{"id":40666,"date":"2010-05-07T00:00:00","date_gmt":"2010-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sulochnaben-vs-exh-3-on-7-may-2010"},"modified":"2018-08-25T20:58:51","modified_gmt":"2018-08-25T15:28:51","slug":"sulochnaben-vs-exh-3-on-7-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sulochnaben-vs-exh-3-on-7-may-2010","title":{"rendered":"Sulochnaben vs Exh.3 on 7 May, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sulochnaben vs Exh.3 on 7 May, 2010<\/div>\n
Author: Jayant Patel,&Nbsp;Honourable Z.K.Saiyed,&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\/1269\/2008\t 77\/ 80\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. 1269 of 2008\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 2550 of 2008\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 1726 of 2008\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 1826 of 2008\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 1398 of 2008\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 1779 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL \n\n \n\n \n\n\n \n\n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED \n\n \n\n \n \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\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\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=====================================================\n\n\n \n\nSULOCHNABEN\nSHIVRAM KADAM - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Opponent(s)\n \n\n=====================================================\n \nAppearance : \n \n \n\n\n \n\nMR\nVIRAT G POPAT for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1269\/08)\n \n\nMR\n BB NAIK for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1398\/08)\n \n\nMR\nASHISH DAGLI for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1726\/08) &\nMR PR ABICHANDANI for Opponent No.2\n \n\nMR\nHEMANG R. RAVAL for Appellant(s) : 1(IN CRIMINAL APPEAL NO.1826\/08)\n \n\nMR\nCHIRAG M PAWAR & MR PRATIK B BAROT for Appellant(s) : 1(IN\nCRIMINAL APPEAL NO.1779\/08)\n \n\nMR\nHB SHETHNA for Appellant(s) : 1(IN CRIMINAL APPEAL NO.2550\/08)\n \n\n \nMR\nKP RAVAL, APP for Opponent(s) : 1,(IN ALL THE MATTERS) \nMR HRIDAY\nBUCH for Opponent No.2 (IN ALL THE CONCERNED\nMATTERS) \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 07-10\/05\/2010 \n\n \n\n \n \nCOMMON\nORAL JUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE JAYANT PATEL)<\/p>\n
As
\n\tall the appeals arise out of the common judgement and order of the
\n\ttrial Court, they are being considered by this common judgement.\n<\/p>\n
As
\n\tper the prosecution case, Narcotic Control Bureau (hereinafter
\n\treferred to as ‘NCB’ for
\n\tshort) received secrete specific information that a Kashmiri Sikh
\n\tperson was carrying a huge quantity of Charas
\n\tin secret chamber of the driver’s cabin of one truck bearing R.T.O.
\n\tNo.PAT
\n\t8683, coming from the State of Jammu and Kashmir with the
\n\tconsignment of approximately 92.670 kgs Charas
\n\t(Hashish) and the said Charas
\n\twas to be delivered to a person named Gulam Mohammad (A-2), resident
\n\tof Dabhoi, Vadodara (Baroda) District in Gujarat State and the said
\n\tGulam Mohammad (A-2) was to come in a fiat car bearing RTO
\n\tRegistration No.GJ-S-8242 and the delivery was to be effected at a
\n\tspecific place near the office of Transport Corporation of India
\n\t(‘TCI’ for short), opposite Hotel Shere Punjab, National Highway
\n\tNo.8 ahead of Narol Chokadi, Ahmedabad on 29.9.2001 at about 10 a.m.
\n\t As per the prosecution case, the said information was reduced in
\n\twriting by the Intelligence
\n\tOffice of NCB and was submitted to the Zonal Director of NCB and
\n\tthereafter, a joint team of officers of NCB and ATS Squad formed a
\n\tteam to take necessary action and proceed further.  On reaching at
\n\tthe site as per the information provided to them, the NCB Officers
\n\tsaw the truck bearing No.PAT 8683 parked near TCI Office.
\n\tThereafter, the panchas
\n\tand
\n\tother officers made small group to maintain search at different
\n\tplaces to look for the car bearing RTO Registration No.GAS 8042
\n\tcoming from Baroda.  At
\n\tabout 11 hours, one fiat car of white colour bearing RTO
\n\tRegistration No.GAS 8042 was seen coming from Baroda (Vadodara) and
\n\tthere were three occupants in the car and the car stopped near the
\n\ttruck bearing RTO Registration No.PAT 8683.  Two persons sitting at
\n\tthe back of the car alighted from the car and they went near the
\n\ttruck No.PAT8683 and stood there.  After some time, one Sardarjee
\n\tcame there and started talking to them.   The said Sardarjee boarded
\n\tthe driving cabin of Truck No.PAT 8683 and got down after a few
\n\tminutes with
\n\tsome black-brown coloured packets and handed over the said packets
\n\tto the said two persons.  Thereafter the said two persons, after
\n\tcollecting the packets went to the Car No.GAS 8042 and sat on the
\n\tback seat.  Thereafter, Shri Shailendra Lodha, I.O., Zonal Director
\n\tand other two persons surrounded the said car No.AS 8042 along with
\n\tthe two occupants and the Kashmiri Sardarjee,
\n\twho stood by the truck No.GAS 8683.  It appears that thereafter the
\n\tsearch and seizure was made and as per the prosecution case after
\n\tfollowing requisite procedure and some black-brown coloured
\n\tball-shaped solid substances (ladoos)
\n\twere found to be kept inside.  Some of them were tested on the spot
\n\twith the help of the testing kit and gave positive result for
\n\tCharas.\n<\/p>\n
\t Since it was not  possible to weigh all these packets at the site
\n\tand to conduct further procedures, they were repacked and handed
\n\tover to the Panchas.\n<\/p>\n
\t Thereafter, the NCB Officers also searched the truck and it was
\n\tfound that the truck was having one cavity, which was opening like a
\n\tdoor and in the
\n\tsaid cavity, 14 packets tied in different coloured polythene bags
\n\twere also found.  These packets were containing black-brown coloured
\n\tLadoo-shaped
\n\tsolid
\n\tsubstances.  The test was also carried out at the field and it gave
\n\tpositive result for Charas.\n<\/p>\n
\tThe further steps were taken at the NCB Office.  The packets with
\n\tthe Panchas
\n\twere opened and the weighing and sealing
\n\tprocess was undertaken with the help of electronic weighing machine.
\n\t It was found that the packets recovered from the car GAS No.8042 as
\n\twell as from the truck No.PAT 8683 were containing Charas
\n\tand
\n\tother material, the details of which are as follows :-\n<\/p>\n
Description
\n\tof packets containing charas
\n\trecovered
\n\tfrom Car
\n\tNo.GAS-8042.\n<\/p>\n
S.No.\n<\/p>\n
Exh.\n<\/p>\n
Gross
\n\t\t\tWeight<\/p>\n
No.\n<\/p>\n
\t\t\tof Ladoos<\/p>\n
Net
\n\t\t\tweight<\/p>\n
Samples
\n\t\t\tweight<\/p>\n
Samples
\n\t\t\tand Exh.\n<\/p>\n
1<\/span><\/p>\n
B<\/p>\n
3.940<\/p>\n
23<\/span><\/p>\n
3.780<\/p>\n
3<\/span>
\n\t\t\tsamp 25grms each<\/p>\n
B1,
\n\t\t\tB2, B3<\/p>\n
2<\/span><\/p>\n
A<\/p>\n
4.196<\/p>\n
27<\/span><\/p>\n
4.003<\/p>\n
–\n<\/p>\n
\t\t\tdo –\n<\/p>\n
A1,A2,
\n\t\t\tA3<\/p>\n
3<\/span><\/p>\n
C<\/p>\n
4.226<\/p>\n
17<\/span><\/p>\n
4.072<\/p>\n
–\n<\/p>\n
\t\t\tdo –\n<\/p>\n
C1,C2,C3<\/p>\n
4<\/span><\/p>\n
D<\/p>\n
4.180<\/p>\n
17<\/span><\/p>\n
4.031<\/p>\n
–\n<\/p>\n
\t\t\tdo –\n<\/p>\n
D1,D2,D3<\/p>\n
5<\/span><\/p>\n
E<\/p>\n
4.216<\/p>\n
18<\/span><\/p>\n
4.044<\/p>\n
–\n<\/p>\n
\t\t\tdo –\n<\/p>\n
E1,E2,E3<\/p>\n
6<\/span><\/p>\n
F<\/p>\n
4.232<\/p>\n
21<\/span><\/p>\n
4.064<\/p>\n
–\n<\/p>\n
\t\t\tdo –\n<\/p>\n
F1,F2,F3<\/p>\n
7<\/span><\/p>\n
G<\/p>\n
4.190<\/p>\n
16<\/span><\/p>\n
4.042<\/p>\n
–\n<\/p>\n
\t\t\tdo –\n<\/p>\n
G1,G2,G3<\/p>\n
8<\/span><\/p>\n
H<\/p>\n
4.208<\/p>\n
27<\/span><\/p>\n
4.048<\/p>\n
–\n<\/p>\n
\t\t\tdo –\n<\/p>\n
M1,M2,M3<\/p>\n
Description
\n\tof packets containing charas
\n\trecovered
\n\tfrom Truck bearing
\n\tRegn. PAT-8683.\n<\/p>\n
S.No.\n<\/p>\n
Exh.\n<\/p>\n
Gross
\n\t\t\t\tWeight<\/p>\n
No.\n<\/p>\n
\t\t\t\tof Ladoos<\/p>\n
Net
\n\t\t\t\tweight<\/p>\n
Samples
\n\t\t\t\tweight<\/p>\n
Samples
\n\t\t\t\tand Exh.\n<\/p>\n
9<\/span><\/p>\n
I<\/p>\n
4.120<\/p>\n
23<\/span><\/p>\n
3.982<\/p>\n
3<\/span>
\n\t\t\t\tsamp  25grms each<\/p>\n
I1,
\n\t\t\t\tI2,I3<\/p>\n
10<\/span><\/p>\n
J<\/p>\n
4.202<\/p>\n
22<\/span><\/p>\n
4.050<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
J1,J2,
\n\t\t\t\tJ3<\/p>\n
11<\/span><\/p>\n
K<\/p>\n
4.208<\/p>\n
28<\/span><\/p>\n
4.084<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
K1,K2,K3<\/p>\n
12<\/span><\/p>\n
L<\/p>\n
4.162<\/p>\n
30<\/span><\/p>\n
4.044<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
L1,L2,L3<\/p>\n
13<\/span><\/p>\n
M<\/p>\n
4.064<\/p>\n
22<\/span><\/p>\n
3.944<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
M1,M2,M3<\/p>\n
14<\/span><\/p>\n
N<\/p>\n
4.160<\/p>\n
22<\/span><\/p>\n
4.046<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
N1,N2,N3<\/p>\n
15<\/span><\/p>\n
O<\/p>\n
4.118<\/p>\n
25<\/span><\/p>\n
3.966<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
O1,O2,O3<\/p>\n
16<\/span><\/p>\n
P<\/p>\n
4.146<\/p>\n
28<\/span><\/p>\n
3.972<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
P1,P2,P3<\/p>\n
17<\/span><\/p>\n
Q<\/p>\n
4.250<\/p>\n
28<\/span><\/p>\n
4.078<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
Q1,Q2,Q3<\/p>\n
18<\/span><\/p>\n
R<\/p>\n
4.300<\/p>\n
25<\/span><\/p>\n
4.122<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
R1,R2,R3<\/p>\n
19<\/span><\/p>\n
S<\/p>\n
4.264<\/p>\n
28<\/span><\/p>\n
4.094<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
S1,S2,S3<\/p>\n
20<\/span><\/p>\n
T<\/p>\n
4.302<\/p>\n
28<\/span><\/p>\n
4.126<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
T1,T2,T3<\/p>\n
21<\/span><\/p>\n
U<\/p>\n
4.170<\/p>\n
68<\/span><\/p>\n
4.066<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
U1,U2,U3<\/p>\n
22<\/span><\/p>\n
V<\/p>\n
3.870<\/p>\n
81<\/span><\/p>\n
3.750<\/p>\n
–\n<\/p>\n
\t\t\t\tdo –\n<\/p>\n
V1,V2,V3<\/p>\n
Accordingly,
\n\tthe total quantity of Charas
\n\tfound from the car No.GAS 8042 was weighing 33.338 kgs and from the
\n\ttruck No.PAT 8683, the total quantity
\n\trecovered of Charas
\n\twas 59.332 kgs. The necessary panchnamas were drawn and the
\n\tstatement of Daljisingh (A-1) under Section 67 of NDPS Act was
\n\trecorded.  The statement of Gulam Mohammad (A-2) was also recorded
\n\tunder Section 67 of NDPS Act, the statement of Abdul S. Noormohammad
\n\t(A-3) was also recorded under Section 67 of the Act, the Statement
\n\tof Iqbal Ibrahim Shaikh (A-4) under Section 67 was also recorded.
\n\tAs per the FSL report it was found that the samples have presence of
\n\tHashish
\n\ta narcotic substance covered under NDPS Act.  Thereafter, further
\n\tstatement of A-1 under Section 67 of the Act was also recorded.  In
\n\tthe further statement of A-1, the name of Shivkadam @ Shidada had
\n\ttranspired and his involvement in the
\n\tdrug trafficking.  It was learnt by NCB Officers that the said
\n\tShivkadam   original accused No.5 was to run away from his house
\n\tat Vadodara, therefore, he was served with the summons and
\n\tthereafter, the statement of A-5 under Section 67 of the Act was
\n\talso recorded.  Thereafter the house of A-5 was also searched in
\n\tpresence
\n\tof panchas
\n\tand seven packets containing charas
\n\tweighing a total quantity of 23.383 kgs was found and seized.  The
\n\tdetails of such packets are as under :-\n<\/p>\n
Exhibit<\/p>\n
Gross
\n\t\t\t\tWeight (Kg.)<\/p>\n
A<\/p>\n
2.918<\/p>\n
B<\/p>\n
3.092<\/p>\n
C<\/p>\n
3.082<\/p>\n
D<\/p>\n
3.008<\/p>\n
E<\/p>\n
3.094<\/p>\n
F<\/p>\n
4.098<\/p>\n
G<\/p>\n
4.094<\/p>\n
Total
\n\t\t\t\tGross Weight<\/p>\n
23.386<\/p>\n
The
\n\tpackets were opened and the samples were taken and on the filed,
\n\tthey were tested with the help of testing kits and positive result
\n\twas found.  Therefore, the procedure for repacking and resealing the
\n\tpackets were undertaken. Further,
\n\ta cash amount of Rs.2 lac and loose papers, files, diary, FDRs Fixed
\n\tDeposit Receipts) of Kissan Vikas Patra were also found and they
\n\twere seized, inventorized and sealed from the house of A-5 under the
\n\tAct.  Further, the statement of A-5 under Section 67 of the Act was
\n\talso recorded.  The statement of wife of A-5,
\n\tSmt. Sulojanaben Shivram Kadam under Section 67 of the Act also
\n\trecorded.  In the statement of A-5, the involvement of Shri Ashif @
\n\tAsif H. Chavla (A-6) was found in  drug trafficking as one of the
\n\tconspirators and abettors.  Therefore, he was summoned and
\n\tthereafter the statement of A-6 was also recorded under Section 67
\n\tof the Act.  As per the prosecution case, since all the accused had
\n\tcommitted offences under Section 20(b) read with Section 8(c),
\n\tSections 28 and 29 of NDPS Act, the complaint was filed before the
\n\tlearned Special Judge being NDPS Case No.4\/2002 against all the
\n\taccused by Shri Umesh J. Pathak, I.O. of NCB under the duty
\n\tauthority given to him.\n<\/p>\n
\tThe
\n\tlearned Special Judge framed the charges and thereafter upon the
\n\tdenial by the accused for commission of offence the case was tried
\n\tby the learned Special Judge.\n<\/p>\n
\tThe
\n\tprosecution in support of the charges for proving the guilt of the
\n\taccused, examined following seven witnesses and produced 61
\n\tdocumentary evidences as under :\n<\/p>\n
1.<\/p>\n
PW-1<\/p>\n
Shailendra
\n\t\t\tJayprakash Lodha   Ex 29 (Seizing Officer)<\/p>\n
2.<\/p>\n
PW-2<\/p>\n
Jagdishbhai
\n\t\t\tHirjibhai Ramani   Ex. 90 (Panch witness to the Seizure
\n\t\t\tPanchnama dated 29.9.2001 regarding seizure at Narol Chokdi)<\/p>\n
3.<\/p>\n
PW-3<\/p>\n
Jayeshbhai
\n\t\t\tAnilbhai Karadiya   Ex. 109 (Panch Witness to the seizure
\n\t\t\tpanchnama dated 16.12.2001 regarding seizure at residence of
\n\t\t\tAccused No.5 at Baroda)<\/p>\n
4.<\/p>\n
PW-4<\/p>\n
Umesh
\n\t\t\tJayantbhai Pathak   Ex. 114 (Investigating Officer)<\/p>\n
5.<\/p>\n
PW-5<\/p>\n
Janmahmad
\n\t\t\tFakirbhai Mansari   Ex. 185 (Expert from Forensic Science
\n\t\t\tLaboratory)<\/p>\n
6.<\/p>\n
PW-6<\/p>\n
Markandbhai
\n\t\t\tKantilalbhai Pathak   Ex. 192 (Expert from Forensic Science
\n\t\t\tLaboratory)<\/p>\n
7.<\/p>\n
PW-7<\/p>\n
Pavansing
\n\t\t\tGajesing Tomar   Ex. 197 (Zonal Director of N.C.B.)<\/p>\n
The
\nprosecution has produced the documentary evidence with list at Ex.
\n20, 24, and 64 as follows:-\n<\/p>\n
1.<\/p>\n
Exh.30<\/p>\n
Notice
\n\t\t\tunder Section 50 of NDPS Act to accused No.2<\/p>\n
2.<\/p>\n
Exh.31<\/p>\n
Notice
\n\t\t\tunder Section 50 of NDPS Act to accused No.4<\/p>\n
3.<\/p>\n
Exh.32<\/p>\n
Notice
\n\t\t\tunder Section 50 of NDPS Act to accused No.3<\/p>\n
4.<\/p>\n
Exh.33<\/p>\n
Notice
\n\t\t\tunder Section 50 of NDPS Act to accused No.1<\/p>\n
5.<\/p>\n
Exh.34<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.1<\/p>\n
6.<\/p>\n
Exh.35<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.2<\/p>\n
7.<\/p>\n
Exh.36<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.3<\/p>\n
8.<\/p>\n
Exh.37<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.4<\/p>\n
9.<\/p>\n
Exh.39<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.1<\/p>\n
10.<\/p>\n
Exh.40<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.2<\/p>\n
11.<\/p>\n
Exh.41<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.3<\/p>\n
12.<\/p>\n
Exh.42<\/p>\n
Summons
\n\t\t\tU\/s 67 of NDPS Act to accused No.4<\/p>\n
13.<\/p>\n
Exh.43<\/p>\n
Arrest
\n\t\t\tMemo of accused No.1<\/p>\n
14.<\/p>\n
Exh.44<\/p>\n
Arrest
\n\t\t\tMemo of accused No.2<\/p>\n
15.<\/p>\n
Exh.45<\/p>\n
Arrest
\n\t\t\tMemo of accused No.3<\/p>\n
16.<\/p>\n
Exh.46<\/p>\n
Arrest
\n\t\t\tMemo of accused No.4<\/p>\n
17.<\/p>\n
Exh.47<\/p>\n
Intimation
\n\t\t\tregarding arrest to relatives of accused No.1<\/p>\n
18.<\/p>\n
Exh.48<\/p>\n
Intimation
\n\t\t\tregarding arrest to relatives of accused No.2<\/p>\n
19.<\/p>\n
Exh.49<\/p>\n
Intimation
\n\t\t\tregarding arrest to relatives of accused No.3<\/p>\n
20.<\/p>\n
Exh.50<\/p>\n
Intimation
\n\t\t\tregarding arrest to relatives of accused No.4<\/p>\n
21.<\/p>\n
Exh.51<\/p>\n
Forwarding
\n\t\t\tletter to FSL, Gandhinagar<\/p>\n
22.<\/p>\n
Exh.52<\/p>\n
Test
\n\t\t\tMemo<\/p>\n
23.<\/p>\n
Exh.53<\/p>\n
Report
\n\t\t\tof FSL<\/p>\n
24.<\/p>\n
Exh.54<\/p>\n
Forwarding
\n\t\t\tletter to CRCL, New Delhi<\/p>\n
25.<\/p>\n
Exh.55<\/p>\n
Test
\n\t\t\tMemo<\/p>\n
26.<\/p>\n
Exh.56<\/p>\n
Report
\n\t\t\tunder Section 57 of NDPS Act<\/p>\n
27.<\/p>\n
Exh.57<\/p>\n
2nd
\n\t\t\tStatement U\/s 67 of NDPS Act of accused No.1<\/p>\n
28.<\/p>\n
Exh.67<\/p>\n
Entry
\n\t\t\tin Log Book<\/p>\n
29.<\/p>\n
Exh.68<\/p>\n
Entry
\n\t\t\tin Log Book<\/p>\n
30.<\/p>\n
Exh.69<\/p>\n
Auto
\n\t\t\tSales Bill<\/p>\n
31.<\/p>\n
Exh.70<\/p>\n
Petrol
\n\t\t\tBill<\/p>\n
32.<\/p>\n
Exh.71<\/p>\n
Application<\/p>\n
33.<\/p>\n
Exh.91<\/p>\n
Panchnama
\n\t\t\tdated 29.9.2001 regarding seizure at Narol Chokdi<\/p>\n
34.<\/p>\n
Exh.110<\/p>\n
Panchnama
\n\t\t\tdated 16.12.2001 at residence of accused No.5 at Baroda.\n<\/p>\n
35.<\/p>\n
Exh.115<\/p>\n
Gist
\n\t\t\tof information in compliance u\/s 42(2) of NDPS Act<\/p>\n
36.<\/p>\n
Exh.116<\/p>\n
Summons
\n\t\t\tu\/s 67 of NDPS Act to accused No.5<\/p>\n
37.<\/p>\n
Exh.117<\/p>\n
Statement
\n\t\t\tu\/s 67 of NDPS Act to accused No.5<\/p>\n
38.<\/p>\n
Exh.118<\/p>\n
Information
\n\t\t\tby accused No.5<\/p>\n
39.<\/p>\n
Exh.119<\/p>\n
2nd
\n\t\t\tStatement u\/s 67 of NDPS Act of accused No.5<\/p>\n
40.<\/p>\n
Exh.120<\/p>\n
Arrest
\n\t\t\tMemo of accused No.5<\/p>\n
41.<\/p>\n
Exh.121<\/p>\n
Information
\n\t\t\tregarding arrest to relatives of accused No.5<\/p>\n
42.<\/p>\n
Exh.123<\/p>\n
Statement
\n\t\t\tu\/s 67 of NDPS Act of accused No.5<\/p>\n
43.<\/p>\n
Exh.124<\/p>\n
Statement
\n\t\t\tu\/s 67 of NDPS Act of accused No.5<\/p>\n
44.<\/p>\n
Exh.125<\/p>\n
Summons
\n\t\t\tto wife of accused No.5 – Sulochnaben<\/p>\n
45.<\/p>\n
Exh.126<\/p>\n
Statement
\n\t\t\tu\/s 67 of NDPS Act of w\/o accused No.5<\/p>\n
46.<\/p>\n
Exh.127<\/p>\n
Intimation
\n\t\t\tto Telephone Department<\/p>\n
47.<\/p>\n
Exh.128<\/p>\n
O\/C
\n\t\t\tof forwarding letter to CRCL, New Delhi<\/p>\n
48.<\/p>\n
Exh.129<\/p>\n
Report
\n\t\t\tof CRCL, New Delhi regarding seizure taken place at Narol Chokdi,
\n\t\t\tAhmedabad<\/p>\n
49.<\/p>\n
Exh.130<\/p>\n
Report
\n\t\t\tof FSL, Ahmedabad regarding seizure at Narol Chokdi, Ahmedabad<\/p>\n
50.<\/p>\n
Exh.131<\/p>\n
Summons
\n\t\t\tu\/s 67 of NDPS Act to accused No.6<\/p>\n
51.<\/p>\n
Exh.132<\/p>\n
Summons
\n\t\t\tu\/s 67 of NDPS Act to accused No.6<\/p>\n
52.<\/p>\n
Exh.133<\/p>\n
Arrest
\n\t\t\tMemo of accused No.6<\/p>\n
53.<\/p>\n
Exh.134<\/p>\n
Telegram
\n\t\t\tto accused No.5<\/p>\n
54.<\/p>\n
Exh.136<\/p>\n
Letter
\n\t\t\tto BSNL, Baroda<\/p>\n
55.<\/p>\n
Exh.137<\/p>\n
Forwarding
\n\t\t\tletter to FSL regarding seizure at Baroda<\/p>\n
56.<\/p>\n
Exh.138<\/p>\n
Receipt
\n\t\t\tof FSL, receiving Muddamal
\n\t\t\tArticles<\/p>\n
57.<\/p>\n
Exh.139<\/p>\n
Report
\n\t\t\tof FSL regarding seizure of Baroda<\/p>\n
58.<\/p>\n
Exh.140<\/p>\n
Complaint<\/p>\n
59.<\/p>\n
Exh.198<\/p>\n
Letter
\n\t\t\tto Bombay Narcotic Cell<\/p>\n
60.<\/p>\n
Exh.199<\/p>\n
Reply
\n\t\t\tof Bombay Narcotic Celll<\/p>\n
61.<\/p>\n
Exh.200<\/p>\n
Letter
\n\t\t\tto Zonal Director, NCB, Chandigarh<\/p>\n
The
\n\tstatement of the accused thereafter was recoded under Section 313 of
\n\tCr. P.C., wherein they have denied the commission of offence and in
\n\tthe further statements, A-1 to A-4 stated that they were directly or
\n\tindirectly not connected with the said vehicles and with narcotic
\n\tsubstance i.e. Charas
\n\tand they were not present at the place from where the vehicles and
\n\tthe narcotic substances were recovered and seized.  After the
\n\trecording of the statement under
\n\tSection 313 of the Act of A-5, it was reported that Accused-5 had
\n\texpired.  It was further stated by the accused in general that NCB
\n\tofficers have forced them to sign the papers by putting them under
\n\tthe fear of mental and physical torture and, therefore, no statement
\n\tas averred and alleged by the prosecution should be believed.
\n\t The accused also stated that they had repeatedly told the officers
\n\tthat they were innocent and they have been wrongly planted by the
\n\tNCB Officers and they were wrongly implicated, as per the accused.\n<\/p>\n
\tIt
\n\tmay be recorded that none of the accused has stepped into the
\n\twitness box, but accused No.3 and others have not examined any
\n\twitness in defence, whereas accused Nos.1, 2, and 4 examined, in
\n\tall, 12 defence witnesses as follows :-\n<\/p>\n
1<\/span><\/p>\n
DW-1<\/p>\n
Hasinabanu
\n\t\t\t\tGulam Muhmad Ganai   Ex 208 (w\/o Accused No.2 Gulam Mohammad
\n\t\t\t\tHajibulla Ganai)<\/p>\n
2<\/span><\/p>\n
DW-2<\/p>\n
Mahmad
\n\t\t\t\tFaruk Abdul Karim Ludaniya   Ex 209 (Witness of Accused No.2
\n\t\t\t\tGulam Mohmmad Hajibulla Ganai)<\/p>\n
3<\/span><\/p>\n
DW-3<\/p>\n
Hasanali
\n\t\t\t\tKadarmiya Diwan   Ex 210 (Witness of Accused No.2 Gulam
\n\t\t\t\tMohammad Hajibulla Ganai)<\/p>\n
4<\/span><\/p>\n
DW-4<\/p>\n
Sabbirbhai
\n\t\t\t\tYsinbhai Begwala   Ex. 211 (Witness of Accused No.2 Gulam
\n\t\t\t\tMohammad Hajibulla Ganai)<\/p>\n
5<\/span><\/p>\n
DW-5<\/p>\n
Nazmin
\n\t\t\t\tIqbalbhai Ansari   Ex 214 (w\/o  accused No.4 Iqbal Ibrahim)<\/p>\n
6<\/span><\/p>\n
DW-6<\/p>\n
Aiyub
\n\t\t\t\tGulamnabi Shaikh   Ex 217 (son-in-law of accused No.4 who
\n\t\t\t\thappens to be uncle-in-law of witness)<\/p>\n
7<\/span><\/p>\n
DW-7<\/p>\n
Allahrakha
\n\t\t\t\tMalnmiya Arab   Ex 218 (witness of accused No.4 Iqbal Ibrahim)<\/p>\n
8<\/span><\/p>\n
DW-8<\/p>\n
Pravinchandra
\n\t\t\t\tTribhovandas Gajjar   Ex. 219 (Manager of Central Warehousing
\n\t\t\t\tCorpn. Examined by accused Gulam Mohammad Hajibulla Ganai)<\/p>\n
9<\/span><\/p>\n
DW-9<\/p>\n
Ganibhai
\n\t\t\t\tRasulbhai Mansuri   Ex. 223 (Witness of accused No.4 Iqbal
\n\t\t\t\tIbrahim)<\/p>\n
10<\/span><\/p>\n
DW-10<\/p>\n
Sureshbhai
\n\t\t\t\tMaganbhai
\nRathwa   Ex 228 (Police Constable   witness of
\n\t\t\t\taccused No.4 Iqbal Ibrahimwith regard to visit of his relatives
\n\t\t\t\tto Police Commissioner, Baroda)<\/p>\n
11<\/span><\/p>\n
DW-11<\/p>\n
Bharatbhai
\n\t\t\t\tDungarsinhbhai Lakhtariya   Ex 229  ( reporter of Gujarat
\n\t\t\t\tSmachar   witness of accused No.4 Iqbal Ibrahim regarding news
\n\t\t\t\tpublished in daily newspaper
\n\t\t\t\tof Baroda Edition)<\/p>\n
12<\/span><\/p>\n
DW-12<\/p>\n
Opinandar
\n\t\t\t\tShribalaji Ganju   Ex 237 (witness of accused No.1 regarding
\n\t\t\t\this presence in service)<\/p>\n
The
\n\tlearned Special Judge, thereafter heard the complainant\/prosecution
\n\tas well as the accused and ultimately for the reasons recorded in
\n\tthe judgement and order found that since accused No.5
\n\thad expired the case had abated against him and so far as A-1 to A-4
\n\tand A-6 were concerned, it was found by the learned Special Judge
\n\tthat they were guilty and deserves to be convicted for the offences
\n\tpunishable under Sections 8(c), 20(b) read with Section 29 of NDPS
\n\tAct.  The learned
\n\tSpecial Judge heard the accused for punishment and conviction and
\n\tultimately the Special Judge convicted A-1 to A-4 and A-6 and
\n\tsentenced for life-imprisonment with the fine of Rs.1 lac to each of
\n\tthe accused and in default, further R.I. for a period of two years
\n\tby each of them. However, so far as the muddamal
\n\tis concerned, the learned Special Judge directed for confiscation of
\n\tthe same by the Department of Narcotic Control Bureau and the amount
\n\tof Rs.2 lac in cash and the amount accrued in the FDR of Kissan
\n\tVikas Patra seized from A-5 were also ordered to be confiscated by
\n\tNCB Department and the forfeiture thereof and to be deposited in the
\n\tGovernment.  It is under these circumstances, the present appeals
\n\tbefore this Court by the concerned accused.\n<\/p>\n
It
\n\tmay be recorded that since A-5 had expired, but as the order of
\n\tconfiscation and forfeiture of cash amount and FDRs of Kissan Vikas
\n\tPatra, etc., was passed wife of A-5 claiming to be aggrieved by the
\n\tsaid part of the judgement and order of the learned Special Judge
\n\thas preferred the
\n\tappeal being Criminal Appeal No.1269 of 2008.  It may also be
\n\trecorded that A-1 has preferred Criminal Appeal No.1826 of 2008, A-2
\n\thas preferred Criminal Appeal No.1398 of 2008, A-3 has preferred
\n\tCriminal Appeal No.1726 of 2008, A-4 has preferred Criminal Appeal
\n\tNo.1779 of 2008, A-6 has preferred Criminal Appeal No.2550 of 2008,
\n\tall against the judgement and order of conviction, qua concerned
\n\taccused\/appellant in the respective appeal.\n<\/p>\n
We
\n\thave heard Mr.Popat, learned Counsel appearing for the appellant
\n\twife of A-5 (Expired), Mr.D.A. Chaudhari, learned Counsel for the
\n\tappellant   accused No.1,  Mr.B.B. Naik, learned Counsel for the
\n\tappellant   accused No.2, Mr.Dagli, learned Counsel for the
\n\tappellant   accused No.3, Mr.Pratik Barot, learned
\n\tCounsel for the appellant   accused No.4, Mr.Shethna, learned
\n\tCounsel for the appellant   accused No.6, Mr.Hriday Buch, learned
\n\tStanding Counsel for the original complainant   NCB in all the
\n\tappeals and Mr.K.P. Raval, learned APP for the State of Gujarat in
\n\tall the appeals.\n<\/p>\n
\tWe
\n\thave considered the records and proceedings of the Trial Court.  We
\n\thave considered the judgement and order and the reasons recorded by
\n\tthe learned Special Judge.\n<\/p>\n
\tWe
\n\tmay state that henceforth party to the proceedings for the sake of
\n\tconvenience shall be referred to as accused in trial Court.  It
\n\tappears that it would be necessary to consider the contention on the
\n\tpoint of law raised by the learned Counsel for the respective
\n\tparties\/accused.  In order to deal with the contentions raised on
\n\tbehalf of the respective parties\/accused separately, it would also
\n\tbe required for the Court to narrate the contentions raised for that
\n\tparticular accused and the examination thereof by the Court.  Apart
\n\tfrom the above, there are common contentions raised by the learned
\n\tCounsel appearing for all the accused, which may also be required to
\n\tbe taken into consideration.\n<\/p>\n
\tThe
\n\tevidence as came on record, if the statements of the concerned
\n\taccused under Section 67 of the Act are considered in light of the
\n\tsubstance found of narcotic and the trafficking thereof by all the
\n\taccused step by step goes to show the involvement of the accused in
\n\tthe conspiracy of drug trafficking, so as to attract the provisions
\n\tof N.D.P.S. Act constituting the alleged offences.  But the common
\n\tcontentions raised may first be taken into consideration.\n<\/p>\n
\tCOMMON
\n\tCONTENTIONS :\n<\/p>\n
It
\n\twas contended by the learned Counsel appearing for all the accused
\n\tthat the mandatory procedure as provided under Sections 41 and 42 of
\n\tNDPS Act (hereinafter referred to as the ‘Act’) have not been
\n\tfollowed by NCB Officers, therefore,
\n\tthe whole case of the prosecution may fall to ground.  Mr.Naik,
\n\tlearned Counsel appearing for A-2 contended that the procedure as
\n\twas required to be followed was under Section 41(2) OF THE Act,
\n\twhereas the learned Counsel appearing for the other accused
\n\tcontended that the
\n\tprocedure as required was under Section 42 of the Act, which has not
\n\tbeen followed.\n<\/p>\n
\tIt
\n\twas the submission of the learned Counsel, Mr.Buch that as such
\n\tSection 43 of the Act would apply, since the search and
\n\tseizure of the truck and the car was at a public place and on a
\n\tpublic road, but he alternatively contended that even if this Court
\n\tis to find that the procedure under Section 42 of the Act was
\n\trequired to be followed, then also such procedure has been followed
\n\tin the present case. It was submitted that even if this Court is to
\n\tfind that the procedure under Section 41(2) of the Act was required
\n\tto be followed, then also the said procedure has been followed.
\n\tTherefore, it was contended that there is no lapse of any mandatory
\n\tprocedure while undertaking search and seizure or the authorization
\n\tor any warrant, therefore, the contention raised on behalf of the
\n\taccused does not deserve to be accepted.\n<\/p>\n
\tIn
\n\torder to appreciate the contention, it would be necessary to refer
\n\tto the provisions of Sections 41, 42, and 43 of the Act.\n<\/p>\n
Power
\n\tto issue warrant and authorisation. (1) A Metropolitan Magistrate or
\n\ta Magistrate of the first class or any Magistrate of the second
\n\tclass specially empowered by the State Government in this behalf,
\n\tmay issue a warrant for the arrest of any person whom he has reason
\n\tto believe to have committed any offence punishable under Chapter
\n\tIV, or for the search, whether by day or by night, of any building,
\n\tconveyance or place in which he has reason to believe any narcotic
\n\tdrug or psychotropic substance in respect of which an offence
\n\tpunishable under Chapter IV has been committed or any document or
\n\tother article which may furnish evidence of the commission of such
\n\toffence is kept or concealed.\n<\/p>\n
Any
\n\tsuch officer of gazetted rank of the departments of central excise,
\n\tnarcotics, customs, revenue intelligence or any other department of
\n\tthe Central Government or of the Border Security Force as is
\n\tempowered in this behalf by general or special order by the Central
\n\tGovernment, or any such officer of the revenue, drugs control,
\n\texcise, police or any other department of a State Government as is
\n\tempowered in this behalf by general or special order of the State
\n\tGovernment, if he has reason to believe from personal knowledge or
\n\tinformation given by any person and taken in writing that any person
\n\thas committed an offence punishable under Chapter IV or that any
\n\tnarcotic drug, or psychotropic substance in respect of which any
\n\toffence punishable under Chapter IV has been committed or any
\n\tdocument or other article which may furnish evidence of the
\n\tcommission of such offence has been kept or concealed in any
\n\tbuilding, conveyance or place, may authorise any officer subordinate
\n\tto him but superior in rank to a peon, sepoy, or a constable, to
\n\tarrest such a person or search a building, conveyance or place
\n\twhether by day or by nigh or himself arrest a person or search a
\n\tbuilding, conveyance or place.\n<\/p>\n
The
\n\tofficer to whom a warrant under sub-section (1) is addressed and the
\n\tofficer who authorised the arrest or search or the officer who is so
\n\tauthorised under sub-section (2) shall have all the powers of an
\n\tofficer acting under section 42.\n<\/p>\n
42.
\n\tPower of entry, search, seizure and arrest without warrant or
\n\tauthorisation. (1) Any such officer (being an officer superior in
\n\trank to a peon, sepoy or constable) of the departments of central
\n\texcise, narcotics, customs, revenue intelligence or any other
\n\tdepartment of the Central Government or of the Border Security Force
\n\tas is embowered in this behalf by general or special order by the
\n\tCentral Government, or any such officer (being an officer superior
\n\tin rank to a peon, sepoy or constable) of the revenue, drugs
\n\tcontrol, excise, police or any other department of a State
\n\tGovernment as is empowered in this behalf by general or special
\n\torder of the State Government, if he has reason to believe from
\n\tpersonal knowledge or information given by any person and taken down
\n\tin writing, that any narcotic drug, or psychotropic substance, in
\n\trespect of which an offence punishable under Chapter IV has been
\n\tcommitted or any document or other article which may furnish
\n\tevidence of the commission of such offence is kept or concealed in
\n\tany building, conveyance or enclosed place, may, between sunrise and
\n\tsunset,-(a) enter into and search any such building, conveyance or
\n\tplace; (b) in case of resistance, break open any door and remove any
\n\tobstacle to such entry; (c) seize such drug or substance and all
\n\tmaterials used in the manufacture thereof and any other article and
\n\tany animal or conveyance which he has reason to believe to be liable
\n\tto confiscation under this Act and any document or other article
\n\twhich he has reason to believe may furnish evidence of the
\n\tcommission of any offence punishable under Chapter IV relating to
\n\tsuch drug or substance: Provided that if such officer has reason to
\n\tbelieve that a search warrant or authorisation cannot be obtained
\n\twithout affording opportunity for the concealment of evidence or
\n\tfacility for the escape of an offender, he may enter and search such
\n\tbuilding, conveyance or enclosed place at any time between sunset
\n\tand sunrise after recording the grounds of his belief. (2) Where an
\n\tofficer takes down any information in writing under sub-section (1)
\n\tor records grounds for his belief under the proviso thereto, he
\n\tshall forthwith send a copy thereof to his immediate official
\n\tsuperior.\n<\/p>\n
43.
\n\tPower of seizure and arrest in public places. Any officer of any of
\n\tthe departments mentioned in section 42 may–\n<\/p>\n
(a)
\n\tseize, in any public place or in transit, any narcotic drug or
\n\tpsychotropic substance in respect of which he has reason to believe
\n\tan offence punishable under Chapter IV has been committed, and,
\n\talong with such drug or substance, any animal or conveyance or
\n\tarticle liable to confiscation under this Act, and any document or
\n\tother article which he has reason to believe may furnish evidence of
\n\tthe commission of an offence punishable under Chapter IV relating to
\n\tsuch drug or substance; (b) detain and search any person whom he has
\n\treason to believe to have committed an offence punishable under
\n\tChapter IV, and, if such person has any narcotic drug or
\n\tpsychotropic substance in his possession and such possession appears
\n\tto him to be unlawful, arrest him and any other person in his
\n\tcompany. Explanation.–For the
\n\tpurposes of this section, the expression “public place”
\n\tincludes any public conveyance, hotel, shop, or other place intended
\n\tfor use by, or accessible to the public.\n<\/p>\n
The
\n\tConstitution Bench of the Apex Court in the case of State of
\n\tPunjab v. Baldev Singh,<\/a> reported in (1999) 6 SCC, 172 had an
\n\toccasion to interpret the provisions of Sections 41 and  42 of the
\n\tAct and it was observed, thus, at paragraphs 8 to 10 as under:-\n<\/p>\n
 8.\tSection\t41
\n of\tthe  NDPS   Act provides   that   a Metropolitan  Magistrate or a
\nMagistrate of the first  class or any Magistrate of the second class
\nspecially empowered by the State Government in this behalf, may issue
\na warrant for the  arrest  of\t and for search of any person  whom
\nhe\t has reason\tto believe to have committed any offence  punishable
\nunder  Chapter IV. Vide sub-Section (2) the power has also been
\nvested  in  Gazetted  Officers of\tthe  Department  of Central
\nExcise, Narcotics, Customs, Revenue Intelligence or any  other
\nDepartment of the Central Government or of Border Security  Force,
\nempowered  in that behalf  by\tgeneral  or special\t order of the State
\nGovt.  to arrest any person, who he  has\t reason\t to  believe to have
\n committed\t an  offence punishable  under  Chapter  IV or to search
\nany  person  or conveyance  or vessel or building etc.\twith a view to
\nseize any  contraband\t or  document  or other\tarticle which may
\nfurnish\t evidence  of  the commission of  such\tan offence, concealed
\nin such building or conveyance or vessel or place.\n<\/p>\n
9.\tSub-section
\n(1) of Section 42 lays down that the  empowered officer,  if has a
\nprior information given by any person, he should necessarily take it
\ndown in writing and where he has reason\tto believe from his personal
\nknowledge that offences under Chapter IV have been committed or that
\nmaterials which may  furnish  evidence\tof commission of such
\noffences\t are concealed  in any building etc.\t he may carry out the
\narrest or search, without a warrant between sunrise and sunset, and
\nhe may do so without recording his reasons of belief.\n<\/p>\n
10.\tThe
\n proviso to sub-section (1) lays down that if\t the empowered  officer
\n has\t reason to believe  that  a  search warrant\tor authorisation
\ncannot   be  obtained   without affording  opportunity\tfor the
\nconcealment of evidence or facility  for  the escape of an offender,
\nhe may  enter\t and search\tsuch building, conveyance or enclosed
\nplace, at\tany<\/p>\n
time
\n\tbetween sunset and sunrise, after recording the grounds of  his
\n\tbelief.   Vide sub-section (2) of Section  42,\t the empowered
\n\tofficer who takes down information in writing or records\t the
\n\tgrounds  of his belief under the\t proviso  to sub-section  (1),
\n\tshall forthwith send a copy of the same to his immediate official
\n\tsuperior.  Section 43 deals with the power  of  seizure  and arrest
\n\tof the suspect  in  a  public place.\t The  material difference
\n\tbetween the provisions  of Section\t 43  and  Section  42 is
\n\tthat\twhereas\t Section  42 requires recording of reasons for belief
\n\tand for taking down of  information\t received  in  writing with
\n\tregard  to\t the commission  of an  offence  before  conducting
\n\tsearch\t and seizure,  Section 43 does not contain any such provision
\n\tand as  such  while\t acting\t under Section 43 of  the  Act,\t the
\n\tempowered  officer  has the power of seizure of the  article etc.
\n\tand  arrest  of\ta  person who  is  found  to  be  in possession  of
\n\tany Narcotic Drug or Psychotropic  Substances in a public place
\n\twhere such possession appears to him to be unlawful.\n<\/p>\n
Further,
\n\tthe question again came up for consideration before the Apex
\n\tCourt for the interpretation and compliance of the provisions of
\n\tSection 42 in the case of Kernail Singh Vs. State of Haryana,
\n\treported in (2009) 8 SCC, 539, wherein the Apex Court, after
\n\tconsidering the subsequent decision in the case of Sajan Abraham
\n\tVs. State of Kerala, reported in (2001) 6 SCC, 692 as well as
\n\tthe decision in the case of Abdul Ibrahim Mansoori Vs. State of
\n\tGujarat, reported in 2000(2) SCC, 513 recorded the conclusion
\n\tfor the interpretation of Section 42 at paragraph 35, which reads as
\n\tunder :-\n<\/p>\n
 35.
\nIn conclusion, what is to be noticed is Abdul Rashid did not require
\nliteral compliance with there requirements of Sections 42(1) and
\n42(2) nor did Sajan Abraham hold that the requirements ofSection
\n42(1) and 42(2) need not be fulfilled at all. The effect of the two
\ndecisions was as follows :\n<\/p>\n
(a)
\n   The officer on receiving the information (of the nature referred
\nto in Sub-section (1) of section 42) from any person had to record it
\nin writing in the concerned Register and forthwith send a copy to his
\nimmediate official superior, before proceeding to take action in
\nterms of clauses (a) to (d) of section 42(1).\n<\/p>\n
(b)
\n   But if the information was received when the officer was not in
\nthe police station, but while he was on the move either on patrol
\nduty or otherwise, either by mobile phone, or other means, and the
\ninformation calls for immediate action and any delay would have
\nresulted in the goods or evidence being removed or destroyed, it
\nwould not be feasible or practical to take down in writing the
\ninformation given to him, in such a situation, he could take action
\nas per clauses (a) to (d) of section 42(1) and thereafter, as soon as
\nit is practical, record the information in writing and forthwith
\ninform the same to the official superior .\n<\/p>\n
(c)
\n   In other words, the compliance with the requirements of Sections
\n42 (1) and 42(2) in regard to writing down the information received
\nand sending a copy thereof to the superior officer, should normally
\nprecede the entry, search and seizure by the officer. But in special
\ncircumstances involving emergent situations, the recording of the
\ninformation in writing and sending a copy thereof to the official
\nsuperior may get postponed by a reasonable period, that is after the
\nsearch, entry and seizure. The question is one of urgency and
\nexpediency.\n<\/p>\n
(d)
\n   While total non-compliance of requirements of sub-sections (1) and
\n(2) of section 42 is impermissible, delayed compliance with
\nsatisfactory explanation about the delay will be acceptable
\ncompliance of section 42. To illustrate, if any delay may result in
\nthe accused escaping or the goods or evidence being destroyed or
\nremoved, not recording in writing the information received, before
\ninitiating action, or non-sending a copy of such information to the
\nofficial superior forthwith, may not be treated as violation of
\nsection 42. But if the information was received when the police
\nofficer was in the police station with sufficient time to take
\naction, and if the police officer fails to record in writing the
\ninformation received, or fails to send a copy thereof, to the
\nofficial superior, then it will be a suspicious circumstance being a
\nclear violation of section 42 of the Act. Similarly, where the police
\nofficer does not record the information at all, and does not inform
\nthe official superior at all, then also it will be a clear violation
\nof section 42 of the Act. Whether there is adequate or substantial
\ncompliance with section 42 or not is a question of fact to be decided
\nin each case. The above position got strengthened with the amendment
\nto section 42 by Act 9 of 2001.\n<\/p>\n
\tThe
\n\tpertinent aspect is that the Apex Court did observe for misuse of
\n\tthe provisions by wrong doers as a major ground of acquittal and
\n\tsuch observations can be traced at paragraph 32 of the said
\n\tdecision, which reads as under :-\n<\/p>\n
\t 32.\tUnder
\n\tSection 42(2) as it stood prior to amendment such empowered officer
\n\twho takes down any information in writing or records the grounds
\n\tunder proviso to Section 42(1) should forthwith send a copy thereof
\n\tto his immediate official superior. If there is total non-compliance
\n\tof this provision the same would adversely affect the prosecution
\n\tcase and to that extent it is mandatory. But if there is delay
\n\twhether it was undue or whether the same has been explained or not,
\n\twill be a question of fact in each case, it is to be concluded that
\n\tthe mandatory enforcement of the provisions of Section 42 of the Act
\n\tnon-compliance of which may vitiate a trial has been restricted only
\n\tto the provision of sending a copy of the information written down
\n\tby the empowered officer to immediate official superior and not to
\n\tany other condition of the Section.\n<\/p>\n
\tIf
\n\tthe provisions of Sections 41, 42 and 43 of the Act are considered,
\n\tin light of the aforesaid two decisions of the Apex Court, it does
\n\tappear that the intention of the legislature by Sections 41 and 42
\n\tof the Act is different than that of Section 43 of the Act as
\n\tevident from the language, which authorizes any officer or the
\n\tdepartment mentioned in Section 42 for search, seizure, arrest and
\n\tdetention in any public place or in transit in respect of any
\n\tnarcotic drug or psychotropic substance in respect of which he has
\n\treason to believe an offence punishable under Chapter IV has been
\n\tcommitted or along with such drug or substance in any animal or
\n\tconveyance or article is liable to be confiscated under the Act or
\n\tany document or any other article, which he has reason to believe
\n\tmay furnish evidence of commission of offence punishable under
\n\tChapter IV relating to such drug or substance.\n<\/p>\n
\tSection
\n\t42 speaks about the search and seizure from any other place,
\n\tconveyance or enclosed place, while Section 43 speaks about the
\n\tsearch and seizure from public place or in transit. The wording of
\n\tSections 41 and 42 with regard to the information taken in writing
\n\thas been deliberately omitted by the legislature in Section 43.
\n\tWhen any search or seizure is to be made in any public place or in a
\n\tvehicle in transit or any person to be arrested or detained from the
\n\tpublic place, it is not intended by the legislature to take down the
\n\tsaid information in writing.\n<\/p>\n
\tThe
\n\texamination of the contention, in light of the facts of the present
\n\tcase goes to show that the search and seizure is made at a public
\n\troad on National Highway.  Therefore, if the contention is to be
\n\tconsidered, keeping in view the facts of the present case, it can be
\n\tsaid that Section 43 would apply and not Section 42 or Section 41 as
\n\tsought to be canvassed and contended by the learned Counsel
\n\tappearing for the appellants.  If the requirement of Section 43 of
\n\tthe Act was to be complied with, the appellants would have hardly
\n\tany valid reason to contend non-compliance to any statutory
\n\tprovisions and the reason being that the search and seizure had
\n\ttaken place on the public place, therefore, as such the contention
\n\traised on behalf of the learned Counsel for the appellants on the
\n\tpremise that the requisite procedure as per Section 41 or Section 42
\n\twas not followed would have no legs to stand.\n<\/p>\n
\tApart
\n\tfrom the above, even if such contention is considered for the sake
\n\tof examination so far as search and seizure of the conveyance and
\n\tnarcotic substance is concerned, as per the evidence on record of
\n\tShri Umesh Pathak (PW-4) (Ex. 114) read with the evidence of Shri
\n\tPavansing Gajesing Tomar, Zonal Director (PW-7) (Ex. 197), gist of
\n\tthe information in writing by way of compliance of the provisions of
\n\tSection 42(2) of the Act was given to the Superior Officer and the
\n\tsame was reduced into writing by Shri Pathak and such information
\n\twas received by Shri Pavansing Gajesing Tomar (PW-7), Superior
\n\tOfficer and the same was confirmed in the deposition of Shri Tomar.
\n\tTherefore, it is not possible to agree with the contention that
\n\tthere was any breach of the procedure required to be followed under
\n\tSection 42 of the Act.\n<\/p>\n
\tThe
\n\tcontention that the procedure as required under Section 41(2) of the
\n\tAct has not been followed appears to be misconceived.  Even if such
\n\tcontention is considered for the sake of examination, it does appear
\n\tfrom the deposition of Shri Pavansing Tomar (PW-7) (Ex. 197) that
\n\tafter he received information in writing from Shri Umesh Pathak
\n\t(PW-4) (Ex. 114), Shri Shailendra Lodha (PW-1) (Ex. 29) was also
\n\tcalled, the matter was discussed and thereafter it was decided by
\n\tall of them to proceed for further search.  Therefore, it is not
\n\tpossible to agree with the contention of the learned Counsel for A-2
\n\tthat since the reasons to believe for commission of offence or the
\n\tauthorization has not come by contemporaneous  record there is
\n\tbreach of provisions of Section 41(2) of the Act.  If the compliance
\n\tto the said provisions is to be considered in light of the above
\n\treferred decision of the Apex Court in he case of Karnail Singh
\n\t(supra), more particularly the observations made at paragraph
\n\t312 it cannot be said that there was any total non-compliance to the
\n\trequirement of the provisions of Section 41(2) of the Act.\n<\/p>\n
\tIn
\n\tview of the above, the said contentions raised on behalf of all the
\n\tappellants deserve to be rejected.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel appearing for he
\n\tappellants that the recording of the statements under Section 67 of
\n\tthe Act should not be accepted in evidence, nor be relied upon by
\n\tthis Court in tracing the guilt of the accused concerned.  It was
\n\tsubmitted that the statements recorded were under duress and mental
\n\tand physical torture, therefore, it cannot be termed as voluntary.
\n\tIt was submitted that though formal arrest was not effected at the
\n\ttime when the statements were recorded under Section 67 of the Act,
\n\tof the concerned accused at the relevant point of time, but if
\n\tconsidered in light of the immediate arrest thereafter, it would
\n\tshow that such statements were not voluntary.  It was also contended
\n\tby the learned Counsel for the appellants that a holistic approach
\n\tis required to be made by the Court while considering the alleged
\n\tstatements recorded under Section 67 of the Act of the concerned
\n\taccused.  It was submitted that if the statements recorded under
\n\tSection 67 of the Act are excluded from the evidence led on behalf
\n\tof the prosecution, the substratum of prosecution case would be lost
\n\tand the accused would be entitled for the benefits thereof.\n<\/p>\n
\tSection
\n\t67 of the Act for ready reference can be extracted as under :-\n<\/p>\n
 67.
\n\tPower to call for information, etc.- Any officer referred to in
\n\tsection 42 who is authorised in this behalf by the Central
\n\tGovernment or a State Government may, during the course of any
\n\tenquiry in connection with the contravention of any provision of
\n\tthis Act,–\n<\/p>\n
(a)
\n\tcall for information from any person for the purpose of satisfying
\n\thimself whether there has been any contravention of the provisions
\n\tof this Act or any rule or order made thereunder;\n<\/p>\n
(b)
\n\trequire any person to produce or deliver any document or thing
\n\tuseful or relevant to the enquiry;\n<\/p>\n
\t(c)
\n\texamine any person acquainted with the facts and circumstances of
\n\tthe case.\n<\/p>\n
\tThe
\n\tApex Court in the case of Kanhaiyalal v. Union of India, reported
\n\tin (2008) 4 SCC, 668, had an occasion to consider the question
\n\ton admissibility of the statements recorded under Section 67 of
\n\tN.T.P.S. Act.  It was observed, inter alia, at paragraphs 41 to 45
\n\tas under :-\n<\/p>\n
41.
\n\tA parallel may be drawn between the provisions of Section 67 of the
\n\tNDPS Act and Sections 107 and  108 of the Customs Act and to a large
\n\textent  Section 32 of the Prevention  of Terrorism Act, 2002  and
\n\tSection 15 of the Terrorist and Disruptive  Activities (Prevention)
\n\tAct, 1987.  These are all special Acts meant to deal with   special
\n\tsituations and circumstances. While the provisions of the
\n\tPrevention of Terrorism Act, 2002, and TADA Act,  1987, are much
\n\tmore stringent  and excludes from its  purview the provisions of
\n\tSections 24 to 27 of the  Evidence Act with regard to confession
\n\tmade before a  police officer, the provisions relating to
\n\tstatements made during inquiry under the Customs Act  and under the
\n\tNDPS Act are less stringent and continues to attract the provisions
\n\tof the Evidence  Act. In the case of both the latter enactments,
\n\tinitially an inquiry is contemplated  during which a  person may be
\n\tcalled upon to provide any information  relevant to the inquiry as
\n\tto whether there has been  any contravention of the provisions of
\n\tthe Act or  any Rule or Order made thereunder.  At that stage  the
\n\tperson concerned is not an accused although he  may be said to be in
\n\tcustody. But on the basis of  the statements made by him he could be
\n\tmade an  accused subsequently. What is important is whether  the
\n\tstatement made by the person concerned  is made during inquiry prior
\n\tto his arrest or after he had  been formally charged with the
\n\toffence and made an  accused in respect thereof. As long as such
\n\tstatement was made by the accused at a time when he  was not under
\n\tarrest, the bar under Sections 24 to  27 of the Evidence Act would
\n\tnot operate nor would  the provisions of Article 20(3) of the
\n\tConstitution  be attracted. It is only after a person is placed in
\n\tthe position of an accused that the bar imposed under the aforesaid
\n\tprovision will come into play.\n<\/p>\n
42.\tOf
\n\tcourse, this Court has also held in Pon Adithan case (supra) that
\n\teven if a person is placed under  arrest and thereafter makes a
\n\tstatement which seeks  to incriminate him, the bar under Article
\n\t20(3) of  the Constitution would not operate against him if  such
\n\tstatement was given voluntarily and without any  threat or
\n\tcompulsion and if supported by  corroborating evidence.\n<\/p>\n
43.\tThe
\n\tlaw involved in deciding this appeal has  been considered by this
\n\tCourt from as far back as in  1963 in Pyare Lal Bhargava#s case
\n\t(supra). The  consistent view which has been taken with regard to
\n\tconfessions made under provisions of Section 67 of  the NDPS Act and
\n\tother criminal enactments, such as  the Customs Act, 1962, has been
\n\tthat such statements  may be treated as confessions for the purpose
\n\tof Section 27 of the Evidence Act, but with the caution  that the
\n\tCourt should satisfy itself that such statements had been made
\n\tvoluntarily and at a time  when the person making such statement had
\n\tnot been  made an accused in connection with the alleged  offence.\n<\/p>\n
44.\tIn
\n\taddition to the above, in the case of Raj Kumar Karwal v. Union of
\n\tIndia and others (1990) 2 SCC 409, this Court held that officers of
\n\tthe Department of Revenue Intelligence who have been vested with
\n\tpowers of an Officer-in-Charge of a police station under Section 53
\n\tof the NDPS Act, 1985, are not #police officers#  within the meaning
\n\tof Section 25 of the Evidence Act.  Therefore, a confessional
\n\tstatement recorded by such officer in the course of investigation of
\n\ta person accused of an offence under the Act is admissible in
\n\tevidence against him. It was also held that power conferred on
\n\tofficers under the NDPS Act in relation to arrest, search and
\n\tseizure were similar to powers vested on officers under the Customs
\n\tAct. Nothing new has been submitted which can persuade us to take a
\n\tdifferent view.\n<\/p>\n
\t45.\tConsidering
\n\tthe provisions of Section 67 of the  N.D.P.S. Act and the views
\n\texpressed by this Court  in Raj Kumar Karwal#s case (supra), with
\n\twhich we  agree, that an officer vested with the powers of an
\n\tOfficer-in-Charge of a Police Station under Section  53 of the above
\n\tAct is not a #Police Officer# within the meaning of Section 25 of
\n\tthe Evidence Act, it is clear that a statement made under Section 67
\n\tof the N.D.P.S. Act is not the same as a statement made under
\n\tSection 161 of the Code, unless made under threat or coercion.  It
\n\tis this vital difference, which allows a statement made under
\n\tSection 67 of the N.D.P.S. Act to be used as a confession against
\n\tthe person making it and excludes it from the operation of Sections
\n\t24 to 27 of the Evidence Act.\n<\/p>\n
\tIt
\n\tis an admitted position that the Officers of NCB in the present case
\n\thave recorded the statements.  They are not the Police Officers
\n\twithin the meaning of Section 25 of the Evidence Act.  Therefore,
\n\tthe statement made under Section 67 of N.D.P.S. Act is not the same
\n\tas the statements made under Section 161 of Cr.P.C., unless made
\n\tunder threat or coercion.  The statements under Section 67 of the
\n\tAct could be used as confession against the persons making it and it
\n\texcludes the application of the provisions of Sections 24 to 27 of
\n\tthe Evidence Act.\n<\/p>\n
\tTherefore,
\n\tconfessional statements made by all the accused in the present case
\n\tare admissible in evidence.\n<\/p>\n
\tThe
\n\tattempt to contend that such statements were not voluntary or were
\n\tunder any threat or compulsion, even if considered, would not result
\n\tinto discarding of the confessional statements, but in such
\n\tcircumstances the Court may consider the corroborative evidence to
\n\tsuch statements.  Be it noted that corroboration of the confessional
\n\tstatements is not a requirement under law, but is on the principles
\n\tof reasonable prudence, if the court finds that there was any
\n\tatmosphere of threat or compulsion prevailing at the time when such
\n\tstatements were recorded.  At this stage, we may also refer to the
\n\tDivision Bench decision of this Court in the case of Najmunisha,
\n\twife of Abdul Hamid Chandmiya @ Ladoo v. State of Gujarat, reported
\n\tin 2009 (3) GLR, 1982 and more particularly the observations
\n\tmade at paragraph 25 of the said judgement, the relevant part of
\n\twhich reads as under :-\n<\/p>\n
\t 25\t\t<\/span><\/p>\n
\t Now while appreciating the evidence on record, what is established
\n\tis this that,  on 10th of December, 1999, the secret
\n\tinformation was received by  PW-2 Krishnaben Vinaykumar Chaube,
\n\tIntelligence Officer,  which was communicated  in the office
\n\tincluding  Zonal Director Mr. Tomar. Mr. Tomar directed every one
\n\tto come at Income Tax  Circle in the morning  at 6 O’clock on 11th
\n\tof December, 1999. Thereafter,  on the said day i.e. on 11th
\n\tof December, 1999, they all gathered and panchas were called.  There
\n\tis some discrepancy about calling  of panchas,  but it is of no
\n\tconsequence  at all,  as we have discussed above.  What is found is
\n\ttruthful version from PW-1 Bhimsing Kanchansing Mina,  Panch,  about
\n\tthe incident,  which contains the ring of truth.  Panch has been
\n\textensively cross-examined  as afore-stated,  but nothing  is
\n\tbrought out  by the defence to disbelieve this witness.  All the
\n\tofficers  have remained  specific about   the surveillance have been
\n\tput at the cross roads near Gandhi Road on the right  side of Shapur
\n\tGate  and on the road coming from towards Kalupur  Station.  PW-4
\n\tMr. Upendra Patel   with  one   sepoy was  standing  with his
\n\tmotorbike  near Shapur Gate.  On the opposite  direction  PW-2  Mrs.
\n\tKrishna Chaube  stood with one sepoy  and the panchas   and other
\n\tIntelligence Officers and the sepois were    in the jeep of  NCB at
\n\tthe end of  Gandhi Bridge.  It is also established  beyond doubt
\n\tthat  the auto rickshaw  bearing Registration No.  GJ-9-T-2355
\n\tcoming from towards  Shahpur Darwaja was attempted to halt by PW-4
\n\tMr. Upendra Patel.  The said auto rickshaw did not  stop   and
\n\trushed ahead  consciously  that raiding party was trying to stop the
\n\trickshaw.  After  escaping  journey  of  the rickshaw  and chasing
\n\tby the raiding party, ultimately,    rickshaw was stopped near  the
\n\thouse of accused No.4  and driver  and the accused No.4  abandoned
\n\ton the rickshaw.  It is also  established beyond  doubt from the
\n\tevidence that accused No.4 was  well identified by the raiding party
\n\tthough  Mrs. Krishna Chaube  had not found   vehicle and she reached
\n\tat the spot on calling by Mr. Tomar.  It is also proved beyond
\n\tdoubt that  the members of the raiding party,   who were on
\n\tmotorbike,   on account of bike, which was drifted,   got some
\n\tinjuries.   The gesture on the part of accused No.4 and the said
\n\trikshaw driver establishes the conduct  incriminating  accused No.4.
\n\t The seizure of muddamal   to the extent of 2.200 kgs    of charas
\n\thas been proved through the evidence of  PW-1, PW-2, PW-3 and PW-4
\n\tand  nothing is suspicious  even remotely about this.  Thereafter,
\n\tit is also proved beyond doubt that the raid in the house of accused
\n\tNo.4   followed, and as stated by witnesses  PW-1, PW-2, PW-3 and
\n\tPW-4,  charas of the quantity of  2.98 kgs   was found and seized
\n\tfrom the possession of  accused No.1.  The  contradiction as to from
\n\twhere   the rickshaw came in the evidence of  panch witness is of no
\n\tconsequence as ultimately  it has been established with voluminous
\n\tevidence that rickshaw  was abandoned  near the house of accused
\n\tNo.4.  Preliminary  testing  of  the bulk of  charas found was done
\n\tand it was ascertained  that substance was charas.   The  way in
\n\twhich   the incident has occurred and the story proceeds  give
\n\tcredence to the prosecution case as had the case been cooked up
\n\tagainst the accused, the Officers might have gone straightway   to
\n\tthe house of accused No.4  and  might have seized the charas.  All
\n\tthe mandatory provisions of the NDPS Act are proved to have been
\n\tcomplied with. All the witnesses are consistent  about the chasing
\n\tof the rickshaw  and the finding of  muddamal of charas. All the
\n\twitnesses are also consistent and credit-worthy  as to the presence
\n\tof accused No.1  at the house when the house was searched, who had
\n\tidentified herself as the wife of   Abdul Hamid Chandmiya. It has
\n\tbeen proved beyond doubt that she had been offered  the search of
\n\tofficers present and that of the panch.  She was also informed that
\n\tif she desired, she could be  searched in  presence of Executive
\n\tMagistrate or the Gazetted Officer.  Behind a tin container in the
\n\thouse, which was in control of accused No.1, from a jute plastic
\n\tbag, meant for cement, contained bulk of charas, which was found
\n\tand, hence,  examining the case from all angles, it is found that,
\n\tthere is not a single  pin point loophole   to come to the
\n\tconclusion that the present appellants  were involved  in a false
\n\tcase and that the officers  of NCB, including   PW-1 Panch Bhimsing
\n\tKanchansing Mina,  had some enmity or  grudge  against this accused
\n\tto plant this bulk of charas  in rickshaw and  house to involve
\n\tthem falsely.\n<\/p>\n
\tIt
\n\tis to be observed that when an officer records statements under
\n\tSection 67 of the Act, in exercise of his official duty, the
\n\tpresumption would be under Section 114 of the Evidence Act, at least
\n\tto the extent that a judicial access has been regularly performed
\n\tand, therefore, no Courts should support to appreciate the evidence
\n\twith presumption that such statements must have been elicited by
\n\tgiving threats or inducement to the persons concerned, unless these
\n\tcategoric circumstances are proved from the evidence against
\n\tpresumption.  It was futher observed in the very paragraph that
\n\t when the statement under Section 67 of N.D.P.S. Act is recorded
\n\tit becomes very important piece of evidence and if it is found from
\n\tthe scrutiny that the statement is voluntary, it is a formidable
\n\tevidence against the accused.  It must be noted that when the matter
\n\tis looked upon from other angle, one more presumption should be
\n\traised that each person, whether he or she is accused or not, is
\n\tbound to give true version of fact in issue when they are summoned
\n\tby the authorities to state, so as empowered by the law.  It is the
\n\tduty implicitly cast upon the person called upon to give information
\n\tto the officers that whatever they say is true.\n<\/p>\n
\tThe
\n\tlearned Counsel for the appellants did rely upon certain
\n\tobservations of the Apex Court in the case of Union of India v.
\n\tBal Mukund and Ors., reported in (2009) 12 SCC, 161 for
\n\tcontending that the holistic approach is required to be made by the
\n\tCourt when the conviction is solely based on his confession as made
\n\tby he learned trial Judge in the present case.\n<\/p>\n
\tThe
\n\tpertinent aspect is that the Apex Court, in the said decision, has
\n\tnot taken any different view than as was expressed by it in the case
\n\tof Kanhaiyalal v. Union of India (Supra).  The another aspect
\n\tis that the Apex Court, in that case, was considering the matter
\n\tagainst the judgement of acquittal delivered by the High Court,
\n\twherein the consideration and yardstick would be different than that
\n\tof hearing the appeal against the order of conviction.  The Apex
\n\tCourt in the said decision further had recorded at paragraph 16 that
\n\tno explanation was offered as to why mandatory requirement for
\n\tcompliance to the provisions of Section 42 was not made.  The Apex
\n\tCourt had further found that if the accused there were interrogated
\n\twhile in custody, it cannot be said that there was any voluntary
\n\tstatements made.  It is in this light of the fact situation the
\n\tobservations made by he Apex Court are required to be considered.\n<\/p>\n
\tIf
\n\tthe facts of the present case are examined, as observed earlier, it
\n\tis undisputed position that the confessional statements are recorded
\n\tunder Section 67 of the Act and such are admissible in evidence.
\n\tFurther the presumption as such would be for considering such
\n\tstatements as valid as having been recorded in the official capacity
\n\tby the officers of NCB.  It is also an admitted position that prior
\n\tto the arrest the statements have been recorded.  No evidence has
\n\tcome on record to show that the statements were recorded under
\n\tthreat or duress or that they were not voluntary.  The application
\n\tfor retraction of the confessions made by the accused is not proved
\n\tduring the trial, so as to dilute the evidentiary value of the
\n\tconfessional statements.  The another aspect is that in the evidence
\n\tof the witnesses examined namely Shailendra Lodha (PW-1) (Ex.29),
\n\twho recorded the statement of A-1 at Ex.34, A-2 at Ex.35, A-3 at
\n\tEx.36, A-4 at Ex.37 and the further statement of A-1 at Ex. 39, the
\n\tfuther statement of A-2 at Ex.40, the further statement of A-3 at
\n\tEx.41, the further statement of A-4 at Ex.42 and the additional
\n\tstatement of A-1 at Ex.57, no evidence has come on record to show
\n\tfrom their testimony that any threat or coercion existed at the time
\n\twhen such statements were recorded.  In the same manner, in the
\n\tdeposition of Shri Umesh Pathak (PW-4) (Ex. 114), in the statements
\n\trecorded of A-5  (Ex.123 and 124) and in the statements recorded of
\n\tthe wife of A-5 (Ex.126) and in the statements recorded of A-6
\n\t(Ex.131), it has not come out that there was any threat or coercion
\n\tapplied by the said officer for extracting or compelling A-5 or the
\n\twife of A-5 or A-6 to record such statements.  Under these
\n\tcircumstances, in absence of any material and reliable evidence, it
\n\tis not possible for this Court to accept the contention that the
\n\tstatement recorded under Section 67 of the accused or the wife of
\n\tA-5 cannot be considered in evidence for tracing the guilt of the
\n\tconcerned accused.\n<\/p>\n
\tApart
\n\tfrom the above, even if the corroboration is to be traced in light
\n\tof the confession made by A-1, the Charas is found from the
\n\tconscious possession of A-1 and A-2 as well as from A-5. The same is
\n\tcoupled with the evidence came on record for the talk over the
\n\ttelephone between the accused, the panchnamas of seizure of the
\n\tpsychotropic substance, FSL report confirming the same as narcotic
\n\tsubstance and the other evidences connected therewith including the
\n\tuse of vehicles, and the money realized by the concerned accused and
\n\tthe amount found from A-5 including the investment made by him.
\n\tTherefore, it is not a case where there is absolutely no
\n\tcorroboration to the confessional statements, but it does appear
\n\tthat the statement recorded under Section 67 of the Act are
\n\tcorroborated by the other material and reliable evidence led by the
\n\tprosecution.\n<\/p>\n
\tIn
\n\tview of the above, the contention raised by the learned Counsel for
\n\tthe accused-appellants for excluding the confessional statements
\n\tfrom the evidence led by the prosecution fails.\n<\/p>\n
\tMuch
\n\tgrievance was raised by the learned Counsel appearing for the
\n\tconcerned accused   A-1 and A-2, by  contending that the vehicle
\n\twas at Surat and the bill was also sanctioned for such purpose.  It
\n\twas, therefore, submitted that the case of the prosecution that the
\n\tvehicle was used for search and seizure at Narol could be said as
\n\tfalsified of its own record and, therefore, the accused would be
\n\tentitled to the benefits thereof.\n<\/p>\n
\tThe
\n\texamination of the aforesaid contention shows that in the log book
\n\tEx.67 on 29.9.2001, there is already an entry for use of the vehicle
\n\tto Aslali (the place at which the raid was carried out) and back.
\n\tTherefore, the said evidence is supporting the case of the
\n\tprosecution.  However, the alleged petrol bill of Surat is also
\n\tdated 29.9.2001, which has come on record at Ex.70.  If the same is
\n\tconsidered in light of the deposition of the concerned witness
\n\tShri Pavansing G. Tomar (PW-7) (Ex. 197), he did submit admit the
\n\tsanctioning of the bill, but he has stated that the same is by
\n\tmistake.  It deserves to be recorded that normally when the bills
\n\tare produced before the sanctioning authority for conveyance, it is
\n\trequired for the sanctioning authority to examine the same, but such
\n\ta microscopic examination for each and every bill, even if
\n\tconsidered, the witness has stated that the same is by mistake.  No
\n\tother evidence has come on record to support the defence of the
\n\taccused concerned that the vehicle, in fact, was at Surat at the
\n\ttime when the raid was carried out and not at Ahmedabad.  In any
\n\tcase, the bill does not stipulate the time at which the petrol was
\n\tpurchased and the bill was issued.  The time of the raid, even if
\n\tconsidered, in the morning hours, up to noon time, then also it is
\n\tnot an impossible situation that the vehicle could not have reached
\n\tto Surat on the same day prior to 12 O’clock night.  Therefore, the
\n\texistence of the bill or the sanction by mistake as per the
\n\tdeposition of the witness and in absence of any other reliable
\n\tmaterial evidence coming on record to show that the vehicle in fact,
\n\twas at Surat at the time when the raid was carried out, it is not
\n\tpossible to conclude that such would be fatal to the case of the
\n\tprosecution and the accused would be entitled to the benefits
\n\tthereof.  Therefore, the said contention of the learned Counsel for
\n\tthe concerned accused deserves to be rejected.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel appearing for all the
\n\tappellants   accused that there is no conspiracy proved, nor
\n\tabatement proved as per Section 29 of NDPC Act.\n<\/p>\n
It
\n\twas next contended by the learned counsel for the appellants-accused
\n\tthat there is no sufficient material available on record on the
\n\taspects of conspiracy, therefore, the conviction is based on without
\n\tsufficient material of conspiracy.  The Apex Court in the case of
\n\tState (NCT of Delhi) Vs.
\n\tNavjot Sandhu (supra)
\n\thad an occasion
\n\tto consider the said aspects and at para 97 to 101, the Apex Court
\n\tobserved thus –\n<\/p>\n
97.
\nMostly, the conspiracies are proved by the circumstantial evidence,
\nas the conspiracy
\nis seldom an open affair. Usually both the existence of the
\nconspiracy and its objects have to be inferred from the circumstances
\nand the conduct of the accused. (Per Wadhwa, J. in Nalini’s case
\n(supra) at page 516). The well known rule governing circumstantial
\nevidence is that each and every incriminating circumstance must be
\nclearly established by reliable evidence and “the circumstances
\nproved must form a chain of events from which the only irresistible
\nconclusion about the guilt of the accused can be safely drawn and no
\nother hypothesis against the guilt is possible.” G.N. Ray, J. in
\nTanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this Court
\nshould not allow the suspicion to take the place of legal proof.\n<\/p>\n
98.\tAs
\npointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC
\n665], ” in most cases it will be difficult to get direct
\nevidence of the agreement, but a conspiracy can be inferred even from
\ncircumstances giving rise to a conclusive or irresistible inference
\nof an agreement between two or more persons to commit an offence.”
\n In this context, the observations in the case Noor Mohammad Yusuf
\nMomin vs. State of Maharashtra (AIR<\/a> 1971 SC 885) are worth nothing:\n<\/p>\n
\t“[I]in
\nmost cases proof of conspiracy is \tlargely inferential though the
\ninference \tmust be founded on solid facts. Surrounding \tcircumstances
\nand antecedent and subsequent \tconduct, among other factors,
\nconstitute \trelevant material.”\n<\/p>\n
99.
\nA few bits here and a few bits there on which the prosecution relies
\ncannot be held to be adequate for connecting the accused in the
\noffence of criminal conspiracy. The circumstances before, during and
\nafter the occurrence can be proved to decide about the complicity of
\nthe accused. [vide Esher Singh vs. State of A.P., 2004 (11) SCC 585].
\n\tLord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said
\nthat the evidence from which a jury may infer a criminal conspiracy
\nis almost invariably to be found in the conduct of the parties.  In
\n(AIR 1945 PC 140), the Privy Council warned that in a joint trial
\ncare must be taken to separate the admissible evidence against each
\naccused and the judicial mind should not be allowed to be influenced
\nby evidence admissible only against others. “A co-defendant in a
\nconspiracy trial”, observed Jackson, J, “occupies an uneasy
\nseat” and <\/p>\n
“it
\nis difficult for the individual to make his own case stand on its own
\nmerits in the minds of jurors who are ready to believe that birds of
\na feather are flocked together.”\n<\/p>\n
[vide
\nAlvin Krumlewitch vs. United States of America, (93 L.Ed. 790).\n<\/p>\n
In
\nNalini’s case, Wadhwa, J pointed out, at page 517 of the SCC, the
\nneed to guard against prejudice being caused to the accused on
\naccount of the joint trial with other conspirators. The learned Judge
\nobserved that “there is always difficulty in tracing the precise
\ncontribution of <\/p>\n
each
\nmember of the conspiracy but then there has to be cogent and
\nconvincing evidence against each one of the accused charged with the
\noffence of conspiracy”. The pertinent observation of Judge Hand
\nin U.S. vs. Falcone (109 F. 2d,579) was referred to:\n<\/p>\n
“This
\ndistinction is important today when many prosecutors seek to sweep
\nwithin the dragnet of conspiracy all those who have been associated
\nin any degree  whatever with the main offenders.”\n<\/p>\n
At
\nparagraph 518, Wadhwa, J, pointed out that the criminal
\nresponsibility for a conspiracy requires more than a merely passive
\nattitude towards an existing conspiracy.  The learned Judge then set
\nout the legal position regarding the criminal liability of the
\npersons accused of the conspiracy as follows:\n<\/p>\n
“One
\nwho commits an overt act with knowledge of the conspiracy is guilty.
\nAnd one who tacitly consents to the object of a conspiracy and goes
\nalong with the other conspirators, actually standing by while the
\nothers put the conspiracy into effect, is guilty though he intends to
\ntake no active part in the crime.”\n<\/p>\n
101.
\n\tOne more principle which deserves notice is that cumulative effect
\n\tof the proved circumstances should be taken into account in
\n\tdetermining the guilt of the accused rather than adopting an
\n\tisolated approach to each of the circumstances. Of course, each one
\n\tof the circumstances should be proved beyond reasonable doubt.
\n\tLastly, in regard to the appreciation of evidence relating to
\n\tconspiracy, the Court must take care to see that the acts or conduct
\n\tof the parties must be conscious and clear enough to infer their
\n\tconcurrence as to the common design and its execution. K.J. Shetty,
\n\tJ, pointed out in Kehar Singh’s case that “the innocuous,
\n\tinnocent or inadvertent events and incidents should not enter the
\n\tjudicial verdict.”\n<\/p>\n
\tTherefore,
\n\tin light of the cumulative effect of the circumstances, if
\n\tconsidered, with the contentions and the statements recorded under
\n\tSection 67 of the Act of all the accused, the material found from
\n\tthe possession of A-1, A-2 and A-5, the cash seized, it is clear
\n\tthat there is, inter se, agreement of mind between all the accused,
\n\tnot only to deal in drug trafficking business, but they have been
\n\tdoing it since for a long time and it is on account of the said
\n\tconspiracy to continue with the drug trafficking in the Society, the
\n\tnarcotic substance was brought and was to be sold, though prohibited
\n\tunder law.  Therefore, it is not possible to accept the contention
\n\tof the learned Counsel for the accused that there was no conspiracy
\n\tor abatement as proved by the prosecution.  Therefore, the said
\n\tcontention fails.\n<\/p>\n
\tINDIVIDUAL
\n\tCONTENTIONS :-\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel appearing for A-1 that the
\n\tdefence on behalf of A-1 had examined Shri Balaji Gourju   (PW-12)
\n\t(Ex.237) for showing the presence of A-1 on duty up to 25th
\n\tSeptember, 2001.  It was, therefore, submitted that it is not
\n\tpossible for any person to reach Ahmedabad on 29th
\n\tSeptember, 2001 in the early morning, if he starts driving the truck
\n\tfrom Kashmir to Ahmedabad.  It was, therefore, submitted that if the
\n\tsaid evidence is considered, it could be said that the story of the
\n\tprosecution for involvement of A-1 is falsified and as per the
\n\tdefence A-1 is wrongly planted in the alleged offence.\n<\/p>\n
\tSection
\n\t103 of the Evidence Act relevant at this stage reads as under :-\n<\/p>\n
 103.
\n\tBurden of proof as to particular fact. – The burden of proof as to
\n\tany particular fact lies on that person who wishes the Court to
\n\tbelieve in its existence, unless it is provided by any law that the
\n\tproof of that fact shall lie on any particular person.\n<\/p>\n
\tIt
\n\tdeserve to be recorded that for proving the alibi so as to frustrate
\n\tthe case of the prosecution the burden lies upon the accused to show
\n\tthe circumstances beyond reasonable doubt. It is only after the
\n\tburden is discharged by the accused beyond reasonable doubt, the
\n\tsame can be considered together with the case of the prosecution.
\n\tSuch evidence cannot be considered so as to create doubt in the case
\n\tof the prosecution on a mere examination of any witness, but the
\n\tevidence so led has to be of a proved fact beyond reasonable doubt,
\n\twhich may frustrate the evidence led by the prosecution. The degree
\n\tof proof in case of proving the alibi would be the same as required
\n\tfor the prosecution in proving the guilt of the accused. The
\n\texamination of the facts of the present case in light of the
\n\taforesaid shows that the evidence of the witness of A-1 at the most
\n\tmay be considered for the proof of the presence recorded in the
\n\tpresence register, but no other witness has been examined to show
\n\tthat A-1 was actually present on duty and he had discharged the duty
\n\ton that day.  Further, even if it is considered for the sake of
\n\texamination that A-1 was present on duty up to 25th
\n\tSeptember, 2001, then also it has not come on record about the time
\n\tat which had started driving the vehicle.  In any case, it is not
\n\timpossible for a driver of the truck to reach Ahmedabad on 29th
\n\tSeptember, 2001, if the driving is continuous and if one
\n\tstarts after duty hours on 25th itself.  Under these
\n\tcircumstances, it is neither possible to hold that the burden of
\n\tproving the alibi was discharged as per the requirement of law by
\n\tA-1, nor the same can be said sufficient to frustrate the evidence
\n\tled by the prosecution for the presence of A-1 on 29th
\n\tMorning at the time when the raid was carried out.  Hence, the said
\n\tcontention deserves to be rejected.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel appearing for A-2 that the
\n\tevidence of Hasinabanu Gulam Muhmad Ganai DW-1 (Ex. 208), Mahmad
\n\tFaruk Abdul Karim Ludaniya DW-2 (Ex. 209), Hasanali Kadarmiya Diwan
\n\tDW-3 (Ex. 210), Sabbirbhai Y. Begwala DW-4 (Ex. 211) and
\n\tPravinchandra T. Gajjar DW-8 (Ex.219) would show that A-2 has been
\n\twrongly planted by NCB Officers and the same would frustrate the
\n\tcase of the prosecution.  In our view applying the same yardstick as
\n\tobserved earlier in the evidence led by A-1, upon the appreciation
\n\tand reappreciation, it is not possible to accept the contention as
\n\tsought to be canvassed by the learned Counsel appearing for A-2.  As
\n\tsuch, the burden is not fully discharged, nor the same is sufficient
\n\tto frustrate the case of the prosecution on the basis of
\n\tunimpeachable evidence led by the prosecution not only for
\n\tinvolvement of A-2 by the confessional statement, but also by the
\n\tmaterial of narcotic substance found from the conscious possession
\n\tof A-2, therefore, the said contention deserves to be rejected.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel appearing for A-4 that in
\n\tview of the deposition of its witness, Nazmin Iqbalbhai Ansari DW-5
\n\t(Ex.214), Aiyub G. Shaikh DW-6 (Ex.217), Allahrakha M. Arab DW-7
\n\t(Ex.218), Ganibhai Rasulbhai Mansuri  DW-9 (Ex.223), Sureshbhai  M.
\n\tRathwa Dw-10 (Ex. 228), and Bharatbhai Dungarsinhbhai Lakhtariya
\n\tDW-11 (Ex. 229) would go to show that A-4 has been wrongly planted
\n\tby NCB Officer in the alleged offence.\n<\/p>\n
\tWe
\n\thave gone through the evidence on record of the aforesaid witnesses.
\n\t It is not possible for us to conclude that the burden of proving
\n\tthe alibi was discharged, nor is it possible for us to consider such
\n\tevidence as sufficient to frustrate the case of the prosecution
\n\tagainst A-4 on the basis of unimpeachable evidence coming on record
\n\tfor the confessional statements of A-4 as well as the involvement in
\n\tthe business of drug trafficking of A-4, therefore, the said
\n\tcontention of the learned Counsel fails.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel appearing for A-6 that
\n\tnothing was recovered from the possession of A-6, therefore, A-6
\n\twould be entitled for the acquittal.  In furtherance to the
\n\tsubmission it was also contended by the learned Counsel that the
\n\talleged confessional statement was under coercion and duress and not
\n\tin free atmosphere, therefore, the same may not be used against A-6.
\n\t It was contended that the statement was retracted by A-6 and the
\n\tlearned Counsel at the time of hearing tendered a copy of the
\n\tapplication alleged to have been submitted before the Chief Judicial
\n\tMagistrate.\n<\/p>\n
\tAs
\n\tsuch the statement of retraction is not a part of record in the
\n\tpaper book, which has been considered by us.  Further, the pertinent
\n\taspect is that even if the said application of retraction is to be
\n\tconsidered, it bears no date, nor any order passed by the learned
\n\tMagistrate.  Under these circumstances, it is not possible for us to
\n\taccept the contention that the statement was retracted and\/or if
\n\tretracted well in time by A-6.  In any case, even if the alleged
\n\tretraction is considered, then also, as stated above, there is
\n\tsufficient reliable evidence coming on record for direct involvement
\n\tof A-6 in the trafficking of narcotic substance i.e. Charas,
\n\twhich was found in possession of A-5.  Therefore, the contention
\n\traised by the learned Counsel for A-6 does not deserve to be
\n\taccepted.\n<\/p>\n
\tThe
\n\tlearned Counsel appearing for A-2  raised the contention that
\n\tnormally the panchnamas for seizure should have been prepared at the
\n\tplace of the offence and there was no valid reason for not preparing
\n\tthe panchnamas at the place of raid.  He contended that
\n\tnon-preparation of the panchnamas at the place of the raid would
\n\tvitiate the procedure of seizure, therefore, the accused would be
\n\tentitled to the benefits of the same.\n<\/p>\n
\tThe
\n\tcontention deserves to be examined in light of the evidence on
\n\trecord.  Shailendra Lodha, NCB Officer (PW-1) (Ex. 29) in his
\n\tdeposition has stated that after positive result on testing at site,
\n\tas the place was a public place and was with heavy traffic and no
\n\telectronic weighing machine was available and if there is vibration,
\n\tthe weighing machine would not show the correct weight, therefore,
\n\tit was decided that the further seizing and sampling procedure
\n\tshould be conducted in the office.  Therefore, it is not a matter
\n\twhere no sufficient explanation has come on record.  Not only that,
\n\tbut in the panchanamas (Ex.91), it was expressly recorded that the
\n\tplace was on the National Highway, therefore, it was not possible
\n\tfor taking the weight of the material and hence, 14 packets were
\n\thanded over to panchas.  It was also stated in the panchnamas that
\n\tthe truck is loaded with apples.  Therefore, it was not possible to
\n\ttake the search of the truck and hence, ultimately all proceeded
\n\ttowards NCB Office.  Such evidence goes to show that there is
\n\tsufficient explanation and does not create doubt about the manner
\n\tand method of conducting seizure by the NCB Officers on the ground
\n\tas sought to be canvassed.  Hence, the said contention fails.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel Mr.Naik for A-2  that the
\n\tpanchas should have been of the same locality where the search was
\n\tcarried out, but the panchas were either working in the same office
\n\tor working in the Income Tax Department, therefore, it was submitted
\n\tthat the case of the prosecution should not be believed by the Court
\n\tand the accused would be entitled to the benefits.\n<\/p>\n
\tIt
\n\tis not a sine qua non that the panch must be of the same
\n\tlocality.  It is for the defence to put forward the case of
\n\tconcoction of panchas and in absence thereof, un-contradicted
\n\tevidence which has come on record of panchas cannot be discarded.
\n\tFurther, working in the office of any Government   Organization
\n\twould not disqualify the persons from acting as a panch, unless the
\n\taccused in the defence has been able to show that there was any
\n\tanimosity with the accused by the said panch witness from whom the
\n\ttruth cannot be expected.  Therefore, the said contention raised by
\n\tMr.Naik deserves to be rejected.\n<\/p>\n
\tIt
\n\twas next contended by the learned Counsel Mr.Naik for the appellant
\n\t  A-2 that the recording of the statement under Section 313 is in
\n\tstereotype manner without raising separate question, therefore, the
\n\tmandatory procedure has not been followed at the time of trial.
\n\tHence, the final verdict can be said as vitiated.\n<\/p>\n
\tWe
\n\thave considered the statements recorded of all the accused under
\n\tSection 313 by showing the incriminating material against them.  The
\n\tpertinent aspect is that the evidence was common and in majority the
\n\tincriminating material is also common, since as per the prosecution
\n\tthere was also charge of abatement and criminal conspiracy as
\n\tprovided under Section 29 of the Act.  If there is charge under
\n\tSection 29 of the Act of abatement and criminal conspiracy,
\n\tincriminating material against all the accused is required to be put
\n\twhile recording the statements under Section 313 of Cr.P.C., and
\n\tthat was so done by the learned Trial Judge, therefore, there is no
\n\tillegality as sought to be canvassed by the learned Counsel.  Hence,
\n\tthe said contention cannot be accepted.\n<\/p>\n
\tThe
\n\tcontention raised by the learned Counsel appearing for the wife of
\n\tA-5, to the extent of assailing the order of confiscation  of the
\n\titems, which were found from the possession of A-5 namely; the FDRs
\n\tand KVPs in the name of the wife of A-5 deserves consideration.
\n\tSection 62 of the Act reads as under:-\n<\/p>\n
 62.Confiscation
\nof sale proceeds of illicit drugs or substances.62. Confiscation of
\nsale proceeds of illicit drugs or substances. Where any narcotic drug
\nor psychotropic substance is sold by a person having knowledge or
\nreason to believe that the drug or substance is liable to
\nconfiscation under this Act, the sale proceeds thereof shall also be
\nliable to confiscation.\n<\/p>\n
\tAs
\n\tsuch there is also an express provision provided under the Act for
\n\tconfiscation of the narcotic drugs or psychotropic substance or the
\n\tcontrolled substance, but it also provides for the enabling power to
\n\tconfiscate the sale proceeds thereof and once the evidence is
\n\tproved, the sale proceeds of such narcotic\/psychotropic substance is
\n\talso liable to be confiscated Section 452 of Cr. P.C., and Section
\n\t454 of Cr. P.C., which are relevant for the purpose of this issue
\n\tread as under:-\n<\/p>\n
  452.
\nOrder for disposal of property at conclusion of trial.\n<\/p>\n
 (1)<\/span><\/p>\n
When an inquiry or trial in any Criminal Court is concluded, the
\ncourt may make such order as it thinks fit for the disposal, by
\ndestruction, confiscation or delivery to any person claiming to be
\nentitled to possession thereof or otherwise, of any property or
\ndocument produced before it or in its custody, or regarding which any
\noffence appears to have been committed, or which has been used for
\nthe commission of any offence.\n<\/p>\n
(2) An order may be made under
\nsub-section (1) for the delivery of any property to any person
\nclaiming to be entitled to the possession thereof, without any
\ncondition or on condition that he executes a bond with or without
\nsureties, to the satisfaction of the court, engaging to restore such
\nproperty to the court if the order made under subsection (1) is
\nmodified or set aside on appeal or revision.\n<\/p>\n
(3) A Court of
\nSession may, instead of itself making an order under sub-section (1),
\ndirect the property to be delivered to the Chief Judicial Magistrate,
\nwho shall thereupon deal with it in the manner provided in sections
\n457, 458 and 459.\n<\/p>\n
(4) Except where the property is livestock
\nor is subject to speedy and natural decay, or where a bond has been
\nexecuted in pursuance of sub-section (2), an order made under
\nsub-section (1) shall not be carried out for two months, or when an
\nappeal is presented, until such appeal has been disposed of.\n<\/p>\n
(5)<\/span><\/p>\n
In this section, the term “property” includes, in the case
\nof property regarding which an offence appears to have been
\ncommitted, not only such property as has been originally in the
\npossession or under the control of any party, but also any property
\ninto or for which the same may have been converted or exchanged, and
\nanything acquired by such conversion or exchange, whether immediately
\nor otherwise.\n<\/p>\n
\t454.
\nAppeal against orders under section 452 or section 453.\n<\/p>\n
 (1)<\/span><\/p>\n
Any person aggrieved by an order made by a court under section 452 or
\nsection 453, may appeal against it to the court to which appeals
\nordinarily lie from convictions by the former court.\n<\/p>\n
(2) On
\nsuch appeal, the Appellate Court may direct the order to be stayed
\npending disposal of the appeal, or may modify, alter or annul the
\norder and make any further orders that may be just.\n<\/p>\n
(3) The
\npowers referred to in sub-section (2) may also be exercised by a
\ncourt of appeal, confirmation or revision while dealing with the case
\nin which the order referred to in sub-section (1) was made.\n<\/p>\n
\tAs
\n\tsuch no claim was made by the wife of A-5 before the trial Court.
\n\tFurther, at the time when the further statement of A-5 under Section
\n\t313 of Cr.P.C., was recorded, he had not claimed that the muddamal
\n\trecovered including the FDRs and KVPs were not belonging to him but
\n\twere belonging to his wife.  As per the statement recorded under
\n\tSection 67 of the Act of A-5 as well as the wife of A-5 the money
\n\twas earned also out of the sale of drugs and the said amount was
\n\tinvested in the name of the wife of A-5.  As per the record all
\n\titems; cash, FDRs and KVPs
\n\twere seized as muddamal
\n\tand the same was also reported to the trial Court.  Under these
\n\tcircumstances, in absence of any claim lodged by A-5 or the wife of
\n\tA-5, either by separate application or in further statement under
\n\tSection 313, it could be said that the learned Trial Judge was
\n\tjustified in passing the order of confiscation.  However, two fact
\n\tsituations arise for consideration in the present case; one is that
\n\tbefore A-5 could be held guilty by the learned Judge he had expired.
\n\t Therefore, the case abated
\n\tagainst him, though for all purpose the guilt is traced by the trial
\n\tJudge of A-5 for involvement in the alleged offences, but the fact
\n\tremains that accused A-5 could not be convicted, since he had
\n\texpired prior to the passing of the final judgement and order.  The
\n\tsecond circumstance is that all the FDRs and KVPs are not in the
\n\tname of A-5, but are also in the name of the wife of A-5.  The wife
\n\tof A-5 is not arrayed as accused in the case.  Therefore, she could
\n\tbe said to be a third party, who may have interest in such FDRs and
\n\tKVPs.\n<\/p>\n
\tIt
\n\twas contended by the learned Counsel for the wife of A-5 that the
\n\tpresent claim though is not raised before the trial Court could be
\n\traised before the appellate Court by the wife of A-5, since the
\n\tappeal is a continuous proceeding.  It was submitted that this Court
\n\tmay consider the claim and may direct for return of cash, FDRs and
\n\tKVPs to the wife of A-5.  The learned Counsel restricted such prayer
\n\tfor these items only and did not claim for return of the narcotic
\n\tsubstance, which was recovered and seized from the possession of
\n\tA-5.\n<\/p>\n
\tIt
\n\tappears to us that as such the learned Judge has not made any
\n\tobservations or discussions on the aspects of confiscation of the
\n\tcash amount and FDRs\/KVPs.  So far as the cash amount is concerned,
\n\tif the matter is examined in light of the provisions of Section 62
\n\tof the Act read with the confessional statements of A-5, it has been
\n\tproved that the sale proceeds are realised from the sale of
\n\tnarcotic substance. Therefore, all amounts in the hands of A-5 being
\n\tthe sale proceeds of
\n\tnarcotic substance were liable to be confiscated and rightly
\n\tconfiscated by the learned trial Judge. However, so far as FDRs and
\n\tKVPs in the name of the wife of A-5 is concerned, since she was not
\n\tthe accused in the trial, it would be required to examine as to
\n\twhether such amount, though realized from the sale of narcotic
\n\tsubstance will attract the forfeiture if in the hands of the person,
\n\twho is not arrayed as accused in the case.  Further, the aspects may
\n\talso be required to be considered
\n\tby the Court as to whether the nature of title of the property of
\n\tFDRs and KVPs would remain the same, if the husband, out of the sale
\n\tof narcotic substance has given away the amount to his wife.  It has
\n\talso not come on record as to whether the amount was given away by
\n\tA-5 to his wife as his own property retaining his claim over the
\n\tamount or was gifted as sthreedhan
\n\tor otherwise.  It has come on record in the confessional statements
\n\tof the wife of A-5 that they have other property including the
\n\tagricultural land.  Therefore, it will have to be
\n\texamined as to whether the amount of FDRs and KVPs are formed part
\n\tof any lawful income of agriculture or rental income or not.  It is
\n\tonly after such full-fledged inquiry is undertaken by giving
\n\topportunity to the concerned parties, it can be concluded as to
\n\twhether such KVPs and FDRs are liable to be confiscated or not or
\n\tthat the same is required to be returned to the holder of KVPs and
\n\tFDRs namely; the wife of A-5 or not.  As no inquiry whatsoever has
\n\tbeen held, we find that order passed by the learned trial Judge
\n\tconfiscating of the muddamal
\n\tdeserves to be modified to the extent of confiscation of KVPs and
\n\tFDRs standing in the name of the wife of A-5, but the order passed
\n\tby the learned trial Judge for confiscation of the cash amount and
\n\tFDRs\/KVPs standing in the name of A-5, if any, does not deserve to
\n\tbe interfered with.\n<\/p>\n
\tIt
\n\twas lastly contended by the learned Counsel for A-1 to A-4 and A-6
\n\tthat the punishment imposed by the trial Court is life-imprisonment,
\n\twhereas as per the provisions of the Act, the maximum punishment is
\n\t20 years.  It was submitted that the learned trial Judge has
\n\tcommitted grave error in imposing sentence of life-imprisonment and
\n\tit was also submitted that considering the facts and circumstances,
\n\tthe punishment deserves to be imposed would be less than 20 years,
\n\tkeeping in view the age and family circumstances that the accused
\n\tconcerned.\n<\/p>\n
\tIf
\n\tthe provisions of Section 20(C) of the Act is considered, it does
\n\tappear that the maximum punishment is 20 years with the fine of not
\n\tless than Rs.1 lac (Rupees one lac).  It is true that the
\n\thuge quantity of narcotic substance i.e. Charas is
\n\tnot only found in conscious possession of A-1, A-2, A-5, but
\n\tconsidering the facts and circumstances, it appears to us that it is
\n\tnot a case where the punishment deserves to be imposed less than the
\n\tmaximum punishment upon each of the accused.  If in such a serious
\n\toffence of drug trafficking in huge quantity, the maximum punishment
\n\tis not imposed, the purpose of the Act and the deterrent effect
\n\twould be frustrated.  However, even if maximum punishment is
\n\tconsidered, it will not be the imprisonment for
\n\tlife, but would be 20 years.  Therefore, the conviction imposed by
\n\tthe learned trial Judge upon A1 to A-4 and A-6 deserves to be
\n\tmodified.\n<\/p>\n
\tOn
\n\tthe aspects of consideration of the confessional statements, it is
\n\twell settled that if the same can be considered as the material
\n\tevidence for tracing the guilt of the accused, who has given
\n\tconfessional statements provided the Court is satisfied about the
\n\tvoluntariness of the confessional statements, but at the same time
\n\tsuch confessional statements can also be considered
\n\ttogether with the other evidence for trading the guilt of the
\n\tco-accused, but in such circumstances, there should be existence of
\n\tother evidence.  The reference may be made to the decision of the
\n\tApex Court in the case of Bhana Khalpabhai Patel v.
\n\tAssistant Collector of Customs, Bulsar and Anr.,<\/a>
\n\treported in 1998(2) GLR, 1319
\n\tand more particularly the observations made at paragraph 5 of the
\n\tsaid decisions.\n<\/p>\n
\tIf
\n\tthe matter is examined in light of the aforesaid and on
\n\treappreciation of evidence, it does appear that there is no breach
\n\tof the provisions of Sections 42 and 43 of the Act. Further, there
\n\tis also no illegality in the procedure of search and seizure.  The
\n\tstatements recorded under Section 67 of the Act have been rightly
\n\tfound to be admissible in the evidence in support of the case of the
\n\tprosecution.  It further appears that the conscious possession of
\n\thuge narcotic substance found from A-1, A-2 and A-5.  The conjoint
\n\treading of the statements recorded under Section 67 of the Act read
\n\twith the other material evidence coming on record in the testimony
\n\tof the witnesses examined by the prosecution, it appears that the
\n\taccused were regularly dealing in drug trafficking business.  The
\n\tlearned Special Judge has rightly found that the charge of abatement
\n\tand conspiracy is also proved.  It appears to us that the learned
\n\tSpecial Judge has rightly found A-1 to A-4 as well as A-6 guilty for
\n\tthe offence under Sections 8(C) and 20(B) read with Section 29 of
\n\tthe Act.  The guilt and conviction could also be recorded of A-5,
\n\thowever, but for the fact that A-5 had expired after recording of
\n\tthe statements under Section 313 of Cr.P.C., the same is not
\n\trecorded of A-5.\n<\/p>\n
\tIn
\n\tview of the aforesaid, the conviction recorded by the learned
\n\tSpecial Judge of A-1 to A-4 and A-6 deserves to be modified to the
\n\textent that the sentence shall be of 20 years and the order for
\n\timposition of sentence for life shall stand modified to the extent
\n\tof imprisonment for 20 years.  The other part of the order for
\n\timposition of fine does not deserve to be interfered with.  So far
\n\tas the order for confiscation of muddamal is concerned, in
\n\tview of the observations made hereinabove, the cash amount recovered
\n\tfrom A-5 and the FDRs\/KVPs in the name of A-5 shall stand
\n\tconfiscated and the order passed by the learned Special Judge is not
\n\trequired to be interfered with, however, so far as the FDRs and KVPs
\n\tin the name of the wife of A-5 is concerned, the order passed by the
\n\tlearned Special Judge for forfeiture is modified to the effect that
\n\ta separate inquiry shall be held by the learned Special Judge on the
\n\taspect of forfeiture in light of the observations made by this Court
\n\tin the present judgement and at the outcome of the inquiry the
\n\tappropriate orders shall be passed for confiscation and\/or the
\n\tentrustment of the said FDRs or KVPs to the person entitled for the
\n\tsame at the conclusion of the inquiry by the learned Special Judge.
\n\tThe opportunity of leading evidence and of hearing to the wife of
\n\tA-5 as well as the prosecution\/NCB Department, if they are so
\n\tdesirous, to lead the evidence shall be given by the learned Special
\n\tJudge.  The aforesaid inquiry shall be completed preferably within a
\n\tperiod of six months from the date of receipt of the order of this
\n\tCourt.  The judgement and order of the learned Special Judge shall
\n\tstand modified to the aforesaid extent.  The Appeals are allowed to
\n\tthe aforesaid extent.  The R & Ps be sent back to the trial
\n\tCourt.\n<\/p>\n
\tAfter
\n\tthe pronouncement of the order, Mr.Dharmesh Patel for Mr.Shethna,
\n\tlearned Counsel for Appellant   A-6 states that A-6 is on regular
\n\tbail and he prays for time to surrender may be granted to A-6, since
\n\the would be desirous to go before the higher forum.  Considering the
\n\tfacts and circumstances, A-6 shall surrender on or before 16th
\n\tJuly, 2010.<\/p>\n
\n\n \n\n\n \n\n\n \n\n\n\t\t\t\t\t\t\t(Jayant\nPatel, J.)\n \n\n\n \n\n\n \n\n\n10.5.2010\t\t\t\t\t(Z.\nK. Saiyed, J.)\n \n\n\n vinod\n\n    \n\n \n\t   \n      \n      \n\t    \n\t\t   \u00a0\u00a0\u00a0\n\t   \n      \n\t  \t    \n\t\t   Top\n\t   \n      \n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Sulochnaben vs Exh.3 on 7 May, 2010 Author: Jayant Patel,&Nbsp;Honourable Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/1269\/2008 77\/ 80 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1269 of 2008 With CRIMINAL APPEAL No. 2550 of 2008 With CRIMINAL APPEAL No. 1726 of 2008 With CRIMINAL […]<\/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-40666","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSulochnaben vs Exh.3 on 7 May, 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\/sulochnaben-vs-exh-3-on-7-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sulochnaben vs Exh.3 on 7 May, 2010 - 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