ahmedabad is
\n\tCharas as defined under Section 2(iii) of the NDPS Act. That
\n\tconsidering the definition of ‘Cannabis(Hemp)’ defined under the
\n\tNDPS Act and considering the overall evidence on record, it clearly
\n\ttranspires that the THC percentage can never be the decisive factor
\n\tto come to the conclusion that the substance is ‘Cannabis(Hemp)’or
\n\tnot as defined under the NDPS Act. No minimum percentage of THC is
\n\tsuggested in the definition, whereas in the case of opium as defined
\n\tunder Section 2(xv) of the NDPS Act, it is clearly provided in the
\n\tdefinition of opium that the substance cannot be termed as opium, if
\n\tit does not include any preparation containing not more than 0.2% of
\n\tmorphine. No such rider is there in the definition of
\n\t‘Cannabis(Hemp)’ defined under Section 2(iii) of the NDPS Act.
\n\tMoreover, it is submitted that the contraband substance Charas is a
\n\tnatural substance and not a manufactured drug. Nothing emerges from
\n\tthe evidence on record that the Charas was blended with any neutral
\n\tsubstance. Therefore, it is submitted that the contention regarding
\n\tthe purity test raised by the appellants, is not required to be
\n\tconsidered. The trial Court, therefore, rightly recorded conviction
\n\tof the appellants accused No.1, 3 and 4 for the possession of Charas
\n\tof commercial quantity and rightly recorded the conviction of
\n\tappellants accused No.3, 4 and 5 for possession of intermediate
\n\tquantity of Charas. The contention, therefore, raised on behalf of
\n\tthe appellants that the appellants should have been convicted
\n\tregarding the small quantity cannot be considered.\n<\/p>\n
6.2\tAbout
\n\tthe statements recorded under Section 67 of the NDPS Act, on behalf
\n\tof the respondents it is submitted that the trial Court rightly
\n\trelied upon those statements. Nothing emerges from the record that
\n\tthe statements were outcome of any coercion, threat or promise
\n\tadministered by any of the NCB Officers to the appellants. The
\n\tappellants accused No.1, 3 and 4 during the course of entire trial
\n\tdid not make any attempt to retract the confessional statements.
\n\tTheir statements were recorded before their arrest. After the
\n\trecording of those statements, ultimately, they were arrested. There
\n\tis no dispute that so far as appellant accused No.5 Smt.Naseebbanu
\n\tis concerned, she had sent a writing through jail stating her
\n\tintention to retract the confession, but, thereafter, nothing was
\n\tdone on her part to support her allegation that her confessional
\n\tstatement was outcome of any coercion. It is submitted that all the
\n\tfour appellants accused were produced before concerned Judicial
\n\tMagistrate First Class within 24 hours after recording of their
\n\tconfessional statements under Section 67 of the NDPS Act and none of
\n\tthem made any complaint of ill-treatment against any of the NCB
\n\tOfficers and none of them stated before the concerned Judicial
\n\tMagistrate First Class that their statements were recorded under
\n\tcoercion. That the statement of appellant accused No.1 Ketan Patel
\n\twas recorded by PW-1 Mr.S.S.Singh, Intelligence Officer, the
\n\tstatement of accused No.3 Abdul Salim @ Salimbhai was recorded by
\n\tthe same Intelligence Officer Mr.Singh, statement of appellant
\n\taccused No.4 Nituben was recorded by Intelligence Officer Mr.Lodha,
\n\texamined as PW-3 and the statement of appellant accused No.5
\n\tSmt.Naseebbanu was recorded by the Intelligence Officer Mr.Lodha.
\n\tThe Officers who recorded the confessional statements have been
\n\texamined as witnesses in this case by the prosecution and
\n\tconsidering their evidence, it is duly established that the
\n\tstatements of the appellants were voluntarily made and that they
\n\twere free from any coercion or undue influence or promise. It is
\n\tfurther submitted that mere fact that at the time when their
\n\tstatements were recorded, they were in custody of NCB Officers,
\n\tcannot be considered that they were under any detention after
\n\tarrest. The appellants were duly summoned by the NCB Officers and
\n\tthereafter, their statements were recorded. Before recording the
\n\tstatements, the appellants were informed that they were not bound to
\n\tmake any statement and that their statements may be used against
\n\tthem and against other persons.\n<\/p>\n
6.3\tIt
\n\tis further submitted that though no corroboration is required to the
\n\tstatements recorded under Section 67 of the NDPS Act, but, in the
\n\tinstant case, statements of the appellants are corroborated by the
\n\tevidence of the recovery of contraband article Charas as well as the
\n\tevidence of NCB Officers and Panchas examined in this case.\n<\/p>\n
6.4\tOn
\n\tbehalf of the respondents, it is submitted that as emerged from the
\n\tevidence on record, entire transaction was on credit basis. The
\n\tappellants were knowing each other and the evidence suggests that
\n\tthe payment was made through Angadia. Therefore, mere fact that at
\n\tthe time of personal search of the appellants, no sufficient money
\n\twas recovered, which would have been sufficient to meet with the
\n\tprice of the Charas, that itself cannot be considered to be a ground
\n\tto disbelieve the entire case of the prosecution considering the
\n\tpeculiar facts and circumstances of this case and the evidence on
\n\trecord.\n<\/p>\n
6.5\tIt
\n\tis submitted that as a matter of fact there is no discrepancy in
\n\tweight of the contraband substance, which would render the entire
\n\tprosecution case a suspicious one. It is further submitted that
\n\tthroughout the trial, the muddamal was kept available before the
\n\ttrial Court and considering the evidence of the material witnesses
\n\texamined by the prosecution, it clearly transpires that the packets
\n\tcontaining the samples etc. were shown to them and they identified
\n\tthe muddamal.\n<\/p>\n
6.6\tAbout
\n\tthe further statements recorded under Section 313 of the Cr.P.C., it
\n\tis submitted that no illegality or any irregularity is committed by
\n\tthe trial Court in recording the further statements of the
\n\tappellants. Nothing is suggested that any incriminating evidence
\n\tused by the trial Court for recording the conviction was missed by
\n\tthe trial Court while recording the further statements of the
\n\tappellants . The incriminating evidence used by the trial Court
\n\twhile recording the conviction was put to the appellants in their
\n\tfurther statements recorded under Section 313 of the Cr.P.C.\n<\/p>\n
6.7\tOn
\n\tbehalf of the respondents it is submitted that this being the first
\n\tappeal wherein question of law and question of fact can be
\n\tconsidered and in that perspective, the statements of the appellants
\n\trecorded u\/s.67 of the NDPS Act need to be appreciated, coupled with
\n\tthe fact that even during the course of hearing of these appeals, no
\n\tground is made out to come to the conclusion that the statements are
\n\toutcome of any coercion, threat or any promise.\n<\/p>\n
6.8\tLearned
\n\tadvocate, Mr.Dave, for the respondent NCB and learned A.P.P.,
\n\tMr.Vyas, for the respondent State of Gujarat, referring to the
\n\tprovision contained under Section 8(c) of the NDPS Act submitted
\n\tthat to produce, manufacture, possess, sale, purchase, transport,
\n\twarehouse, use, consume, import interstate, export interstate,
\n\timport into India, export from India or tranship in narcotic drug or
\n\tpsychotropic substance is expressly prohibited and the contravention
\n\tso far as Charas is concerned, is made punishable under Section 20
\n\tof the NDPS Act. Our attention was drawn to Section 25 of the NDPS
\n\tAct wherein any person who is owner or occupier or having the
\n\tcontrol or use of any house, room etc. knowingly permits it to be
\n\tused for the commission of offence punishable under this Act is made
\n\tpunishable under Section 25 of the Act. Our attention was drawn to
\n\tSection 29 of the Act which pertains to punishment for abetment and
\n\tcriminal conspiracy. In Sub-section 1 of Section 29 of the Act, it
\n\tis clearly provided that ‘whoever abets or is a party to a criminal
\n\tconspiracy to commit an offence punishable under this Chapter,
\n\tshall,  whether such offence be or be not committed in consequence
\n\tof such abetment or in pursuance of such criminal conspiracy,
\n\tand not withstanding anything contained in Section 116 of the Indian
\n\tPenal Code, be punishable with the punishment provided for the
\n\toffence. (emphasis
\n\tsupplied). Therefore, it is submitted that considering
\n\tthe facts and circumstances of the case and evidence on record, the
\n\ttrial Court rightly came to the conclusion that all the appellants
\n\taccused are guilty of the offences punishable under Sections 20, 25
\n\tr\/w. Section 29 of the NDPS Act.\n<\/p>\n
\t6.9\tLearned
\n\tadvocate, Mr.Dave, for the respondent NCB and learned A.P.P.,
\n\tMr.Vyas, for the respondent State relied upon certain judgments
\n\trendered by Hon’ble the Apex Court which shall be discussed in this
\n\tjudgment at relevant time. Ultimately, it is submitted that these
\n\tthree criminal appeals may be dismissed.\n<\/p>\n
We
\n\thave examined the record and proceedings in context with the
\n\tsubmissions made by the rival sides.\n<\/p>\n
At
\n\tthe outset, as emerged from the evidence on record, the Intelligence
\n\tOfficer NCB, Mr.Singh on 23.5.2002 received a secret information
\n\twhile he was in his office at Ahmedabad. Considering the evidence of
\n\tPW-1 Mr.Singh, Exh.41, at about 10.30 a.m. in the morning, he
\n\treceived the information on telephone that in the house of accused
\n\tNo.1 Ketan Patel situated at 101, Chitrakoot Apartment, Kadiawad,
\n\tNavsari, Charas is stored and that said Ketan Patel is dealing in
\n\tCharas and within short period, he is to receive consignment of
\n\tCharas at his residence. Said information was reduced into writing
\n\tand was forwarded to his immediate superior. Exh.45 is the letter
\n\tand the information which Mr.Singh received, which was reduced into
\n\twriting by him was annexed with the letter, Exh.45. On this aspect
\n\tof the matter, on behalf of the appellants, it was submitted that
\n\tthe prosecution should have produced the original writing containing
\n\tthe information. Now, considering the provisions contained under
\n\tSection 42(2) of the NDPS Act, it is clearly provided that the
\n\tconcerned Officer who received the information and which he has
\n\treduced into writing, then he shall within 72 hours send a copy
\n\tthereof to his immediate superior Officer. Under such circumstances,
\n\tin the instant case, we are of the considered opinion that the
\n\tmandatory requirement laid down u\/s.42 of the NDPS Act cannot be
\n\tsaid to have been violated. Moreover, in the case of Hamidbhai
\n\tAzambhai Malik Vs.State of Gujarat
\n\treported in 2009(1) GLR 828,
\n\tHon’ble the Apex Court discussing the provisions contained u\/s.42 of
\n\t the NDPS Act, has observed that  under Section 42(2), such
\n\tempowered officer who takes down any information in writing or
\n\trecords the grounds under provisio to Sec.42(1) should forthwith
\n\tsend a copy thereof to his immediate
\n\tofficial superior. If there is total non-compliance of
\n\tthis provision the same affects the prosecution case. To that
\n\textent, it is mandatory.\n<\/p>\n
8.1\tThus,
\n\tin light of the evidence on record, it cannot be said that in the
\n\tinstant case, there is total non-compliance of the mandatory
\n\trequirement laid down under Section 42 of the Act. As stated above,
\n\tconsidering the evidence of PW-1 Mr.Singh and the document, Exh.45,
\n\tin the case, the mandatory requirements are duly and fully complied
\n\twith.\n<\/p>\n
Further
\n\tconsidering the evidence of Mr.Singh, it transpires that on
\n\t26.5.2002, he himself and other Officers of the NCB left Ahmedabad
\n\tfor Navsari and they reached Navsari at about 10 p.m. on 26.5.2002
\n\tand they stayed in Navsari circuit house. On behalf of the
\n\tappellants, it was submitted that the defence has examined defence
\n\twitness Dattubhai Valvi at Exh.270 and according to his evidence, at
\n\tthe relevant time, Mr.Valvi was serving as Clerk in Navsari circuit
\n\thouse and he has produced the extract of register containing the
\n\tnames of the guests in the circuit house and nothing emerges that
\n\tthe two rooms, namely, room No.7 and room No.8 in the circuit house
\n\twere booked either in the name of Intelligence Officer NCB Mr.Singh
\n\tor in the name of any the Intelligence Officer. We have carefully
\n\tgone through the evidence
\n\tof Mr.Valvi recorded at Exh.270 and
\n\tthe extract of guest register, Exhs.271, 272 and 273. Apparently, it
\n\tis clear that, in the register, name of Mr.Singh or the name of any
\n\tIntelligence Officer NCB, Ahmedabad does not figure out. Mr.Valvi in
\n\this cross-examination, clearly admits that the primary duty to make
\n\tentries in the register is of his manager. However, he is serving as
\n\tclerk and only in the absence of Manager, sometimes, he performs the
\n\tduty to post necessary entries in the register. He further admits
\n\tthat he may not be present at the time when all the entries in the
\n\tregister were posted. Moreover, it has come on record that from
\n\t26.5.2002 till 29.5.2002 room Nos.7 and 8 were booked in the name of
\n\tMr.N.V.Chauhan PSI (ATS) and from 26.5.2002 to 29.5.2002 said rooms
\n\twere occupied by NCB Officer Mr.Singh and other Officers of the
\n\traiding party.\n<\/p>\n
9.1\tFurther
\n\tconsidering the evidence of PW-1 Mr.Singh, on 27.5.2002, at about 6
\n\ta.m. in the morning, two Panchas, namely, Hormez Avari and Mukesh
\n\tShankarrao Gole were called in the circuit house. They were apprised
\n\tabout the secret information, and the raid at the residence of
\n\taccused No.1 Mr.Ketan Patel was arranged. In his evidence, he
\n\tnarrated the entire facts regarding the raid. According to him, he
\n\thimself, along with other Officers of the raiding party
\n\tand Panchas as well as local Police Officer went to 101,
\n\tChitrakoot Apartment, Kadiawad, Navsari after drawing preliminary
\n\tpanchnama in the circuit house. Accused No.1 Ketan Patel opened the
\n\tdoor and in the room of the house, two more persons were found
\n\tseated and they were accused No.3 Abdul Salim @ Salimbhai and
\n\tabsconding accused Mahmad Ramzan. Officers of the raiding party
\n\tintroduced themselves to the trio and apprised them about the
\n\tinformation which was received. The accused Nos.1 and 3 as well as
\n\tthe absconding accused Mahmad Ramzan were apprised that search was
\n\trequired to be conducted and if the search is required to be
\n\tconducted in presence of any Gazetted Officer or Magistrate, then
\n\tthe accused have option, to which they stated that the Officers of
\n\tthe raiding party can carry on the raid. The personal search of the
\n\taccused persons was conducted, but nothing objectionable was found.
\n\tThereafter, the room was searched and four packets were found out.
\n\tUpon field testing, it was found that  each packet contained Charas.
\n\tThough on behalf of the appellants, attempt was made to suggest that
\n\tprovisions contained under Section 50 of the NDPS Act have not been
\n\tduly complied with. However, considering the evidence of Mr.Singh,
\n\tthe mandatory requirements laid down u\/s.50 of the NDPS Act have
\n\tbeen duly and fully complied with. Moreover,
\n\tconsidering the case of Megh Singh Vs.State of Punjab
\n\t(2003)8 SCC 666, Hon’ble Apex
\n\tCourt discussing the mandatory requirements laid down u\/s.50 of the
\n\tNDPS Act has observed that  the applicability of Section 50 of the
\n\tNDPS Act arises only in case of personal search of a person. But,
\n\twhere the accused was found to be in possession of gunny bags, the
\n\tsearch of such bags did not attract Section 50 . In the instant
\n\tcase, the contraband substance Charas was found from one attach?,
\n\twhich was lying in the room. No objectionable substance was found
\n\tfrom the person of any of the three accused persons. However, as
\n\tstated above, despite this, in the instant case, the requirements
\n\tunder Section 50 of the NDPS Act have been duly and fully complied
\n\twith.\n<\/p>\n
\tMoreover,
\n\tconsidering the evidence of PW-1 Mr.Singh, it transpires that during
\n\tthe search conducted in the room, the attach? containing four
\n\tpackets of Charas was found. The next procedure which was required
\n\tto be carried out was to weigh the substance, preparation of samples
\n\tand the packing and sealing of samples and packing and sealing of
\n\tremaining contraband material. Mr.Singh deposed that the room was
\n\tsmall enough to carry out the remaining procedure and, therefore,
\n\twith the consent of the accused, they came back to circuit house,
\n\tNavsari. In the circuit house in room Nos.7 and 8, weighment of
\n\tCharas was made and gross weight of the substance was found to be 13
\n\tkgs. and 295 gm. whereas the net weight was 12 kg. and 899 gm. The
\n\tsamples were collected and were packed, sealed, and affixed the
\n\tslips containing signatures of the Panchas.\n<\/p>\n
10.1\tOn
\n\tbehalf of the appellants, it was vehemently argued that the sealing
\n\tand packing of samples etc. should have been done at the place from
\n\twhere the contraband substance Charas was found. According to them,
\n\tthe substance should have been weighed in the room from where it was
\n\tfound and the remaining procedure about collection of samples,
\n\tpacking and sealing etc. should have been done in 101, Chitrakoot
\n\tApartment, Navsari. It was vehemently submitted that thus the
\n\tstanding instruction of NCB regarding collection of sample etc. have
\n\tbeen violated. Our attention was drawn to the case of Khet
\n\tSingh Vs.State of Union of India reported
\n\tin AIR 2002 SC 1450.\n<\/p>\n
\tIn paragraph 10 of said judgment, Hon’ble the Apex Court has
\n\tobserved that  the instructions issued by the NCB, New Delhi are
\n\tto be followed by the officers of the investigation of the crimes
\n\tcoming within the purview of the NDPS Act, even though these
\n\tinstructions do not have the force of law . It is observed that
\n\t it is true that when a contraband article is seized during
\n\tinvestigation or search, a seizure mahazar
\n\tshould be prepared at the spot in accordance with law.
\n\tThere may, however, be circumstances in which it would not have been
\n\tpossible for the officer to prepare the mahazar at the spot, as it
\n\tmay be a chance recovery and the officer may not have the facility
\n\tto prepare a seizure mahazar at the spot itself. In that event,
\n\twhere the seizure mahazar is prepared at a later stage, the officer
\n\tshould indicate his reasons as to why he had not prepared the
\n\tmahazar at the spot of recovery.  There cannot be any dispute
\n\tregarding the principles established by Hon’ble Apex Court in this
\n\trespect. However, in the instant case, considering the evidence of
\n\tPW-1 Mr.Singh, he has assigned reasons as to why the packing and
\n\tsealing procedure was not conducted in the house of the accused No.1
\n\tKetan Patel and why after conducting the search and seizure in the
\n\thouse of accused No.1 Ketan Patel, it was decided that the
\n\tsubsequent procedure should be conducted in circuit house, Navsari.
\n\tThe reason assigned by Mr.Singh is that considering the size of the
\n\troom, they thought it fit to carry out the subsequent procedure in
\n\tthe circuit house. According to him, in that respect, the accused
\n\talso consented. In this connection, if the panchnama, Exh.52 is
\n\tconsidered, it is clearly  stated that after search and seizure was
\n\tconducted, it was decided to carry out further process regarding
\n\tweighment of the contraband substance, the collection
\n\tof samples, their packing etc. in circuit house, Navsari. Moreover,
\n\tin this connection, if the evidence of Panch Hormez Firoz, PW-2
\n\texamined at Exh.125 is considered, he categorically supports the
\n\tcontents of the panchnama, Exh.52. According to him, from the
\n\tattach? lying in the room, the four packets of Charas were found
\n\tout. He further deposed that since the house of the accused No.1
\n\tKetan Patel was small, and, therefore, Officers of the raiding party
\n\tdecided to carry out the task of sampling, sealing etc. in circuit
\n\thouse, Navsari. He further deposed that for that purpose, accused
\n\tgave their consent. In this regard, if the evidence of Officers of
\n\tthe raiding party, namely, PW-5 Mr.Vikram Ratnoo, examined at
\n\tExh.158 and Mr.U.J.Pathak PW-7, examined at Exh.218 is considered,
\n\tthey also categorically corroborated the evidence of PW-1 Mr.Singh
\n\tin all material particulars. Moreover, we will discuss about the
\n\tstatements of the accused recorded under Section 67 of the NDPS Act
\n\tand their evidential value in detail in this judgment later on, but
\n\tat this juncture, considering the statement of accused No.1 Ketan
\n\tPatel, recorded u\/s.67 of the NDPS Act, produced at Exh.59, he
\n\tstated that at the time when his house was searched, his mother had
\n\tgone to meet his mother’s sister and
\n\the requested that his house may be locked and the key may
\n\tbe handed over to his neighbour before leaving the house for circuit
\n\thouse, so that his mother may not know about the illegal activity he
\n\twas doing in the house. Thus, according to his statement, the mother
\n\tof accused No.1 Ketan Patel was to arrive at any time and his mother
\n\twas not knowing about the illegal activity he was doing, and,
\n\ttherefore, he requested that before going to circuit house, his
\n\thouse may be locked and the key may be handed over to his neighbour
\n\tso that his mother may not be shocked. This aspect is also required
\n\tto be considered as to why the Officers after seizure of the
\n\tcontraband substance from his house decided to perform other
\n\tformalities not in the house itself, but in circuit house, Navsari.\n<\/p>\n
Therefore,
\n\tin the instant case, we do not find any reason to come to the
\n\tconclusion that since the contraband substance Charas was not
\n\tweighed at the place from where it was seized and the other
\n\tprocedure, namely, collection of samples, their packing and sealing
\n\tetc. was not carried out at the place of the seizure, that would
\n\trender entire prosecution case a doubtful one. We do not find any
\n\treason to come to the conclusion that any procedural illegality or
\n\tirregularity have been committed by the Officers of the raiding
\n\tparty in this respect.\n<\/p>\n
Considering
\n\tthe evidence on record, it clearly transpires that NCB Officer PW-1
\n\tMr.Singh recorded the statement of accused No.1 Ketan Patel on
\n\t27.5.2002, which is produced at Exh.59, he also recorded the
\n\tstatement of accused No.3 Abdul Salim @ Salmibhai on 27.5.2002,
\n\twhich is produce at Exh.58. Considering the evidence of NCB Officers
\n\texamined in this case and the statements, Exhs.58 and 59, it was
\n\trevealed that accused No.3 Abdul Salim @ Salimbhai had come to the
\n\thouse of accused No.1 Ketan Patel to collect 4 kgs. of Charas. It
\n\twas further revealed that 9 kgs. Of Charas was to be delivered to
\n\taccused No.2 Habibkhan Pathan (now deceased) at Vadodara. So far as
\n\taccused No.3 Abdul Salim @ Salimbhai is concerned, it was further
\n\trevealed that he was residing in Ahmedabad along with his wife
\n\taccused No.4 Nituben and both husband and wife were doing business
\n\tof selling Charas. The activity was conducted in his house at
\n\tAhmedabad. Immediately, on 27.5.2002, said information was passed on
\n\tto Intelligence Officer Mr.Lodha at Ahmedabad. Considering the
\n\tevidence of PW-3 Mr.Lodha, examined at Exh.128, upon receipt of such
\n\tinformation, while he was in NCB Office, Ahmedabad, two Panchas,
\n\tnamely,  Harshad Jadavji and Hitesh Doliwad were called. The Panchas
\n\twere apprised about the information received and that the raid was
\n\trequired to be conducted at B\/31\/Kubernagar, Ahmedabad. On 27.5.2002
\n\tat about 1.30 p.m. Mr.S.J.Lodha, other Officers of the NCB along
\n\twith the Panchas left the NCB office, Ahmedabad after preparing
\n\tpreliminary panchnama, for B\/31\/Kubernagar, Ahmedabad. That reaching
\n\tto the place of the information, the accused No.4 Nituben Salimbhai,
\n\twife of accused No.3 Abdul Salim @ Salimbhai was found in  the
\n\thouse. She was informed about the secret information received in
\n\tthis behalf and she was further informed that the search was
\n\trequired to be conducted and if she desires the search to be
\n\tconducted in presence of Gazetted Officer or Magistrate, then she
\n\thad the option, however, she did not opt for the same and stated
\n\tthat the search could be conducted by the Officers of the NCB. From
\n\tthe personal search, nothing objectionable was found, but there was
\n\ta cupboard in the room and from the cupboard, one parcel was found.
\n\tWhen the parcel was opened, a blackish green substance was found.
\n\tConducting the field testing, it was found to be Charas. Gross
\n\tweight of Charas was 556 gm. and its net weight was 523 gm. Two
\n\tsamples were collected and the same were duly packed and sealed.
\n\tSeizure panchnama, Exh.129 was drawn. The evidence of PW-3
\n\tIntelligence Officer Mr.Lodha, Exh.128 is duly corroborated in all
\n\tmaterial particulars by the evidence of Panch PW-4 Harshad Jadavji,
\n\texamined at Exh.150 and the panchnama, Exh.129.\n<\/p>\n
On
\n\tbehalf of the appellant, it was strenuously submitted that the
\n\tprosecution miserably failed to prove a very important fact that the
\n\tpremises at the Navsari from where four packets of Charas were
\n\tseized and the premises at Ahmedabad from where also Charas was
\n\tseized, were either owned by the accused No.1 Ketan Patel and
\n\taccused No.4 Nituben Salimbhai or that they were in exclusive
\n\tpossession of the respective premises. However, in this respect,
\n\tconsidering the evidence of the NCB Officers and the Panchas, so far
\n\tas Navsari raid is concerned, it has come in evidence that at the
\n\ttime when the raid was conducted in 101, Chitrakoot Apartment,
\n\tKadiawad, Navsari, accused No.1 Ketan Patel was found in the house
\n\tand it was he who had opened the door. Considering the secret
\n\tinformation, Exh.45, it clearly transpires that the information was
\n\tcontaining the name of the accused No.1 Ketan Patel and that he was
\n\tto receive the consignment of Charas at his house 101, Chitrakoot
\n\tApartment, Navsari. Moreover, in this respect, considering the
\n\tstatement, Exh.59 of the accused No.1 Ketan Patel recorded u\/s.67 of
\n\tthe NDPS Act, it is explicitly stated that in the house, accused
\n\tNo.1 Ketan Patel was residing and the same was used for storing the
\n\tcontraband substance and the same was distributed from said house.\n<\/p>\n
13.1\tSo
\n\tfar as Ahmedabad raid is concerned, considering the evidence on
\n\trecord, when the Officers of the raiding party along with Panchas
\n\treached to the place of information i.e. B\/31\/Kubernagar, Ahmedabad,
\n\taccused No.4 Nituben, wife of accused No.3 Abdul Salim @ Salimbhai
\n\twas found in the house. Furthermore, in this respect, considering
\n\tthe statement of accused No.3 Abdul Salim @ Salimbhai, Exh.58
\n\trecorded u\/s.67 of the NDPS Act and the statement of accused No.4
\n\tNituben, Exh.131, recorded u\/s.67 of the NDPS Act, not only they
\n\tadmitted the possession of the house in Ahmedabad, but, they stated
\n\tthat they were doing the business of selling Charas in the house.
\n\tWhen such is the situation, we are of the considered opinion that
\n\tthe prosecution successfully established the nexus between the
\n\taccused No.1 Ketan Patel and the house at Navsari and the nexus
\n\tbetween accused No.3 Abdul Salim @ Salimbhai and accused No.4
\n\tNituben with the house in Ahmedabad. The contention, therefore,
\n\traised on behalf of the appellants that the prosecution failed to
\n\tadduce any evidence to connect the accused persons with the
\n\trespective premises, deserves to be discarded.\n<\/p>\n
However,
\n\ton behalf of the appellants, reliance was placed upon the case of Om
\n\tPrakash @ Baba Vs. State of Rajasthan, 2009 AIAR (Criminal) 818.
\n\tConsidering the facts of the said case, the concerned Police
\n\tOfficers had gone to the house of appellant Om Prakash not on the
\n\tbasis of any prior information regarding any contraband substance
\n\tunder the NDPS Act, but to arrest one accused, namely, Pankaj.
\n\tHowever, while conducting search in the house, huge quantity of
\n\tCharas, opium and Gaanja were recovered. Moreover in said case, a
\n\tprosecution witness PW-3 categorically deposed that the house from
\n\twhere the contraband substances were recovered belonged to another
\n\tperson and not the appellant Om Prakash. There was no evidence of
\n\tany exclusive ownership of Om Prakash of the house. Ultimately,
\n\tHon’ble the Apex Court came to the conclusion that the ownership and
\n\tpossession of the house and the place of recovery was uncertain.
\n\tNow, the facts of our case are totally different. As stated above in
\n\tour case, all the witnesses examined by the prosecution including
\n\tthe Panchas categorically connected the respective accused with the
\n\trespective premises raided by them. Furthermore, in the instant
\n\tcase, the raid was carried out pursuant to the clear and cogent
\n\tprior information connecting the respective accused with the
\n\trespective premises. Under such circumstances, as stated above, in
\n\tthe instant case, the contention raised by the appellants that the
\n\tprosecution failed to establish their connection with the respective
\n\tpremises deserves to be discarded.\n<\/p>\n
As
\n\tstated above from the evidence on record, the purpose as to why at
\n\tthe time of the raid accused No.3 Abdul Salim @ Salimbhai was found
\n\tin the house of accused No.1 Ketan Patel is duly established. On
\n\tbehalf of the appellants a contention was raised that the accused
\n\tNos.1 and 3 cannot be said to be in conscious possession of Charas
\n\tlying in the house at Navsari. To deal with this submission, as
\n\tstated above, at the time when the raid in Chitrakoot Apartment was
\n\tconducted, both the accused along with absconding accused Mahmed
\n\tRamzan were found in the house. The evidence on record as well as
\n\tthe statements recorded u\/s.67 of the Act of the accused reveals
\n\tthat the accused Nos.1 and 3 were not strangers to each other. In
\n\tpast they had a transaction of Charas. However, on behalf of the
\n\tappellants, reliance was placed upon the case of A.K. Mehabood
\n\tVs.Intelligence Officer, Narcotics Control Bureau (2001)10
\n\tSCC 203. Considering the facts of the said case, it reveals that
\n\tappellant Mehaboob was present in the house of co-accused Naushad
\n\tand at that time a raid was conducted in the house of co-accused
\n\tNaushad and 251 gm. of brown-sugar had been recovered, statements of
\n\tthe accused u\/s.67 of the NDPS Act were recorded. So far as the
\n\tappellant A.K.Mehaboob was concerned, his statement u\/s.67 of the
\n\tNDPS Act, did not contain any incriminating material, which would
\n\tinvolve him either in a conspiracy or in an abetment for the
\n\toffences committed by the other accused. Moreover, from his
\n\tstatement it was revealed that he was only informed by co-accused
\n\tNaushad that brown-sugar could be supplied to him and, therefore, he
\n\twent to the house of Naushad in response to that. Nothing revealed
\n\tthat appellant Mehabood parted with any money as consideration of
\n\tthe contraband article. Hon’ble the Apex Court further noted that
\n\tprice of 1 kg. of brown-sugar  ranges from Rs.75,000 to Rs.95,000\/-.
\n\tIt was observed that if the appellant Mehaboob had gone to purchase
\n\tit, it cannot be believed that he would have gone without any cash
\n\twith him. The facts of our case are totally different. The
\n\tstatements of the accused recorded u\/s.67 of the NDPS Act, in the
\n\tinstant case, contained clear inculpatory  materials. Moreover, in
\n\tthe instant case, there is nothing that on 27.5.2002, when the
\n\taccused No.3 Abdul Salim @ Salimbhai was found in the house of the
\n\taccused No.1 Ketan Patel, that was the first meeting with Ketan. The
\n\tmaterials available on record reveals that in past there was
\n\ttransaction of Charas between them. It is true that during the
\n\tpersonal search of accused No.3 Abdul Salim @ Salimbhai, small cash
\n\tamount was found. Considering the statement recorded u\/s.67 of the
\n\tNDPS Act, it clearly reveals that the transaction was on credit. It
\n\tfurther reveals that, in past, amount of consideration was sent by
\n\tAngadia (carrier). Thus, the facts of the instant case are
\n\tcompletely different than the facts and circumstances and the
\n\tevidence on record in A.K. Mehaboob’s case.\n<\/p>\n
On
\n\tbehalf of the appellants it was urged that in the instant case, the
\n\tprosecution evidence reveals discrepancy in weight of the contraband
\n\tsubstance. In this respect, so far as Charas recovered from Navsari
\n\tis concerned, as per the oral evidence of NCB Officers and the
\n\tseizure panchnama, Exh.52, the gross weight of Charas was 13 kgs.
\n\t295 gm. and the net weight was 12 kgs. and 899 gm. However, Panch
\n\tPW-2, Hormez Firoj in his deposition, Exh.125 says that four packets
\n\twere seized, one packet was weighing approximately 980 gm., 2nd
\n\tpacket was containing approximately 20 gm. to 25 gm. less than 4
\n\tkgs. and the 3rd packet contained approximately 3 kgs. of
\n\tCharas. Then he says that the total weight comes to approximately 13
\n\tkgs.  He further deposed that the four packets contained in all 135
\n\tround shaped lumps (laddu). On behalf of the appellants it was
\n\tsubmitted that considering the evidence of Panch Hormez regarding
\n\tthe weight of the contents of each packet, the total comes to about
\n\t12 kgs. Now, in this respect, as stated above, Panch PW-2 Hormez in
\n\this evidence deposed about approximate weight of the contents of
\n\teach packet. As admitted by him, he signed the  panchnama, Exh.52
\n\twherein it is stated that the gross weight of contents of these four
\n\tpackets was 13 kgs. and 295 gm. and the net weight was 12 kgs. and
\n\t899 gm. When such is the situation, we do not find any material
\n\tdiscrepancy about the weight in the oral evidence of Panch PW-2
\n\tHormez and in the Panchnama, Exh.52.\n<\/p>\n
16.1\tAbout
\n\tAhmedabad recovery, our attention was drawn to two communications,
\n\tExhs.172 and 174  addressed to one witness Moin Bapu @ Gaande Bawa
\n\tof Ahmedabad dated 4.7.2002 and 26.7.2002 respectively by
\n\tIntelligence Officer PW-5 Vikram Ratnoo, examined at Exh.158. In his
\n\tcommunication Exh.172 dated 4.7.2002, it is stated that the
\n\tcommunication was pertaining to inquiry about the seizure of 536 gm.
\n\tof Charas from accused No.4 Nituben whereas in the communication
\n\tdated 26.7.2002, Exh.174, it is stated that it pertains to inquiry
\n\tabout seizure of 556 gm. of Charas from accused No.4 Nituben. Now,
\n\tin this case, considering the seizure panchnama, Exh.129, drawn at
\n\tAhmedabad in the residence of accused No.4 Nituben and the evidence
\n\tof Investigating Officer PW-3 Mr.Lodha examined at Exh.128, it
\n\tclearly transpires that upon weighment of Charas recovered from the
\n\thouse of accused No.4 Nituben, it was transpired that its gross
\n\tweight was 556 gm. and net weight was 523 gm. In the communications
\n\tExh.172 and 174, weight stated comes to 536 gm. and 556 gm.
\n\trespectively. Both the communications are effected by Intelligence
\n\tOfficer Mr.Vikram Ratnoo. Vikram Ratnoo is PW-5, examined at Exh.158
\n\tand we have carefully considered his evidence and during his entire
\n\tcross-examined, nothing emerges that his attention was drawn to the
\n\tcommunications, Exhs.172 and 174 about the discrepancy in weight.
\n\tMoreover, the discrepancy in weight is well explained, if the
\n\tevidence of Intelligence Officer Mr.Lodha along with Exh.129
\n\tpanchnama is considered.\n<\/p>\n
16.2\tOn
\n\tbehalf of the appellants reliance was placed upon the case of Rajesh
\n\tJagdamba Avasthi Vs. State of Goa (2005)9 SCC 773. As per the
\n\tfacts of said case, from the shoe of right foot of the accused 100
\n\tgm. of Charas was found which was sealed in envelope ‘A’, but when
\n\tthe envelope ‘A’ was opened by FSL, the weight of the substance was
\n\tfound out to be 98.16 gm. From the shoe of left foot of the accused,
\n\t115 gm. of Charas was found and the same was sealed in envelope ‘B’,
\n\tbut when the envelope ‘B’ was opened, it was found that the weight
\n\tof the Charas was 82.54 gm. The High Court recorded conviction of
\n\tthe accused regarding the possession of Charas of 100 gm., which was
\n\tsealed in envelope ‘A’ discarding the discrepancy in weight in
\n\trespect of the contents of the envelope ‘B’ is not considered.
\n\tHon’ble Apex Court recording acquittal of the accused held that the
\n\tdiscrepancy in weight was not minor discrepancy. No explanation was
\n\tforthcoming from the evidence on record, regarding the discrepancy.
\n\tNow, the facts of our case are totally different. As a matter of
\n\tfact in the instant case, there may not be any material discrepancy
\n\tabout the weight of the contraband substance. So far as Navsari raid
\n\tis concerned, in the oral evidence of Panch Hormez, he only stated
\n\tabout the approximate weight of the Charas recovered from the house
\n\tof accused No.1 Ketan from Navsari. So far as Ahmedabad raid is
\n\tconcerned, considering the communications Exhs.172 and 174 addressed
\n\tonly to a witness by Intelligence Officer Vikram Ratnoo, the
\n\tdiscrepancy, if any, in the weight of the contraband substance
\n\tCharas recovered from the house of accused No.4 Nituben from
\n\tAhmedabad pales into insignificance because the available evidence
\n\ton record reveals exact gross weight and exact net weight of the
\n\tCharas recovered from the house of accused No.4 Nituben.\n<\/p>\n
On
\n\tbehalf of the appellants relying upon the case of E.Micheal
\n\tRaj Vs.Intelligence Officer, Narcotics Control Bureau
\n\treported in (2008)5 SCC
\n\t161 it was submitted
\n\tthat in the instant case, as per the report of CRCL Delhi, Exh.184
\n\tregarding the purity of Charas allegedly recovered from the house of
\n\taccused No.4 Nituben, the THC percentage is assessed as 4.1% whereas
\n\tin the report, Exh.185 of the CRCL Delhi, the Charas allegedly
\n\trecovered from the house of accused No.1 Ketan contained THC
\n\tpercentage of 3.7%. Therefore, it is submitted that if at all the
\n\tcase of the prosecution is accepted, as it stands and the
\n\tinvolvement of the accused is established, yet, considering the
\n\ttotal weight of the contraband substance and the percentage of THC
\n\tarrived at by CRCL, Delhi, together with table contained in the
\n\tnotification attached to the Act and especially considering the
\n\tSr.No.23 pertaining to Charas, the small quantity is upto 100 gm.
\n\tand commercial quantity is above 1 kg. of Charas, and, therefore, it
\n\tis submitted that in the instant case, the trial Court should have
\n\trecorded the conviction keeping in mind the small quantity. It is,
\n\ttherefore, submitted that about the small quantity, the sentence
\n\tprescribed under Section 20 of the Act is imprisonment for six
\n\tmonths or fine which may extend to Rs.10000\/-\n<\/p>\n
\tor with both. It is, therefore, submitted that the appellants have
\n\talready undergone more sentence than what was prescribed for
\n\tpossession of small quantity. Now, in this respect, first of all
\n\tconsidering the definition of  Cannabis (Hemp)  contained under
\n\tSection 2(iii) of the NDPS Act about Charas, it is defined as  the
\n\tseparated resin, in whatever form, whether crude or purified,
\n\tobtained from the cannabis plant and also includes concentrated
\n\tpreparation and resin known as hashish oil or liquid hashish .
\n\tThus, in the instant case, contraband substance Charas was in its
\n\tnatural form and was not a manufactured drug as defined in Section
\n\t2(xi) of Section 2 of the NDPS Act. In Charas, the separated resin
\n\tmay be in any form, whether crude or purified. Furthermore, we have
\n\tconsidered the definition of  opium  defined under Section 2(xv)
\n\tof the Act and it is defined that the  ‘opium’ means  (a) the
\n\tcoagulated juice of the opium poppy; and (b) any mixture, with or
\n\twithout any neutral material, of the coagulated juice of the opium
\n\tpoppy, but, does not include any preparation containing not more
\n\tthan  0.2 percent of
\n\tmorphine.  Now, so far
\n\tas Charas is concerned, no fixed percentage of THC is prescribed in
\n\tthe definition of Charas like the percentage of morphine prescribed
\n\tfor opium. In this respect, considering the  evidence
\n\tof FSL witness Mr. Jan  Mahmad
\n\tFakirbhai Mansuri, examined at Exh.263 in this case,
\n\tin his cross-examination, he has rightly opined that it is not
\n\tnecessary for ascertaining whether a substance is Charas or not that
\n\tit should contain a specific percentage of THC. Moreover, in the
\n\tinstant case, neither from the report of FSL nor from the report of
\n\tCRCL, Delhi, it is revealed that in the Charas recovered from
\n\tNavsari and from Ahmedabad, any neutral substance was mixed. Under
\n\tsuch circumstances, the contention raised on behalf of the
\n\tappellants that considering the percentage of THC, the quantity of
\n\tCharas falls within small quantity and, therefore, the appellants
\n\tshould have been convicted accordingly for possession of the
\n\tcontraband substance of small quantity is devoid of any merits.
\n\tThus, the facts and circumstances and evidence on record in our case
\n\tare totally different from the facts and circumstances of the case
\n\tof E.Michael Raj relied upon by the appellants.\n<\/p>\n
The
\n\tevidence further reveals that soon after the seizure of the
\n\tcontraband substance Charas, the samples and the remaining quantity
\n\tof Charas duly packed and sealed were deposited in NCB godown. It is
\n\tfurther revealed that the samples were received by FSL and CRCL in
\n\tpacked and sealed condition. During the course of evidence of
\n\twitnesses, muddamal was shown to them and the same was duly
\n\tidentified. When such is the situation, the contention raised by the
\n\tappellants that there was any possibility of tampering with the
\n\tmuddamal deserves to be discarded.\n<\/p>\n
\tThe submission
\n\tmade on behalf of the appellants that since some of the NCB Officers
\n\tof the raiding party like Mr.Vikas Ratnoo, did not claim travelling
\n\tallowance and dearness allowance, and, therefore, the fact that for
\n\tthe purpose of carrying out raid at Navsari, they travelled from
\n\tAhmedabad to Navsari and that they stayed in Navsari for couple of
\n\tdays should not be believed. We do not consider such submission to
\n\tbe a material one, which would render the entire prosecution case a
\n\tdoubtful one. Mere fact that some of the Officers did not claim any
\n\tTA and DA can be said to be insignificant. As revealed from the
\n\tevidence on record, the Officers travelled in official vehicles and
\n\tnot by train or bus. Therefore, there was no question of claiming
\n\tany TA. Claim for DA may not be compulsory. The evidence on record
\n\tclearly suggests that the Officers of the NCB came to Navsari and
\n\tcarried out raid at the house of the accused No.1 Ketan Patel.\n<\/p>\n
About
\n\tthe Ahmedabad raid, it was submitted on behalf of the appellants
\n\tthat over and above accused No.4 Nituben in the house, one lady and
\n\tone male member were found, yet,  only Nituben is arraigned as
\n\tco-accused. We do not find any substance in the submission for the
\n\tsimple reason that it has come on record that both the accused No.3
\n\tAbdul Salim @ Salimbhai and accused No.4 Nituben were dealing in
\n\tCharas and they were collecting Charas and were selling Charas. Mere
\n\tpresence of one another lady and a male member of the family in the
\n\thouse cannot be said to be a material circumstance to connect them
\n\twith the crime. Over and above the recovery of Charas from the house
\n\tof accused No.4 Nituben, there is her statement recorded by
\n\tcompetent Officer under Section 67 of the NDPS Act.\n<\/p>\n
The
\n\targument made on behalf of the appellants regarding the statements
\n\tof the accused recorded u\/s.67 of the NDPS Act requires to be dealt
\n\twith at some length. It is submitted that though on record, the
\n\tprosecution tried to submit that the statements were recorded before
\n\tarrest, but as a matter of fact, the accused were already under
\n\tcustody of NCB when their statements were recorded. It is further
\n\tstated that the statements were recorded under the coercion and the
\n\tstatements were not the voluntary statements of the accused. It is
\n\tfurther stated that though the appellant accused No.1, 3 and 4
\n\tduring course of recording of evidence, did not retract their
\n\tconfessional statements, but in their further statements recorded
\n\tunder Section 313 of the Cr.P.C., they clearly retracted their
\n\tstatements. So far as accused No.5 Naseebbanu Pathan is concerned,
\n\tit is submitted that even during the course of trial, she had
\n\tforwarded the writing through jail, stating that her statement was
\n\trecorded by using coercive tactics. Moreover, it is submitted that
\n\tthe bare statement can never be a base for conviction. If the
\n\tstatement is found to be free from any coercion, undue influence or
\n\tpromise and is found to be voluntary, then also, the same is
\n\trequired to be corroborated by other evidence on record.\n<\/p>\n
21.1\tNow,
\n\tas revealed from the evidence on record, so far as appellant accused
\n\tNo.1 Ketan Patel is concerned, on 27.5.2002, his statement, Exh.59
\n\twas recorded by Intelligence Officer PW-1 Mr.S.S.Singh. The
\n\tstatement was recorded in Navsari circuit house. As revealed from
\n\this evidence, the statement, Exh.59 is in the handwriting of the
\n\taccused Ketan Patel himself. So far as appellant accused No.3 Abdul
\n\tSalim @ Salimbhai is concerned, his statement was recorded on
\n\t27.5.2002, Exh.58 by Intelligence Officer PW-1 Mr.S.S.Singh at
\n\tNavsari circuit house. The statement of appellant accused No.4
\n\tNituben Salimbhai was recorded on 27.5.2002 at NCB office, Ahmedabad
\n\tby Intelligence Officer PW-3 Mr.S.J.Lodha, which is produced at
\n\tExh.131 and Mr.S.J.Lodha also recorded further statement of Nituben
\n\ton 28.5.2002 at NCB office, Ahmedabad, which is produced at Exh.137.
\n\tPW-3 Mr.S.J.Lodha also recorded statement of appellant   accused
\n\tNo.5 Nasibbanu on 28.5.2002 at Ahmedabad NCB office which is
\n\tproduced at Exh.135. Except the statement, Exh.59 of accused No.1
\n\tKetan Patel, the rest of the above-referred statement are in the
\n\thandwriting of the concerned recording Officers. The concerned
\n\tOfficers have also recorded the statements of accused No.2 Habibkhan
\n\t(now deceased) as well as of absconding accused Mahmed Ramzan as
\n\twell as two witnesses of Angadia firm. At present we are concerned
\n\twith the statements of the appellant accused persons. We have taken
\n\tinto consideration even the original statements of the appellant
\n\taccused produced at Exhs.58, 59, 131, 135 and 137 from the record
\n\tand proceedings of the trial Court. In connection with those
\n\tstatements, the concerned Intelligence Officers who recorded those
\n\tstatements were examined as witnesses in this case. We have
\n\tcarefully gone through the evidence of the Intelligence Officers,
\n\tnamely, PW-1 Mr.S.S.Singh and PW-3 Mr.S.J.Lodha. From their
\n\tdepositions, it clearly reveals that before recording those
\n\tstatements, the concerned accused was apprised of the facts that he
\n\twas not bound to make any statement and if he makes any statement,
\n\tsame can be used against him and against other persons. If we read
\n\tthose statements, opening paragraph clearly reveals that the maker
\n\tof the statement was apprised about the same. Furthermore,
\n\tconsidering those statements of the appellants accused, it further
\n\ttranspires that the statements contained minute details regarding
\n\ttheir family and their academic background which can be said to be
\n\tonly within the exclusive knowledge of the maker only. This rules
\n\tout the possibility of concoction. If at all the Officer of NCB
\n\tintended to concoct a false statement, such statement would not have
\n\tcontained such material which was within the exclusive knowledge of
\n\tthe maker of the statement. All the above-referred statements
\n\tcontaining more than one pages bear signatures of the respective
\n\tappellants accused persons as well as countersigned by the
\n\trespective Officer, who recorded statement.\n<\/p>\n
The
\n\tbare reading of Section 67 of the NDPS Act reveals that an empowered
\n\tOfficer as empowered u\/s.42 of the Act may during the course of an
\n\tinquiry in connection with the contravention of any provisions of
\n\tthis Act, call for information from any person for the purpose of
\n\tsatisfying himself whether there has been any contravention of the
\n\tprovisions of this Act or any rule or order made thereunder. He may
\n\trequire any person to produce or deliver any document relevant to
\n\tthe inquiry. He may also examine any person acquainted with the
\n\tfacts and circumstances of the case.\n<\/p>\n
22.1\tConsidering
\n\tthe case on Kanaiyalal Vs. Union of India (2008)2 SCC (Cr.) 474,
\n\tHon’ble Apex Court dealing with the provisions contained u\/s.67 of
\n\tthe Act held that  the statement contemplated u\/s.67 of the Act,
\n\tis not the same as statement under Section 161 of the Cr.P.C. .
\n\tThe Hon’ble the Apex Court further held that the  consistent view
\n\twhich has been taken with regard to confessions made under
\n\tprovisions of Section 67 of the NDPS Act has been that such
\n\tstatements may be treated as confessions for the purpose of Section
\n\t27 of the Evidence Act, but with the caution that the Court should
\n\tsatisfy itself that such statements had been made voluntarily and at
\n\ta time when the person making such statement had not been made an
\n\taccused in connection with the alleged offence.  In para 41 of the
\n\tjudgment, Hon’ble the Apex Court, considering the similar provisions
\n\tin other statutes held that  at the stage the person concerned is
\n\tnot an accused although he may be said to be in custody. But on the
\n\tbasis of the statements made by him, he could be made an accused
\n\tsubsequently . It is further held that  as long as such
\n\tstatement was made by the accused at the time he was not under
\n\tarrest, the bar under Sections 24 to 27 of the Evidence Act would
\n\tnot operated nor would the provisions of Article 20(3) of the
\n\tConstitution be attracted . Moreover, considering said case, it
\n\tfurther transpires that the confessional statement was retracted by
\n\tthe accused immediately after its recording. Hon’ble Apex Court
\n\tabout the retraction of confessional statement in para 47 of the
\n\tjudgment observed that  though an appilcation was made for
\n\tretracting the confession made by the appellant, neither was any
\n\torder passed on the said application nor was the same proved during
\n\tthe trial, so as to water down the evidential value of said
\n\tstatement . Ultimately, in the said para 47, Hon’ble the Apex
\n\tCourt held that  since a conviction can be maintained solely on
\n\tthe basis of such confession made u\/s.67 of the NDPS Act, we see no
\n\treason to interfere with the conclusion of the High Court convicting
\n\tthe appellant.\n<\/p>\n
22.2\tNow,
\n\tapplying the ratio laid down by the Hon’ble the Apex Court in
\n\tKanaiyalal’s case, it becomes clear that while appreciating the
\n\tevidence in form of statement u\/s.67 of the Act, the prime duty of
\n\tthe Court shall be to ascertain as to whether statement is
\n\tvoluntarily made by the accused or not. In the instant case,
\n\tconsidering the overall evidence on record, nothing emerges that the
\n\tstatements are outcome of any coercive tactics adopted by the
\n\tconcerned Officer of the NCB. Though it is submitted that so far as
\n\tthe appellant accused No.5 Naseebbanu is concerned, through jail,
\n\tshe forwarded an application to the Court of learned CJM retracting
\n\ther confession. Nothing is pointed out as to ultimately, what was
\n\tthe order passed by the concerned Court in said application.
\n\tMoreover, it transpires from the evidence on record that at the time
\n\twhen the statements of the appellants accused were recorded they
\n\twere not arrested. Though statements of appellant accused Nos.1 and
\n\t3 were recorded at Navsari circuit house and the statements of
\n\tappellants accused Nos.4 and 5 were recorded at NCB Office,
\n\tAhmedabad, but at that time, they were not arrested by the concerned
\n\tNCB Officers. Considering the ratio laid down in Kanaiyalal’s case,
\n\tit is observed by Hon’ble Apex Court that  at that stage, the
\n\tperson concerned is not an accused and that he may be said to be in
\n\tcustody . Mere custody does not mean that said person is duly
\n\tarrested and kept in custody. To put it differently, in the instant
\n\tcase, nothing is revealed that the statements are post arrest
\n\tconfessional statements of the appellants. In the instant case, the
\n\tevidence on record further reveals that after recording of their
\n\tstatements, the accused were produced before concerned Judicial
\n\tMagistrate. Nothing comes out from the evidence on record that at
\n\tthat time any of the accused made any complaint against any of the
\n\tOfficers of the NCB about the ill-treatment meted out to the accused
\n\tor any coercive tactics adopted by the Officers while recording
\n\ttheir statements. After the oral evidence led by the prosecution was
\n\tconcluded, the trial Court recorded further statements of the
\n\taccused and during the course of their further statements recorded
\n\tu\/s.313 of the Cr.P.C., the accused retracted their confessional
\n\tstatements. It is further pertinent to note that in the oral
\n\tevidence of concerned Intelligence Officer who recorded the
\n\tstatements, nothing is revealed that any coercive tactics were
\n\tadopted while recording the statements.  Considering their
\n\tdepositions on this point, no effective cross-examination appears to
\n\thave been made on behalf of the accused and almost similar was the
\n\tsituation if Kanaiyalal’s case is considered. The trial Court in the
\n\timpugned judgment, therefore, rightly came to the conclusion that
\n\tthe appellant accused made voluntary statements under Section 67 of
\n\tthe NDPS Act. We have independently examined such conclusion arrived
\n\tat by the trial Court and we are satisfied that the trial Court
\n\trightly came to such conclusion.\n<\/p>\n
On
\n\tbehalf of the appellants, case of Noor Aga Vs. State of Punjab
\n\treported in 2008(9) SCALE 681
\n\twas relied upon. However,
\n\tconsidering the facts and circumstances of the said case, appellant
\n\tNoor Aga, when he arrived at the airport, at that time, concerned
\n\tCustoms Officer carried on search of the belongings of the appellant
\n\tand contraband substance was found. In the said case, the
\n\tprosecution did not produce the physical evidence before the trial
\n\tCourt particularly the sample of the purported contraband material.
\n\tNo independent witnesses were examined. There was huge discrepancy
\n\tin the evidence of official witnesses in regard to search and
\n\tseizure. The confessional statement of the appellant was recorded
\n\tu\/s.108 r\/w.Section 138(B) of the Customs Act, 1962. In that
\n\tbackground, Hon’ble Apex Court allowed the appeal and recorded
\n\tacquittal of the appellant. Now, in the instant case, no such
\n\tinfirmities are there as were there in Noor Aga’s case. We do not
\n\tfind any material discrepancy in the evidence of the NCB Officers
\n\texamined in the instant case. Moreover, in the instant case, the
\n\tconcerned NCB Officers recorded the statements of the appellants
\n\taccused u\/s.67 of the NDPS Act.\n<\/p>\n
23.1\tOn
\n\tbehalf of the appellants, case of Union
\n\tof India Vs.Bal Mukund & Ors.\n<\/p>\n
\t2009(2)
\n\tSupreme 170 was
\n\trelied upon. In said case, the statements of the appellants accused
\n\twere recorded u\/s.67 of the NDPS Act. Considering the facts of
\n\tsaid case, Hon’ble Apex Court considered the infirmities
\n\tin
\n\tthe prosecution case. There was outright non-compliance of the
\n\tmandatory provisions contained u\/s.42 of the Act. During the course
\n\tof trial before the trial Court, the confessional statements were
\n\tretracted. It was further observed that the confession of accused
\n\tu\/s.67 of the NDPS Act does not bind his co-accused. In said
\n\tbackground and considering the peculiar facts and circumstances of
\n\tthe said case and the infirmities emerged from the evidence on
\n\trecord, Hon’ble Apex Court held that the conviction should not be
\n\tbased merely on the basis of a confessional statement without any
\n\tindependent corroboration. Now, the facts of our case are totally
\n\tdifferent. In our case, as stated above, no mandatory requirements
\n\tlaid down under the Act have been violated by the NCB Officers.
\n\tNothing transpires that the evidence of the NCB Officers suffers
\n\tfrom material discrepancy or infirmity. In the instant case, there
\n\tis nothing that the statement of co-accused is used while recording
\n\tthe conviction. All the appellants accused individually made their
\n\tstatements u\/s.67 of the NDPS Act before the concerned authorities.\n<\/p>\n
23.2\tUnder
\n\tsuch circumstances, considering the facts and circumstances of the
\n\tinstant case and considering the facts and circumstances and
\n\tevidence in Kanaiyalal s Case (supra),
\n\twe are of the considered opinion that the statements
\n\trecorded under Section 67 of the NDPS Act of the appellants accused
\n\tdeserve to be considered. Nothing transpires that the statements are
\n\toutcome of any coercion, undue influence or any promise. On behalf
\n\tof the appellants case of Raju
\n\tPremji Vs.Customs NER Shillong Unit
\n\treported in 2009
\n\tAIAR (Cr.) 531
\n\tis relied upon. However, considering the facts of the said case,
\n\twhich was arising under this Act, the search of accused persons was
\n\tconducted without complying with Section 50 of the Act. The accused
\n\tpersons were not actually found in possession of any contraband.
\n\tMoreover,  when the statements of accused persons were recorded,
\n\tthey were in police custody. Hon’ble the Apex Court in paragraph 19
\n\tobserved that statement made by them while in custody of Police
\n\tOfficer would be inadmissible in evidence. In paragraph 23 of said
\n\tjudgment, Hon ble Apex Court further observed that  where a
\n\tconfessional statement is voluntary and free from any pressure must
\n\tbe judged from the facts and circumstances of each case . Thus,
\n\tthe facts of our case are totally different. In the present case,
\n\tnothing transpires that at the time when the statements of the
\n\tappellants accused were recorded under Section 67 of the Act, they
\n\twere in police custody or that they were actually arrested. To put
\n\tit differently,
\n\tthere is nothing that statements were post arrest
\n\tstatements.\n<\/p>\n
23.3\tOn
\n\tbehalf of the appellants, judgment dated 21.12.2009 delivered in
\n\tCriminal Appeal No.488 of 2006 with Criminal Appeal No.568 of 2006
\n\twith Criminal Appeal No.799 of 2007 delivered by this Court (Coram:
\n\tA.L.Dave and H.N.Devani, JJ.) in the case of Zarina
\n\tGulam Haji Bhat & Ors. Vs. State of Gujarat & Ors. Is
\n\trelied upon.\n<\/p>\n
\tHowever,
\n\tconsidering the facts of said case, it transpires that original
\n\taccused No.1 Abdul Sheikh was intercepted by NCB Officers while he
\n\twas driving the truck and from the secret compartment of the truck,
\n\tCharas was seized. In his statement recorded u\/s.67 of the NDPS Act,
\n\the only stated that he was to deliver Charas to accused No.2 Suresh
\n\tGupta and accused No.3 Zarina at Mumbai. The statement did not
\n\treveal any further details of Suresh and Zarina. The statement was
\n\trecorded in NCB Office Ahmedabad on 6.1.2002 and on next day
\n\ti.e.7.1.2002, Suresh and Zarina were picked up from Bombay. It
\n\tfurther transpires from the facts of said judgment that Zarina was
\n\talready undergoing a sentence and she was already confined to jail
\n\tin Bombay. The statement of accused No.1 Abdul Sheikh did not
\n\tcontain any details except the first name of Suresh and Zarina. The
\n\tNCB Officer who picked up co-accused Suresh and
\n\tZarina was not examined as witness. This Court, therefore,
\n\tcame to the conclusion that it was not safe to convict a person on
\n\tthe basis of statement of co-accused only when their initial
\n\tidentity and thereby nexus with the crime is not properly
\n\testablished. Under such circumstances, ultimately, the conviction of
\n\taccused No.1 Abdul Sheikh recorded by the trial Court was confirmed
\n\tand his appeal came to be dismissed. However, the appeal preferred
\n\tby appellant original accused No.2 Zarina Gulam Haji Bhat and
\n\tappellant original accused No.3 Suresh Gupta came to be allowed and
\n\tthey were ordered to be acquitted. The facts of our case are totally
\n\tdifferent. In the instant case, the statement of accused No.1 Ketan
\n\tPatel recorded in 1st
\n\tpoint of time on 27.5.2002, Exh.59 contained all the details
\n\tregarding co-accused. So far as accused No.3 Abdul Salim @ Salimbhai
\n\tand accused No.4 Nituben are concerned, they are husband and wife.
\n\tAccused No.3 Abdul Salim @ Salimbhai was found in the house of the
\n\taccused No.1 Ketan Patel. The raid was carried out at Navsari.
\n\tAccused No.3, Abdul Salim @ Salimbhai in his statement, Exh.58
\n\tprovided all the details about the name and full address of his wife
\n\taccused No.4 Nituben and accordingly, the Intelligence Officer PW-3
\n\tMr.Lodha raided the house of accused Nos.3 and 4 at Ahmedabad and
\n\tCharas was recovered.\n<\/p>\n
\tStatement u\/s.67 of the Act of accused No.4 Nituben
\n\twas also recorded subsequent to the recovery of Charas from her
\n\thouse at Ahmedabad.\n<\/p>\n
On
\n\tbehalf of the appellant accused No.5, Naseebbanu, it was vehemently
\n\tsubmitted that so far as accused No.5 Naseebbanu Pathan is
\n\tconcerned, she is convicted by the trial Court solely on the basis
\n\tof her statement, Exh.135 allegedly recorded by Intelligence Office
\n\tof NCB PW-3 Mr.Lodha on 28.5.2002. Nothing objectionable was
\n\trecovered from her or from her house. However, perusing the evidence
\n\tof NCB Officers examined in this case, together with the statement
\n\tof accused No.4 Nituben, recorded u\/s.67 of the Act, Exh.137, it
\n\tclearly transpires that the Charas which was seized from her house
\n\twas supplied to her by accused No.5 Naseebbanu. In her statement,
\n\tExh.135, she identified the accused No.4 Nituben as the lady to whom
\n\tCharas was supplied by her. She further stated that prior to this,
\n\tfor about 10 times, Charas was supplied by her to accused No.4
\n\tNituben. We have seen that all the statements of the appellant
\n\taccused persons, including the statements of accused No.5 Naseebbanu
\n\tare voluntarily made by them and the statements are not outcome of
\n\tany coercion, threat or promise. It is pertinent to note that
\n\taccused No.5 Naseebbanu is not convicted merely on the basis of
\n\tstatement of co-accused No.4 Nituben.\n<\/p>\n
\tHer own statement was also recorded. Her statement also gets
\n\tcorroboration by the evidence regarding the recovery of Charas from
\n\tthe house of accused No.4 Nituben, which, before a week she had
\n\tsupplied to Nituben.\n<\/p>\n
In
\n\tthe result, we are, therefore, of the considered opinion that the
\n\ttrial Court rightly relied upon the statements of the appellants
\n\taccused recorded under Section 67 of the NDPS Act.\n<\/p>\n
On
\n\tbehalf of the appellants, it is submitted that as per the
\n\tprosecution case, Charas was recovered from Navsari as well as from
\n\tAhmedabad. It is submitted that about the Charas recovered from
\n\tNavsari, a separate trial should have been conducted in the
\n\tcompetent Court at Navsari and about the Charas recovered from
\n\tAhmedabad, again a separate trial should have been conducted at
\n\tAhmedabad, but in the instant case, a joint trial was conducted at
\n\tNavsari even regarding the recovery of Charas from Ahmedabad. It is
\n\tfurther submitted that the original accused Nos.1,2,3 and 4 came to
\n\tbe convicted for the offences regarding Charas recovered from
\n\tNavsari as well as the original accused Nos.3 and 4 were again
\n\tconvicted regarding the recovery of Charas from Ahmedabad. That,
\n\tthus,
\n\tthe joint trial itself was material irregularity committed by the
\n\ttrial Court and recording conviction of original accused No.3 Abdul
\n\tSalim @ Salimbhai and original accused No.4 Nituben twice can be
\n\tsaid to be further irregularity as well. Now in this connection,
\n\tconsidering the facts of the present case, it clearly transpires
\n\tthat the initial information was received by the concerned Officer
\n\tof the NCB regarding Charas in the house of accused No.1 at Navsari.
\n\tAt the time of the raid being carried out in the house of accused
\n\tNo.1 at Navsari and when the Charas was found from his house, at
\n\tthat time accused No.1 Ketan Patel, accused No.3 Abdul Salim @
\n\tSalimbhai and absconding accused Mahmed Ramzan were found. From the
\n\tstatements of the accused Nos.1 and 3, it was revealed that accused
\n\tNo.4 Nituben, resident of Ahmedabad and the wife of accused No.3
\n\tAbdul Salim @ Salimbhai was also dealing in Charas at Ahmedabad and
\n\tas a matter of fact, the accused No.3 Abdul Salim @ Salimbhai had
\n\tcome to Navsari at the place of accused No.1 Ketan Patel for the
\n\tpurpose of getting 4 kgs. of Charas. On the basis of said statement,
\n\traid was conducted at Ahmedabad and from the house of accused No.3
\n\tAbdul Salim @ Salimbhai and accused No.4 Nituben, Charas was found.
\n\tThe trial Court in the impugned judgment held that the offence was
\n\tcontinuous
\n\toffence and the offences which were committed though at different
\n\tplaces, but in the course of the same transaction. In this
\n\tconnection, considering the Sub-clause (d) of Section 178 of the
\n\tCr.P.C., it is provided that  where
\n\tit consists of several acts done in different local areas, It may be
\n\tinquired to or tried by a court having jurisdiction over any of such
\n\tlocal areas.  Moreover, Sub-Clause (d) of Sectoin 223 of the
\n\tCr.P.C. prescribes that person accused of different offences
\n\tcommitted in the course of the same transaction, may be charged and
\n\ttried together. Moreover, in the instant case, it is pertinent to
\n\tnote that the trial Court recorded conviction of the appellant
\n\taccused persons regarding offences arising under the NDPS Act read
\n\twith Section 29 of the Act. Relevant part of Section 29 of the Act
\n\truns as under:-\n<\/p>\n
 Section
\n\t29   Punishment for abetment and criminal conspiracy<\/p>\n
(1)<\/span>
\n\tWhoever abets or is a party to a criminal conspiracy to commit an
\n\toffence punishable under this Chapter, shall, whether such offence
\n\tbe or be not committed in consequence of such abetment or in
\n\tpursuance of such criminal conspiracy, and notwithstanding anything
\n\tcontained in section 116 of the Indian Penal Code (45 of 1860), be
\n\tpunishable with the punishment provided for the offence.\n<\/p>\n
(2)<\/span><\/p>\n
\tA person abets…..\n<\/p>\n
In
\n\tthe instant case, as emerged from the evidence on record, the
\n\toffence which was committed at Navsari and the offence which was
\n\tcommitted at Ahmedabad were part and parcel of a criminal conspiracy
\n\tregarding trafficking of Charas by the appellants accused. The trial
\n\tCourt in the impugned judgment assigning cogent and convincing
\n\treasons, discarded the identical contention raised on behalf of the
\n\taccused that the joint trial was illegality. Considering the facts
\n\tand circumstances of the case as well as the relevant provisions
\n\tcontained under the Cr.P.C. and the NDPS Act, as discussed above, we
\n\tdo not find any illegality or any irregularity in the conclusion
\n\tarrived at by the trial Court that the joint trial was permissible
\n\tand cannot be termed to be illegality. When such is the situation,
\n\twe are of the considered opinion that the conviction recorded by the
\n\ttrial Court so far as original accused No.3 Abdul Salim @ Salimbhai
\n\tand original accused No.4 Nituben regarding the offence of recovery
\n\tof Charas at Navsari and the offence of recovery of Charas at
\n\tAhmedabad cannot be said to be illegal. It is further pertinent to
\n\tnote that original accused No.5 Naseebbanu is not convicted for the
\n\toffence of recovery of Charas at Navsari. Considering the overall
\n\tevidence on record as well as the statements of the appellants
\n\taccused recorded under Section 67 of the NDPS Act,
\n\tnowhere it emerges that she was in any respect connected with the
\n\tCharas recovered at Navsari. Her conviction is recorded by the trial
\n\tCourt only regarding the offence pertaining to the Charas recovered
\n\tat Ahmedabad.\n<\/p>\n
On
\n\tbehalf of the appellants it was further submitted that if the
\n\tstatements of the appellants recorded under Section 313 of the
\n\tCr.P.C. are considered, almost identical questions were put to all
\n\tthe accused irrespective of fact whether particular question was
\n\trelevant to particular accused or not and thereby a prejudice was
\n\tcaused to the accused. We have minutely taken into consideration the
\n\tfurther statements of the accused recorded by the trial Court under
\n\tSection 313 of the Cr.P.C. However, considering the further
\n\tstatements, it appears that entire material emerged from the
\n\tevidence on record and used against them was put to all the accused
\n\tpersons, and nothing is specifically indicated that any material
\n\tultimately used by the trial Court while recording the conviction of
\n\tthe accused was not put to him and he was not given any opportunity
\n\tto explain such material and his conviction was recorded. However,
\n\twe do not find any illegality or any infirmity committed by the
\n\ttrial Court while recording the further statements of the accused
\n\tunder Section 313 of the Cr.P.C.\n<\/p>\n
On
\n\tbehalf of the appellants, it was submitted that the trial Court
\n\tmisinterpreted the provisions regarding the presumption contained
\n\tunder Section 35 and Section 54 of the NDPS Act. Section 35 of the
\n\tAct pertains to presumption of culpable mental state and Section 54
\n\tpertains to presumption from possession of illicit articles. It is
\n\tsubmitted that straightway presumptions cannot be raised and initial
\n\tburden lies upon the prosecution to prove its case beyond any
\n\treasonable doubt. In this connection, considering the facts and
\n\tcircumstances and evidence on record in the instant case, we are of
\n\tthe considered opinion that the initial burden about proving the
\n\tcase beyond any reasonable doubt has properly been discharged by the
\n\tprosecution. The prosecution proved beyond reasonable doubt the
\n\tnexus and connection of the appellants accused with the contraband
\n\tarticle Charas. Once the initial burden is discharged, the trial
\n\tCourt rightly raised the presumption regarding the culpable mental
\n\tstate and the presumption contained under Section 54 of the Act.
\n\tConsidering the provisions contained under Section 54 of the Act, it
\n\tis clear that once the prosecution adduced evidence, connecting the
\n\taccused with the contraband substance under the Act and the evidence
\n\tis found to be beyond any reasonable doubt, the burden shifts upon
\n\tthe accused to satisfactorily account
\n\tfor said possession. In the instant case, the only defence raised by
\n\tthe appellants accused is of bare denial. To put it differently, the
\n\tpresumption contained under the Act has not been duly rebutted by
\n\tthe accused.\n<\/p>\n
In
\n\tlight of the entire above discussions, therefore, we are of the
\n\tconsidered opinion that the trial Court rightly recorded the
\n\tconviction of the appellants accused for the offences charged
\n\tagainst them. The appellants accused Nos.1, 3 and 4 are convicted of
\n\tthe offences pertaining to commercial quantity of contraband
\n\tsubstance Charas and the trial Court, therefore, rightly awarded the
\n\tminimum sentence prescribed under Section 20(b)(ii)(c) of the NDPS
\n\tAct and rightly awarded the sentence of R.I for ten years and fine
\n\tof Rs.1 Lac.\n<\/p>\n
30.1\tMoreover,
\n\talong with appellant original accused No.5 Naseebbanu, the
\n\tappellants accused Nos.3 and 4 are convicted of the offence
\n\tpunishable under Section 20(b)(ii)(B) of the NDPS Act regarding the
\n\trecovery of Charas at Ahmedabad from their house. The Charas
\n\trecovered was more than the small quantity, but lesser than the
\n\tcommercial quantity as prescribed under the NDPS Act. As discussed
\n\tabove in this judgment, the trial Court rightly recorded conviction
\n\tof appellants accused Nos.3 and 4 for intermediate
\n\tquantity of Charas recovered from their house at Ahmedabad and
\n\trightly awarded the sentence accordingly. The trial Court has also
\n\tdirected that the sentences of imprisonment shall run concurrently.
\n\tHowever, so far as appellant accused No.5 Naseebbanu Pathan is
\n\tconcerned, her conviction is recorded for the offence under Section
\n\t20(b)(ii)(B) of the NDPS Act wherein no minimum sentence is
\n\tprescribed and the said offence is punishable with R.I for a term
\n\twhich may extend to ten years and with fine, which may extend to
\n\tRs.1 Lac. She is convicted for the offence of recovery of Charas
\n\twhich was though more than small quantity, but lesser than
\n\tcommercial quantity. It is further pertinent to note that pending
\n\tthe appeal, appellant original accused No.5 Naseebbanu Yusufkhan
\n\tPathan by order dated 18.9.2008 in Criminal Misc.Application
\n\tNo.10718 of 2008 came to be released on bail and her sentence was
\n\tordered to be suspended and at the time when she was released on
\n\tbail, she had already undergone imprisonment of six years and three
\n\tmonths out of the total imprisonment of seven years awarded to her.
\n\tLearned advocate Mr.Agrawal for the appellant accused No.5
\n\tNaseebbanu stated at bar that she had already deposited the amount
\n\tof fine of Rs.50000\/- awarded by the trial Court. Considering the
\n\tfacts and circumstances
\n\tof the case, it would be in the fitness of the things, if the
\n\tsentence of imprisonment awarded to her by the trial Court is
\n\taltered to the period already undergone by her in jail. The
\n\tappellants are also convicted for the offences punishable under
\n\tSection under Sections 25 and 29 of the NDPS Act. However, no
\n\tseparate sentences are provided for the offences and they are
\n\tpunishable with the punishment provided for principal offences.
\n\tAccordingly, for principal offences, the trial Court has awarded the
\n\tsentences in accordance with the  quantity  of Charas seized, as
\n\tdiscussed above.\n<\/p>\n
In
\n\tthe result, the appeals preferred by appellants accused Nos.1, 3 and
\n\t4 bearing Criminal Appeal Nos.718 and 994 of 2007 are devoid of any
\n\tmerits and deserve dismissal. The appeal preferred by appellant
\n\taccused No.5 deserves to be partly allowed only to the extent of the
\n\tsentence, maintaining her conviction recorded by the trial Court.\n<\/p>\n
For
\n\tthe foregoing reasons,
\n\tCriminal
\n\tAppeal No.718 of 2007 and Criminal Appeal No.994 of 2007 stand
\n\tdismissed.\n<\/p>\n
\tCriminal
\n\t\tAppeal No.1440 of 2008 is partly allowed. The conviction of
\n\t\tappellant   original accused No.5 Smt.Naseebbanu
\n\t\tYusufkhan Pathan recorded by learned Additional Sessions Judge, 2nd
\n\t\tFast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1
\n\t\tof 2003 for the offences punishable under Sections 8(c),
\n\t\t20(b)(ii)(b), 25 read with Section 29 of the Narcotic Drugs and
\n\t\tPsychotropic Substances Act, 1985, is maintained.  However, the
\n\t\tsentence of imprisonment of R.I for seven years awarded to the
\n\t\tappellant original accused No.5 Smt.Naseebbanu Yusufkhan Pathan is
\n\t\taltered to the period already undergone by her in the jail,
\n\t\tmaintaining the order of fine. Since she has already deposited the
\n\t\tfine, she is not required to surrender to jail. Her bail bonds
\n\t\tshall stand cancelled.\n<\/p>\n
\t\t\t\t\t\t\t(Ravi
\nR.Tripathi, J.)<\/p>\n
\t\t\t\t\t\t\t(J.C.\n<\/p>\n
Upadhyaya, J.)<\/p>\n
(binoy)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Abdul vs 2 Criminal on 27 January, 2010 Author: Ravi R.Tripathi,&Nbsp;Honourable J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-223106","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAbdul vs 2 Criminal on 27 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abdul-vs-2-criminal-on-27-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abdul vs 2 Criminal on 27 January, 2010 - 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