Iqbal Moosa Patel S/O. Mohammed ... vs State Of
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Section 67 in The Indian Penal Code, 1860
Section 57 in The Indian Penal Code, 1860
Section 50 in The Indian Penal Code, 1860
Bench: A Kapadia, R Shukla
Iqbal Moosa Patel S/O. Mohammed Patel vs State Of Gujarat And Anr. on 17/3/2008
JUDGMENT
R.H. Shukla, J.
1. These Criminal Appeals are directed against the judgment and order dated 3rd November, 2006 passed in Sessions Case No. 183 of 2001 by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad, recording the conviction of the appellants-accused for the offences under Section 8(c), read with Sections 21 and 29, of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") for possession and illegal smuggling and trafficking of heroin as a part of the conspiracy. The appellant in Criminal Appeal No. 2327 of 2006 is the original accused No. 1 and has been convicted and sentenced to twelve years of rigorous imprisonment and a fine of Rs. 2 Lakhs, in default to undergo simple imprisonment for two years. The appellant in Criminal Appeal No. 754 of 2007-Hemaram Chaudhary is the original accused No. 2 and he has been convicted and sentenced to twelve years of rigorous imprisonment and a fine of Rs. 2 Lakhs, in default to undergo simple imprisonment for two years. The appellant in Criminal Appeal No. 343 of 2007 is the original accused No. 3. He has been convicted and sentenced to ten years of rigorous imprisonment and a fine of Rs. 1 Lakh, in default, to undergo simple imprisonment for one year and the appellant in Criminal Appeal No. 1235 of 2007 is original accused No. 4 and he has been convicted and sentenced to ten years of rigorous imprisonment and a fine of Rs. 1 Lakh, in default to undergo simple imprisonment for one year.
2. The facts of the prosecution case, briefly summarized, are that a conspiracy was hatched for interstate smuggling and trafficking/transportation of narcotic drugs and psychotropic substances (heroin). A secret information was received by Mr. K.C. Chudasma, Inspector, Anti-Terrorist Squad, which he passed on to Mr. Vipul Vijoy, Deputy Inspector General of Police, Anti-Terrorist Squad, Gujarat State, which was ultimately passed on to Mr. P.S. Tomar, Zonal Director, Narcotics Control Bureau, Ahmedabad along with a copy of the information dated 29.06.2001. On the basis of such secret information, it was revealed that accused No. 2 - Hemaram Chaudhary was the kingpin and Derajram Jat - accused No. 3 was the man carrying out the operations at the instance of accused No. 2. It is on the basis of such further information that Truck bearing registration No. RJ-04-G-1305 carrying such contraband articles was returning without delivering the brown sugar at Bharuch, the raid was carried out on 29.06.2001 at around 2:40 p.m. at
2.1 Thereafter, on the basis of such information and revelation, a further raid was carried out on 7th July, 2001 at Village: Varadia,
2.2 Therefore, accused No. 1-Iqbal Moosa was also arrested after the raid at his residence at Village: Varadia in Dist. Bharuch with seizure of huge quantity of 3.056 kgs. of heroin and cash of Rs. 1,17,500/-. The statements under Section 67 of the NDPS Act have been recorded, which gave a further clue to the investigation and on the basis thereof, other accused persons were arrested; their remands were also sought for and a complaint, being NDPS Case No. NCB/AZU/CR.02/2001, was filed before the learned City Sessions Judge, Ahmedabad, which was registered as Sessions Case No. 183 of 2001.
2.3 The charge was framed against the accused persons which was read over and explained to them. The accused persons pleaded not guilty to the charge and they came to be tried. Therefore, all the accused persons were tried by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad in Sessions Case No. 183 of 2001.
2.4 In order to bring home the charges levelled against the accused persons, the prosecution has examined the following eight witnesses:
P.W. Name Status Exh. 1 Suraji Manharsinh Jadeja Panch Witness 37 2 Devdatt Nanalal Oza Intelligence Officer, 42 NCB, Ahmedabad
3 Jignesh Jaswantbhai Modi Panch Witness 70 4 Mohnish H. Bhalla Intelligence Officer, 81 NCB, Ahmedabad.
5 Pavansinh Tomar Zonal Director, NCB, 119 Ahmedabad.
6 Mohindersingh Jageram Asst. Director, 130 Dahiya Narcotics, FSL.
7 Vipul Vijoy Inspector General, 134 Anti Terrorist Squad,
Ahmedabad.
8 Krishnakumar Chandrasinh Police Inspector, ATS, 140 Chudasma Ahmedabad.
The prosecution has also produced voluminous documentary evidence with the list at Exh.32, which shall be referred to in this judgement as and when required.
2.5 After recording the evidence of the prosecution witnesses, further statement of the accused persons under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") was recorded. Accused No. 1 has stated, inter alia, that his statement under Section 67 of NDPS Act has been recorded under pressure and he has not been involved in any offence. In most of the answers, he has stated that "he does not know". Similarly, other accused persons have also in their further statement given the replies that they have been falsely implicated and the statements Section 67 of NDPS Act have been recorded under pressure or duress.
2.6 After further statement under Section 313 of the Code was recorded, the following defence witnesses have been also examined by the defence lawyers for the accused persons:
D.W. Name Exh.
1 Jitendra Narottamdas Mandaliya 154
2 Magesh Sadashiv Param 155
3 Moosabhai Adambhai Patel 157
4 Nagjibhai Arjanbhai Desai 164
5 Niranjan Kalidas Varma 167
6 Umesh Jayantkumar Pathak 169
7 Soeb Fidahussain Ujjainwala 174
8 Shankarbhai Kalidas Makwana 182
9 Dr. Sumanlal Bholanath Srimali 187
10 Dr. Jagruti Navalsingh Jadeja 189
11 Namuddiprasan Shankar Narayanam 192
12 Dr. Bhargav Becharbhai Jhaveri 207
13 Hamidaben Iqbal Moosa Patel 209
14 Narpatsinh Kisharsinh Bhati 218
2.7 The learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad, on appreciation and evaluation of the evidence and after hearing the learned advocates for the accused persons as well as the learned Public Prosecutor, passed the impugned judgment and order recording the conviction as stated hereinabove and sentenced the accused persons for the offences alleged and proved against them.
2.8 It is this judgment which has been challenged on the ground mainly that a false case has been made out and accused No. 1 has been falsely implicated. It has also been contended that two agencies have been involved deliberately inasmuch as the Narcotics Control Bureau (NCB) has been involved though the operations were carried out by Anti-Terrorist Squad (ATS) only with a view to see that the statements of the accused persons recorded during the investigations are made admissible under Section 67 of NDPS Act. It has been much emphasised that such statements have been recorded under pressure, threat and accused No. 1 and accused No. 2 were ill-treated and they were compelled to give such statements and, therefore, the statements recorded under Section-67 of the NDPS Act are not voluntary and therefore, are not admissible and could not have been relied upon.
3. In order to substantiate these contentions, much emphasis has been given with regard to the appreciation of evidence in the form of depositions of Mr. Mohnish Bhalla - (PW-4), Intelligence Officer, NCB, Ahmedabad at Exh.81 and Mr. Pavansinh Tomar - PW-5, Zonal Director, NCB at Exh.119. There are contradictions in their evidence and therefore, the same cannot be relied upon. Further, it has been contended that this evidence is required to be appreciated in light of the evidence or deposition of the defence witnesses. Another facet of the contention raised is that the mandatory provisions of Sections 42 and 50 of the NDPS Act have not been complied with and the entire case, which has been created, is concocted and got-up and for non-compliance of mandatory provisions of the NDPS Act, the entire trial is vitiated.
4. Mr. E.E. Saiyed, learned Advocate for accused No. 1, submitted that the two incidents dated 29th June, 2001 and 7th July, 2001 could not have been clubbed together. The entire case of alleged seizure at the house of accused No. 1 - Iqbal Moosa was at Bharuch whereas the narcotic drug/heroin was seized from the truck bearing Registration No. RJ-04-G-1305 at Pirana, Ahmedabad on 29th June, 2001. He, therefore, submitted that both the incidents could not have been clubbed together. It was submitted that it is the case of the prosecution that the secret information was received and on the basis thereof, the truck was intercepted at Pirana, Ahmedabad and the raid was carried out at the house of accused No. 1 at Bharuch on 7th July, 2001. It was submitted that it is clear from the production of the report of appellant-accused No. 1, that Iqbal Moosa Sagar Patel is the co-accused, whose name was disclosed by accused Nos. 3 and 4. Mr. Saiyed, therefore, emphasised that the name disclosed by accused Nos. 3 and 4 was that of Iqbal Moosa Sagar Patel and not the name of the present appellant. Mr. Saiyed also submitted that in the further statement of appellant-accused No. 1, it has been clearly mentioned by the appellant-accused No. 1 that earlier, he was booked at Mumbai in place of Iqbal Moosa Sagar Patel and was acquitted on the ground of identity alone and therefore, in the present appeal also, the same prayer is made.
4.1 Mr. Saiyed submitted that even otherwise the entire case is concocted and got up one as it transpires from the material and evidence produced on record, particularly, depositions of Mr. Bhalla - PW-4 at Exh.81 and Mr. Tomar- PW-5 at Exh.119. It was submitted that in the telegram, which is at page No. 1423 of Paper book No. 1, given by Mr. Bhalla to the wife of the appellant-accused No. 1, it is mentioned that the appellant is arrested vide panchnama dated 25th June, 2001. Therefore, Mr. Saiyed strenuously submitted that how the reference of the document dated 25th June, 2001 is made in that telegram when the accused themselves were arrested on 29th June, 2001 and thereafter, on the basis of the alleged information revealed, the appellant-accused No. 1, Iqbal Moosa, was arrested on 7th July, 2001. Therefore, it was submitted that this would go to show that something is fishy in the prosecution case. Mr. Saiyed also submitted that it is also surprising to notice as to how two different investigating agencies have mixed up two alleged different offences in one case. It was strenuously submitted that it is an admitted position that one alleged incident/seizure has taken place on 29th June, 2001 at
4.2 Mr. Saiyed submitted that the entire case is based on the deposition of three material witnesses, namely, Mr. Bhalla - PW-4, Mr. Tomar - PW-5 and Mr. Chudasma - PW-7. It was submitted that there are material contradictions in the depositions of Mr. Tomar at Exh.119 and Mr. Bhalla at Exh.81. He submitted that when the punishment prescribed for the alleged offences is minimum ten years, then, there should be strict evidence before the Court (probably what is referred to is strict scrutiny of evidence). It was submitted that both are interested witnesses and they are likely to give the evidence in a fruitful manner so that it would ease their work. Therefore, it was submitted that the evidence of two police officers must be supported/corroborated by the evidence of an independent witness. If there is no corroboration from the independent witnesses, then, the evidence of both Mr. Tomar and Mr. Bhalla requires a greater scrutiny. Mr. Saiyed referred to the depositions of Mr. Tomar at Exh.119 and Mr. Bhalla at Exh.81 and submitted that in view of the material contradictions in their evidence on many aspects, their evidence is required to be discarded. For that purpose, Mr. Saiyed has referred to the depositions of both these witnesses in detail and has also reflected in the written submissions in detail in which it has been inter alia contended that the cross examinations of Mr. Bhalla, Mr. Tomar and Mr. Chudasma require close scrutiny. Mr. Saiyed submitted that Mr. Mohnish Bhalla is a responsible Officer and it is expected of him that he should be fair, just and proper and not arbitrary or fanciful, particularly, when the minimum punishment prescribed under the NDPS Act is ten years. It was submitted that Mr. Bhalla is alleged to have received the secret information and he, being the complainant and member of the raiding party, is an interested witness and therefore, his evidence requires greater scrutiny as well as corroboration from the independent witnesses. Mr. Saiyed also submitted that Mr. Bhalla has stated in his deposition that they sealed the packets in such a way that the muddamal may come out without even disturbing the seal, which is fatal, and therefore, his evidence requires a close scrutiny. It was further submitted that in the cross examination, Mr. Bhalla has remained vague to most of the questions and has replied "may be", "may not be" and "I do not remember" and therefore, the evidence of Mr. Bhalla is unbelievable. He further submitted that Mr. Bhalla, in his cross examination, has showed his ignorance about the law and in particular, the NDPS Act, which empowers NCB Officers to search and arrest the accused. Moreover, it has been admitted by Mr. Bhalla in the cross examination that he went to file the complaint on 26th September, 2001 and he was not sure that he was to move with the muddamal on 26th September, 2001. The muddamal is deposited on 19th October, 2001 and there is a vague reply to this aspect as to why there is delay in depositing the muddamal in the Court. Mr. Saiyed strenuously submitted that the reply was that the Nazir of the Court suggested some procedure and when it was specifically asked about the name of the Nazir, he replied that he did not know the name of the Nazir. Further, he has stated that one Rakesh Datania, Police Constable, might have talked to the Nazir. Referring to the deposition of Mr. Tomar, Mr. Saiyed further submitted that his evidence is also doubtful and cryptic and in fact, the learned Additional Sessions Judge has also made observations in the judgement regarding his attitude of not coming out clearly as regards his visit to Mumbai. Mr. Saiyed strenuously submitted that the visit of the witness - Mr. Tomar at Mumbai has not been explained and when he has given vague and evasive reply, it is required to be appreciated in light of the specific case of the defence that accused No. 1 - Iqbal Moosa was brought from Mumbai to Bharuch by Mr. Tomar with him in the car and thereafter, a show has been made of raid and seizure at the house of accused No. 1 - Iqbal Moosa at Bharuch. For that purpose, he has also emphasised the deposition and the discussion on this aspect in the judgement of the learned Additional Sessions Judge making a note about the same. Mr. Saiyed strenuously submitted that as Mr. Tomar has failed to explain about the main travel from Ahmedabad to Mumbai and vice versa, it was not expected of him as a senior officer which has also been noted by the learned Additional Sessions Judge and therefore, the evidence of Mr. Tomar does not inspire confidence and it is not reliable or truthful.
4.3 Further, Mr. Saiyed submitted that few important documents, i.e. Exhs. 83 and 86, are signed neither by Mr. Tomar nor by Mr. Bhalla. He also referred to the evidence of defence witnesses and in particular, the deposition of one Shakarbhai Kalidas Makwana, who is examined as DW-8 at Exh.102 and submitted that this witness has admitted that T.A./D.A. bills of Mr. Tomar were lying in the department, which are produced on record at Exh.161. Further, he has categorically mentioned that it is not clear in the bills and nothing has been mentioned about the fare of the tickets and it is also mentioned that the ticket from Mumbai to Bharuch is lost. Further, Mr. Saiyed referring to the deposition of Moosabhai Adambhai Patel, DW-3, at Exh.157, submitted that this witness was discharging duties as an Inspector in the Office of the Income Tax Department and he has stated in his deposition that a hide and seek game was played by the raiding party and therefore, he refused to put his signature in the panchnama on the ground that the same is not drawn in his presence and thereafter, he was allowed to go. Mr. Saiyed, therefore, strenuously submitted that the evidence of Mr. Tomar, Mr. Bhalla and Mr. Chudasma requires a greater scrutiny and he submitted that their evidence is far from truth and does not inspire confidence and therefore, the learned Additional Sessions Judge ought to have discarded the evidence.
4.4 Mr. Saiyed also submitted that the evidence of Mr. Tomar is also required to be discarded as he has failed to explain before the Court as to why he was in Mumbai and why he had visited Welfare United Trust. Further, his evidence is required to be discarded on the factual aspect regarding his presence at Mumbai and in the morning at Bharuch. Moreover, as it appears from the deposition of Mr. Vipul Vijoy, who is examined as PW-7 at Exh.134, that the record of United Welfare Trust was taken either by him or someone on his behalf and thereafter, the register and documents recovered from the United Family Welfare Trust have not been returned, nor any reply has been given nor it has been produced on record. On this aspect, Mr. Tomar, in his deposition at Exh.119, has not given any specific reply and has avoided the answer on such aspects, which are very relevant.
4.5 Mr. Saiyed submitted that if the depositions of Mr. Tomar and Mr. Bhalla are read together, it would clearly suggests that there are material contradictions on many aspects, namely, when Mr. Tomar arrived at Sama Hotel and how Mr. Bhalla came to know that he reached Sama Hotel at a particular time. Therefore, Mr. Saiyed submitted that Mr. Tomar is silent in his evidence as to how and when he travelled to Mumbai and Bharuch.
4.6 Mr. Saiyed referred to the panchnama at Exh.86 with regard to seizure of heroin at the house of accused No. 1 - Iqbal Moosa and strenuously submitted that the panchnama is got up and cannot be believed or relied upon. For that purpose, he referred to the panchnama and submitted that it is evident that the panchnama was first prepared outside the house of the appellant and the signature was also taken though it is stated that upon knocking the door of the house of the appellant, the appellant was at the door, which would go to show that the appellant was either not in the house or was not present when the panchnama was prepared and therefore, it is got up.
4.7 Mr. Saiyed submitted that even the alleged seizure and recovery of 3.056 kgs. of heroin and Rs. 1 Lakh cash found from the conscious possession from the house of accused No. 1- Iqbal Moosa, also cannot be believed and is doubtful. It was submitted that in such case, the prosecution has to prove the conscious possession. In the present case, there is nothing on record to show that the appellant was in conscious possession of the muddamal in question. Mr. Saiyed submitted that the heroin is said to have been found from the cupboard, which was open, and the entire house of the appellant was accessible to all the family members and servants and therefore, the conscious possession of accused No. 1 cannot be said to have been established. Mr. Saiyed submitted that the appellant-accused No. 1, Iqbal Moosa, is an agriculturist having more than 50 vighas of land and having family members in the house and also the servants, who are doing agricultural operations, and they are expected to visit frequently in the house. Moreover, there are domestic servants also. Therefore, the alleged recovery would not establish the conscious possession of the appellant-accused No. 1- Iqbal Moosa.
4.8 Mr. Saiyed also submitted that accused No. 1 - Iqbal Moosa was brought from Mumbai to Bharuch under the coercion and threat. His alleged statement under Section 67 of the NDPS Act was recorded under threat, which is established from the jail register, in which there is a specific note about the ill-treatment and pressure. Mr. Saiyed submitted that the appellant-accused No. 1, Iqbal Moosa, was ill-treated by the police authorities, for which there is an entry in the jail register and the accused was also referred to the doctor and there is a medical evidence about the injury caused to the accused and the medical officer has been examined as a defence witness. For that purpose, Mr. Saiyed also referred to the depositions of Nagjibhai Arjanbhai Desai, DW-4, Exh.164, who is the jailer, Dr. Sumanlal Bholanath Srimali, DW-10, Exh.189, and Dr. Jagruti Navalsinh Jadeja, DW-11, Exh.192. Mr. Saiyed submitted that the alleged confessional statement under Section 67 of the NDPS Act, which is relied upon by the prosecution, is not a voluntary statement and therefore, it could not have been relied upon to convict the accused.
4.9 Mr. Saiyed submitted that the prosecution has relied upon the statements of the accused persons, including appellant-accused No. 1, Iqbal Moosa, under Section 67 of the NDPS Act, have been recorded under threat, coercion, mental pressure or torture and therefore, such statements cannot be said to be voluntary statements. Mr. Saiyed, therefore, submitted that if the statements of the accused persons, including appellant-accused No. 1 - Iqbal Moosa, are taken away, then, the prosecution case would fall to the ground. He, therefore, submitted that the Court may examine in light of the material and evidence on record that whether such statements recorded under Section 67 of the NDPS Act could have been relied upon by the learned Additional Sessions Judge and whether it could be reliable evidence. For that purpose, Mr. Saiyed again referred to the depositions of Nagjibhai Arjanbhai Desai - DW-4, Dr. Sumanlal Bholanath Srimali - DW-9, Dr. Jagruti Navalsingh Jadeja - DW-10, and Dr. Bhargav Becharbhai Jhaveri - DW-12, with regard to the mental torture and ill-treatment. Mr. Saiyed also submitted that the statement under Section 67 of the NDPS Act is alleged to have been recorded only with a view to establish the case and as such the statement is not voluntary and it could not have been relied upon. Moreover, Mr. Saiyed submitted that the statements recorded by the NCB Officers raise the doubts as to the manner in which it is recorded and also it would be a statement made before the police during the investigation while in the custody, but, the arrest has been shown subsequently to make a show and therefore, it raises serious doubts about the credibility of these documents. For that purpose, Mr. Saiyed again referred to the depositions of Mr. Bhalla (Exh.81), Mr. Tomar (Exh.119) and Mr. Chudasma (Exh.140) and submitted that it has been admitted that the statement of Iqbal Moosa, accused No. 1, was recorded in his own handwriting in presence of Mr. Bhalla and Mr. Tomar, the statement of accused No. 3 was recorded in his own handwriting and Mr. Oza and Mr. Tomar were present at that time, and the statements of accused Nos. 2 and 3 were recorded by Mr. Oza and Mr. Tomar was present at that time, whereas the law provides that while recording such statements, there should not be anybody except the accused who makes the statement and the empowered officer who has recorded the statement. Mr. Saiyed, therefore, again strenuously submitted that the involvement of NCB or two agencies in the present case was only with a purpose that the statement under Section 67 of the NDPS Act could be recorded inasmuch as if the statement would have been recorded by ATS, it would not have been admissible in evidence and therefore, NCB has been deliberately involved with a view to see that if the statement under Section 67 of the NDPS Act could be recorded, it could be admissible in evidence. Therefore, Mr. Saiyed referring to his written submissions strenuously submitted that what prompted the seasoned and experienced NCB Officers to become party to the raid and record such statement, and the answer is clear that to have the benefit of confessional statement under Section 67 of the NDPS Act, NCB Officers are involved. This would again show that the prosecution is not fair and and the manner, in which the said statements are recorded, raises serious doubts about voluntariness and also the manner in which they are recorded, and therefore, the same cannot be relied upon and the learned Additional Sessions Judge ought not to have relied upon the same.
4.10 Mr. Saiyed also submitted that the mandatory provisions of Sections 42 and 50 of the NDPS Act have not been complied with, which will result into illegality, and the learned Additional Sessions Judge has failed to appreciate on that aspect. For that purpose, he has referred to Section 50 of the NDPS Act and submitted that if it is read with panchnama at Exh.83 and deposition of Mr. Bhalla at Exh.81, then, it would suggest that Section 50 has not been complied with inasmuch as at the time of search and seizure at the house of accused No. 1, no such requisition that if he requires, then, the search can be made in presence of the Gazetted Officer, was made, nor he has been taken to the magistrate. It was further submitted that if the search is to be made under Section 42 of the NDPS Act, then, the search warrant has to be obtained and if it was not possible, then, the authorised officer must pass the resolution. Mr. Saiyed submitted that no such resolution has been passed by the authorised officer - Mr. Bhalla, as is admitted by him in his deposition at Exh.81. It was submitted that panchnama for the seizure of heroin from the house of accused No. 1-Iqbal Moosa at Exh.83 is not signed and one of the panchas has turned hostile. He submitted that as the signature is not obtained on the said panchnama, the same is concocted and got up, which the learned Additional Sessions Judge has failed to appreciate.
4.11 Mr. Saiyed, referring to the deposition of Mr. Bhalla - PW-4 at Exh.81, submitted that admittedly, he has not reduced the information in writing. Referring to Exh.82 and Exh.135 and relying upon Section 42 of the NDPS Act, he submitted that if such information was reduced in writing, then, he was required to send a copy thereof to the immediate superior officer within 72 hours, which has not been done in the present case. For that purpose, he referred to the deposition of Mr. Bhalla at Page-1283 of the paper-book.
4.12 Mr. Saiyed also submitted that the defence witnesses must be given parallel importance. He emphatically submitted that there are contradictions in the evidence of the prosecution witnesses and they have to be read in light of the deposition of the defence witnesses. He submitted that the evidence of the prosecution may be considered and evaluated in light of the evidence of defence witnesses also. It was submitted that the defence has examined the wife of accused No. 1-Iqbal Moosa, Hamidaben Iqbal Moosa Patel at Exh.209 and she has narrated and stated that accused No. 1 was at Mumbai. She has also stated that as he was expecting near relatives from
4.13 Mr. Saiyed submitted that if the case of the prosecution is believed that on 29th June, 2001, accused Nos. 2, 3 and 4 were arrested and from further inquiry, the revelations were made. However, there was a newspaper report regarding this aspect and no reasonable man would keep such contraband article like heroin in his house. Therefore, Mr. Saiyed submitted that if accused No. 1 had knowledge, he would have tried to dispose it of or shifted it away instead of keeping in the house.
4.14 Mr. Saiyed submitted that the case of the prosecution is entirely based on the statements recorded under Section 67 of the NDPS Act, which again is doubtful and NCB was involved only for that purpose. Further, if the statements under Section 67 of the NDPS Act are not considered, there are major contradictions in the depositions of the prosecution witnesses, Mr. Tomar at Exh.119 and Mr. Bhalla at Exh.81 and the prosecution cannot be said to have established the charges levelled against the accused beyond any reasonable doubt. He emphasised that while appreciating and evaluating the evidence, the Court ought to have considered these aspects to adjudge reliability or veracity of the evidence of the prosecution.
4.15 On the aforesaid premises, it is submitted by Mr. Saiyed that the impugned judgement and order convicting and sentencing accused No. 1 deserves to be quashed and set aside by allowing the appeal and thereby acquitting accused No. 1 of the offence, with which he was charged. He, therefore, urged to allow the appeal.
5. Mr. R. M. Agrawal, learned Advocate for the appellants, accused Nos.2, 3 and 4, submitted that the prosecution has deliberately involved NCB only with a view to see that the statements recorded under Section 67 of the NDPS Act are admissible in evidence. It was submitted that confessional statement recorded under Section 67 of the NDPS Act is, in fact, not an evidence under the Evidence Act. Mr. Agrawal strenuously submitted that such statements recorded under Section 67 of the NDPS Act are not admissible in evidence and even if they are admissible, they cannot form the basis for conviction and the prosecution is required to establish the case beyond reasonable doubt independently on the basis of other material and evidence on record. Mr. Agrawal submitted that the statement under Section 67 of the NDPS Act is not recorded as per the Evidence Act and in support thereof, he referred to and relied upon a judgement of the Honourable Apex Court in the case of Kashmira Singh v. The State of M.P. reported at . He also referred to Section 67 of the NDPS Act and submitted that it cannot be said as admissible in evidence.
5.1 Mr. Agrawal submitted that the learned City Sessions Court, Ahmedabad, which has conducted the trial is also without jurisdiction. It was submitted that normally, the trial should take place where the offence has been committed and in the facts of the present case, the offence has not taken place within the jurisdiction of the learned City Sessions Court and therefore, the whole trial is without jurisdiction and is a nullity. It was submitted that the first incident of 29th June, 2001 has taken place at Pirana, Ahmedabad (Rural) where accused Nos. 2 and 3 were intercepted and were produced initially before the learned Judicial Magistrate (First Class), Ahmedabad (Rural) and that on the basis of further revelations, another raid was carried out at the house of accused No. 1 at Bharuch. He, therefore, submitted that the learned City Sessions Court will not have jurisdiction in any case. Referring to Exh.111 and the impugned judgement and order, he submitted that if the entire offence or case has taken place outside the jurisdiction of the learned City Sessions Court, the trial could not have been conducted by the learned City Sessions Court.
5.2 Mr. Agrawal also referred to Section 190 of the Code and submitted that the cognisance could be taken, as provided in the said provision.
5.3 Mr. Agrawal submitted that the case of the prosecution heavily relies upon the statements recorded under Section 67 of the NDPS Act, but, as submitted, the statements are recorded in such a manner that they cannot be relied upon in light of the submission that they are not admissible in evidence as per the Evidence Act. He further submitted that even if it is believed that the statements are admissible in evidence, it cannot form the basis for conviction and therefore, the prosecution has to prove the case beyond the reasonable doubt for the charges against the accused persons. Mr. Agrawal further submitted that the charges levelled against the accused persons cannot be said to have been established by the prosecution beyond reasonable doubt. He, therefore, emphasised that it is well accepted that the prosecution has to prove the case beyond reasonable doubt and also it has to be proved that the contraband article was brown sugar or heroin and the quantity of heroin seized by the prosecution is also required to be established. Mr. Agrawal, for that purpose, relied upon a judgement in the case of Sagar Singh v. State (Govt. of NCT) of Delhi reported in 2006 (4) Crimes, 126 and also referred to Exh.97 and report of FSL at Exh.95 and submitted that as per the report of FSL, the percentage or purity of the morphine is not determined. Therefore, the contraband article seized from the house of accused No. 1 cover the heroin upto what extent or the purity has not been established by the prosecution. He also referred to the deposition of Mr. Mohindersingh Jageram Dahiya, PW-6, at Exh.130. Mr. Agrawal referred to the chemical analysis report of FSL, Ahmedabad at Exh.95 and chemical analysis report from CRCL, New Delhi at Exh.97 and strenuously submitted that it is not clearly determined in the said reports as to the percentage of morphine, which would make the article to fall and cover as heroin. He, therefore, submitted that it cannot be said that the entire quantity was that of heroin. Mr. Agrawal strenuously submitted that it is well accepted that an article like heroin is very expensive and costly and it is adulterated in other drugs and thereafter, the entire big quantity is sold. Therefore, at the time of seizure, whatever quantity has been seized and recovered was not entirely heroin and it could have been adulterated or mixed with other article and therefore, the percentage or purity of morphine has not been clearly established. He submitted that the entire quantity cannot be said to be heroin, which would result in conviction and sentence imposed. Mr. Agrawal strenuously submitted that the amendment in the NDPS Act has brought about the changes to provide about proportionality for the sentence based on the quantity of such contraband article seized or recovered. The NDPS Act itself has categorised personal consumption, small quantity and commercial quantity and as provided in the notification specifying this aspect, the small quantity and commercial quantity mentioned in the table as per Section 2 of the NDPS Act is required to be considered and if purity or percentage of morphine is not established, the entire quantity recovered and seized from accused No. 1 cannot be said to be heroin, which would attract the punishment imposed upon him and in fact, it is required to be considered in light of the schedule appended to the notification and the punishment has to be proportionate, as provided therein. In absence of any expert opinion, the Court cannot come to the conclusion that the entire quantity was heroin.
5.4 Mr. Agrawal submitted that the statement under Section 67 of the NDPS Act cannot be recorded by NCB Officer as he has no power and it should have been recorded by the Judicial Officer, as required under the Code. It was strenuously submitted that the accused are not bound to give any confessional statement, however, if at all it has been recorded, then, it ought to have been recorded before a magistrate, as provided under the Code. He submitted that the statement under Section 67 of the NDPS Act recorded by NCB Officer cannot be treated at par. He submitted that in the former case, when the statement is recorded by the Judicial Officer and if the person tells lies, he can be prosecuted.
5.5 Mr. Agrawal strenuously submitted that the manner in which the statements are recorded, is nothing but legal jugglery. He emphasised that time consumed in service of the summons and other aspects is required to be considered in light of the evidence.
5.6 Mr. Agrawal submitted that after the seizure, movement and seal of the contraband article or muddamal is also very relevant. It was submitted that some responsible officer should take it and the movement of such muddamal has to be established, coupled with the fact that it was not in a sealed condition, whereas in the facts of the present case, as can be seen from the evidence, the entire procedure followed by the prosecution raises doubts. Mr. Agrawal strenuously submitted that the go-down register maintained by NCB is not produced on record, though it is claimed that the muddamal recovered was kept with NCB in the go-down. It was strenuously submitted that till it is produced before the Court, it is to be established that it was in a sealed condition and in the custody of the responsible officer, whereas, as can be seen from the records, even when it was sought to be produced, there was some delay stating that the Nazir had not accepted, but, that has not been explained. Mr. Agrawal referred to and relied upon a judgement of the Honourable Apex Court in the case of Valsala v. State of Kerala reported at .
5.7 Mr. Agrawal referred to the charge framed at Exh.24 and submitted that the charge is not properly framed. He submitted that the charge is for the offence under Section 29 of the NDPS Act and the charge refers to only qua accused No. 2 and no specific incident is mentioned, nor time and date are mentioned, which would cause prejudice to the case of the defence. It was submitted that defective charge is an illegality and not an irregularity. It was submitted that accused No. 2 is charged with the offence under Section 29 of the NDPS Act while other accused are not specifically charged and therefore, the whole charge is defective.
5.8 Mr. Agrawal submitted that the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 has not been properly recorded inasmuch as it is not an empty formality to be observed as a ritual, but, it is only with a view to provide an opportunity to the accused to meet with the allegations against him whereas in the facts of the present case, the same has not been properly recorded. For that purpose, he referred to some of the statements of the accused under Section 313 of the Code and tried to emphasis that the common questions are posed, which would suggest that it is not properly framed and recorded.
5.9 On the aforesaid premises, it was submitted by Mr. Agrawal that the impugned judgement and order convicting and sentencing accused Nos. 2, 3 and 4 deserves to be quashed and set aside by allowing the appeal and thereby acquitting accused Nos. 2, 3 and 4 of the offence, with which they were charged. He, therefore, urged to allow the appeal.
6. Mr. R. C. Kodekar, learned Additional Public Prosecutor, read the impugned judgement and order all through out. According to him, there is no infirmity or illegality committed by the learned trial Court in passing the impugned judgement. The learned trial Court has considered the evidence in its true and proper perspective and reached to the just and proper conclusions, which do not call for any interference of this Court in these appeals filed by the accused. He, therefore, urged to dismiss the appeals.
7. Ms. Vasavdatta Bhatt, learned Counsel appearing for Narcotics Control Bureau, has also taken the same stand as by Mr. R. C. Kodekar, learned APP, and submitted that the learned trial Court has recorded a finding to the effect that the statutory provisions contained under the NDPS Act have been strictly followed by NCB. She, therefore, submitted that the impugned judgement and order does not call for any interference of this Court. Besides this, she has also tendered written submissions, which is taken on record.
8. This Court has considered the submissions advanced by the learned Advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned Advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme Court while dealing with NDPS cases, this Court has examined the entire evidence on record for itself independently and considered the arguments advanced on behalf of the accused persons and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence.
9. In view of the rival submissions and on appreciation of the material and evidence on record, it is required to be appreciated and considered as to whether the impugned judgement and order of conviction is required to be interfered with.
10. At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained under the NDPS Act are stringent and punishment thereunder is harsh, therefore, as per the settled principles of criminal jurisprudence, the Court of law must insist on the strict compliance of the safeguards provided under the statutory provisions contained thereunder.
11. In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat . In paragraph-1 of the said judgment, the Honourable Supreme Court has observed as under:
The statement of objects and reasons of the NDPS Act categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the statute so as to be in tune therewith.
12. In view of the stringent penal provisions and harsh punishment provided thereunder and in view of the observations made by the Honourable Supreme Court in the above referred to judgment, we have to find out as to whether in the instant case, strict compliance of the safeguards provided under the statute have been observed by the Police personnel during the course of the raid and seizure of the contraband article.
13. Though the submissions have been made that the learned City Sessions Court, Ahmedabad City had no jurisdiction, this point was urged and an application - Exh.2 was given raising the dispute about jurisdiction, which was rejected by the learned Principal Judge, City Sessions Court, Ahmedabad vide order dated 9th January, 2002, which was carried further in revision before the High Court by way of filing Criminal Revision Application No. 85 of 2002. The said revision application has also been rejected, as admittedly stated by the learned Advocates appearing for the parties. Therefore, the said submission does not survive.
14. The first contention, which has been much emphasized, referring to the involvement of two agencies, namely, NCB & ATS, in the investigation of the offences impute a motive that it is only with an intention that the statements of the accused persons recorded could be made admissible under Section 67 of the NDPS Act, that NCB has been involved. If the statements are made before the NCB officers, then only it could be made admissible under Section 67 of the NDPS Act, otherwise, it would not be admissible in evidence. The contention which has been raised is devoid of merit and without any substance. As it transpires, the case is with regard to cross-border illegal smuggling and trafficking/transportation of contraband articles like heroin and as it has been stressed, the modus operandi or entire conspiracy for the illegal smuggling or trafficking of contraband articles has been that its smuggling is broached in India and thereafter, it is routed to United Kingdom or Mauritius. As the secret information has been received that a conspiracy for illegal smuggling and trafficking/transportation of contraband articles like heroin has been hatched, operations have been carried out by two agencies in a co-ordinated manner, there is no reason why such agencies like NCB and ATS, which have been specially set up for such purpose of combating illegal smuggling and trafficking of drugs and contraband articles, cannot jointly undertake such operations. On the other hand, the ATS is set up only for the purpose of combating terrorist activities and are carrying out their operations jointly or in a co-ordinated manner to combat such conspiracy. Terrorism is a global phenomenon, so also is drug trafficking. Such activities are also carried out in a widespread manner and therefore, the local police may not have sufficient information, resources or infrastructure to combat and deal with such crimes. It is under these circumstances that such special cells are set up to combat and deal with such widespread offences which have been spread as a part of the conspiracy not confined to one region or country but even outside the country. Such nefarious activities are carried out in a very organized, systematic manner which can only be detected with co-ordinated efforts of the agencies concerned and such offences can be investigated only by such specialized cells set up for the very purpose of combating the same. Further, it is also a fact that the resources or money generated by such nefarious activities of illegal smuggling and trafficking of contraband articles are diverted for terrorist activities across the countries and there are close links between such activities and the groups which are indulging in such kind of nefarious activities. It is for such reasons that the investigation has been carried out in a co-ordinated manner by two agencies like NCB and ATS. Therefore, the submission that it is only with an intention that the statements of the accused persons recorded during the investigation could be admissible under Section 67 of the NDPS Act that the two agencies are involved, is devoid of any merits.
15. The background of the case and the facts narrated hereinabove, as unfolded by the prosecution case, is that a secret information at Exh.135 was received by Mr. K.C. Chudasama, Police Inspector, ATS, Gujarat State, about the illicit trafficking of narcotics drugs and psychotropic substance (brown sugar) in a truck bearing Registration No. RJ-04-G-1305, which was forwarded to the Zonal Director, NCB, Ahmedabad by the Deputy Inspector General of Police (Operations), ATS, Gujarat State, Ahmedabad with a forwarding letter. Thereafter, the information received was reduced in writing and intimated to the higher officer i. e. Deputy Inspector General, ATS. It is on the basis of this information that the Deputy Inspector General (Operations), ATS, addressed a letter at Exh.136 to the Zonal Director, NCB for a joint action on the basis of the said secret information of movement of narcotic substance (brown sugar). The communication at Exh.136 from the Deputy Inspector General of Police (Operations), ATS, to the Zonal Director, NCB, Ahmedabad clearly refers to the fact that Mr. K.C. Chudasama, Inspector, ATS has received a specific information of movement of narcotics in a truck bearing Registration No. RJ-04-G-1305 and therefore, a joint operation was suggested. It is on the basis of this information that a watch was kept for the truck bearing Registration No. RJ-04-G-1305, which was suspected to carry the consignment of the narcotic drug (heroin/brown-sugar). It is the case of the prosecution that the said truck was carrying the consignment of heroin to be delivered at Bharuch, but, due to some reasons, the consignment of narcotic drug could not be delivered at Bharuch and the truck was returning back and therefore, as it was going towards Ahmedabad passing through Pirana Sarkhej, a joint team of ATS and NCB Officers kept a watch and intercepted the truck. The said truck when was intercepted, it was driven by the driver - Ashuram Durgaram - accused No. 4 and the person sitting besides him was Derajram Ravaram Jat - accused No. 3. During the course of interrogation, statements of both the accused were recorded under Section 67 of the NDPS Act and it was revealed that accused No. 3 - Derajram Ravaram knows one master - accused No. 2 and he was introduced to this master by one Padmaram having his STD booth at Badmer, Rajasthan and that master told him that he is also known as Mohan as well as Hemaram Chaudhary. He has further stated that he used to meet the master at STD telephone booth having Telephone No. 20855, and the main business of the master had been dealing in heroin and the master offered him Rs. 5,000/- per trip for carrying heroin powder. It is further revealed that on 27th June, 2001, he met Hemaram Chaudhary on the STD booth where Hemaram said to them that four packets were to be taken from Badmer to Bharuch (Gujarat) and he gave him Rs. 10,000/- for carrying the heroin, out of which he was to give Rs. 5,000/- to the truck driver. Therefore, he requested his friend Ashuram Chaudhary, accused No. 4, to allow use of his truck for the purpose and that is how, the truck bearing registration No. RJ-04-G-1305 was utilised and on 27th June, 2001 at 10:00 p.m. Hemaram Chaudhary, accused No. 2, met him on the road at about 30 kms. away from Badmer and accused No. 2-Hemaram Chaudhary went somewhere in the dark and thereafter came back with one bag which was having four packets of heroin, which he gave to accused No. 2, Deraj Ravaram Jat, which he is said to have concealed on the rear side of the truck. It is also revealed that when they reached Bharuch for delivery of the consignment, as accused No. 1, Iqbal Moosa Patel, was not available, they were returning back to Badmer (Rajasthan). For that purpose, they had contacted Hemaram - accused No. 2 on telephone No. 20855, but, as they could not contact him, they started back to Badmer. It is on the basis of this information and further revelations made by accused Nos. 3 and 4, for which their statements under Section 67 of the NDPS Act were recorded, that it transpired that a conspiracy was hatched for interstate transportation and sell of narcotic and psychotropic substance (brown sugar and heroin), in pursuance of which accused Nos. 3 and 4, as stated above, had started from Badmer, Rajasthan for its delivery at Bharuch, Gujarat and when they could not deliver it to accused No. 1, they were returning and were intercepted, and on the basis of further revelations of the secret information again received that in furtherance of the said conspiracy, other persons are also involved and therefore, a raid was carried out on 7th July, 2001 near Village: Varadia, Khadaki Street, Taluka & District : Bharuch and heroin to the tune of 3.056 kgs. and cash of Rs. 1,17,500/- were seized from the residence of accused No. 1- Iqbal Moosa. It was further revealed that he was getting this consignment from Master @ Hemaram Chaudhary-accused No. 2 and one Bhaikhanbhai, both residents of Badmer, Rajasthan. It is also revealed by accused No. 1 admitting about his purchase of brown sugar/heroin from the master and Bhaikhanbhai in the month of March-2001, out of which he had already sold one packet to one Shakur, a resident of Mauritius, and the remaining three packets of brown sugar/heroin were seized by NCB Officers on 7th July, 2001 when the house was raided and the seizure was made as above. It is further revealed that one Yusuf Bunglawala, a resident of United Kingdom, is alleged to be the main person of the syndicate and they were receiving the brown sugar from Pakistan from one Aminbhai @ Hajisaab, a resident of Dubai in India and part of this system, they were sending to Mauritius through the crew members of cargo passing Port Louis and in the second channel, this substance was sent to Bangladesh through the land border through the carriers and eventually, it was sent to United Kingdom for the ultimate destination for Yusuf Bunglawala.
16. As deliberated and discussed in the impugned judgement and order by the learned Additional Sessions Judge, the aspect of the conspiracy was held to be proved. The main focus of the submissions made by the learned Advocates in the present appeals are that NCB was involved only with a view to see that the statements made by the accused are made admissible under Section 67 of the NDPS Act, which would otherwise not have been admissible had these operations been carried out by ATS Officers. Further, emphasising on the aspect of recording of the statement under Section 67 of the NDPS Act, it was submitted that whether the same could be made admissible in evidence in light of it being not voluntary and it having been recorded under pressure, threat or coercion. However, one is required to consider while appreciating and scrutinising the evidence brought on record as to whether the offences under the NDPS Act can be said to have been established or proved de hors the statement recorded under Section 67 of the NDPS Act. In other words, even if it is accepted for the sake of argument that the confession statement under Section 67 cannot be relied upon as the sole basis for conviction without corroboration, whether the material and evidence, as discussed hereinafter, including recovery of the incriminating article/heroin and arrest pursuant to the revelations made, would establish the alleged offences and also the conspiracy.
17. Before focusing on this aspect, the moot question which is required to be considered is the aspect of the conspiracy. On reappreciation and scrutiny of the evidence, which has been relied upon threadbare by the learned Advocates appearing for the accused persons and which has also been discussed and dealt with by the learned Additional Sessions Judge in the impugned judgement, it does not leave any room for doubt that both the transactions, that is, the raid regarding interception of the truck bearing Registration No. RJ-04-G-1305 at Pirana, Ahmedabad on 29th June, 2001 and the subsequent raid carried out at the house of accused No. 1 on 7th July, 2001 at Bharuch, were interlinked and it was the part of the same transaction or conspiracy. Therefore, on appreciating the evidence threadbare and though various submissions have been made trying to focus on different aspects like non-compliance of the mandatory provisions of the NDPS Act or minor discrepancies in the depositions of the two main prosecution witnesses, namely, Mr. Bhalla and Mr. Tomar, at Exh.81 and Exh.119, and also admissibility of confession statement recorded under Section 67 of the NDPS Act, the same are devoid of merits.
18. The entire evidence is to be read and appreciated in light of the background which will make it more than clear the thread of the common motive or conspiracy in the entire transaction and it is on the basis of this one transaction and the information received or information revealed by the accused during the course of investigation, that has led to a further clue for the investigation and it is on the basis of such information that further raid on 7th July, 2007 was carried out and the seizure of huge quantity of heroin of 3.056 kgs. along with cash of Rs. 1,17,500/- etc. was made from the house of accused No. 1. Therefore, in light of this background and in particular, recovery of the narcotic drug (heroin) at the time of raid on 29th June, 2001 when the truck was intercepted and recovery of narcotic drug (heroin) from accused No. 2 and also seizure of narcotic drug (heroin) from the house of accused No. 1 on 7th July, 2001 when the further raid was carried out at his residential house in Bharuch, is required to be considered as the part in the entire transaction or conspiracy.
19. On the aspect of the charge for the offence of conspiracy under Section 29 of the NDPS Act, which provides for the punishment for abetment and criminal conspiracy, it is pertinent to note that the provision in the special statute itself is made for the offence of criminal conspiracy with a further clarification that notwithstanding anything contained in the Indian Penal Code, the accused shall be punishable for the punishment provided for the offence. Therefore, the conspiracy to commit such offence of trafficking in drugs and narcotic substances, which has been viewed seriously, is required to be considered. However, on the aspect of offence of conspiracy under Section 120B of the Indian Penal Code, 1869 ("IPC"), it is required to be appreciated that the law on this aspect has been much emphasised referring to the meeting of mind and it has also been deliberated and discussed elaborately in the judicial pronouncements of the Honourable Apex Court from time to time, which is required to be considered in the background of the facts of the case stated hereinabove. What is required to be appreciated is the agreement between the accused for the common object, namely, crime or unlawful activity of trafficking in the drugs, in the background of the fact that in these days of modern technology and fast means of communication, which has wiped out the boundaries of sovereign countries or even different states within the country. Therefore, in the modern times, with fast means of communication and modern technology providing for means of communication for the conspiracy, the ingredients of the conspiracy are required to be considered bearing in mind this aspect, which would assume a different meaning and while interpreting the provisions of law, the Court cannot be oblivious of this aspect. It is in these circumstances for appreciating and considering the evidence regarding the offence of conspiracy that one has to focus on new technology and organised criminal activities, which are wiping out the barriers of the geographical boundaries for committing the crime even without remaining present at a particular place. With the aid of the new technology, the co-accused or persons involved in the object of criminal conspiracy like terrorism or drug trafficking, could conceal the conspiracy and give it a final shape without their presence at a particular destination at a particular point of time sitting at different places all over the world.
20. The Honourable
similar circumstances regarding the arms and ammunition for the terrorist activities, has considered the aspect of offence under Section 120B of IPC. It was a case under TADA and while considering the offence under Section 120B of IPC, the Honourable Apex Court has laid down the guidelines regarding the burden of proof and weightage of evidence to be considered. The Honourable
In that case, the Court also referred to the following observations in Miller v. Minister of Pensions (1947) 2 All ER 272 by Lord Denning, J.:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt....
Further, it has been observed that,
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land.
21. Again, the Honourable
that:
...Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and Ors. .
Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish....
22. Therefore, the evidence brought on record is required to be appreciated in light of the observations and guidelines of the Honourable Apex Court, elaborating on Sections 120A and 120B of IPC. The criminal conspiracy, as defined under Section 120A of IPC, is as under:
Definition of Criminal Conspiracy.- When two or more persons agreed to do or cause to be done-
(i) an illegal act, or
(ii) an act which is not illegal by illegal means such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120B of IPC prescribes the punishment for the criminal conspiracy, which by itself is an independent offence punishable separately from the main offence. The offence of criminal conspiracy can be by direct or circumstantial evidence. The provisions of Section 10 of the Evidence Act has introduced the principle of agency and it will be attracted only when the Court is satisfied that there is a reasonable ground to believe that two or more persons have conspired to commit the offence, that is to say that there should be prima facie evidence that the person was a party to the conspiracy before his act can be used against the co-conspirator. The same analogy would be applicable for the offence under Section 29 of the NDPS Act.
23. The Honourable
In reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words 'in furtherance of' in the English law; with the result, anything, said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is relevant fact only 'as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
The Honourable
In short, the section can be analysed as follows:
(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy;
(2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other;
(3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them;
(4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and
(5) it can only be used against a co-conspirator and not in his favour.
24. The Honourable
Further, referring to the statements under Section 313 of the Code of Criminal Procedure, the Honourable Apex Court has made the observations that 'when questioned under Section 313 of the Code, the appellant did not even explain or qualify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything.'
A useful reference can be made to the judgement of the Honourable
referring to the provisions of Section 106 of the Evidence Act and the burden of proof, has made the observations referring to the earlier judgement of the Supreme Court that 'it
is necessary to keep in mind Section 106 of the Evidence Act, which says that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.'
25. The Honourable
regarding the conspiracy and has discussed the aspect of conspiracy and essential ingredients or elements which are required to be proved by the circumstances. The Honourable
26. The Honourable
These observations have to be borne in mind to appreciate the submissions made by the learned Advocates for the defence about the nexus or actual role or chain of evidence and the circumstances much emphasising that even if for the purpose of offence of conspiracy circumstantial evidence may be considered, the chain is not established. However, for the purpose of the offence of conspiracy under Section 120B and Section 29 of NDPS Act, the circumstantial evidence has to be considered and the inference can be drawn with regard to involvement, role, etc. depending upon the totality of the evidence brought on record and it is the cumulative effect of the entire evidence, which has to be considered. It is not necessary that there has to be every evidence for the every link inasmuch as for the offence under conspiracy even the participant is not expected to be involved at every stage or is expected to be aware about every part of conspiracy and therefore, there may not be any evidence as sought to be canvassed that the chain has to be complete. This submission with regard to the complete chain of the circumstantial evidence is misconceived in context with the offence of conspiracy under Section 120B of IPC. The same analogy would apply for offence under Section 29 of the NDPS Act.
27. The Honourable Apex Court, in its judgement, in the case of Esher Singh v. State of Andhra Pradesh reported in AIR 2004 SC 3030 has elaborately again discussed on the aspect of minimum and essential ingredients of conspiracy and it is observed that:
For the offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done illegal act, agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation any agreement to commit the offence. The conspiracy consists not merely an intention of two or more but any agreement of two or more to do unlawful act by unlawful means.
In this very judgement, the Honourable Apex Court has also referred to and quoted Halsbury's Law of England, 4th Edition, Vol. XI, p.4458 and referred to English law as to conspiracy and observed that,
The conspiracy consists in the agreement of two more persons to do an unlawful act or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine both in the discretion of the Court.
It has been further observed that SPrivacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
28. The Honourable
Our attention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Agarwal's case (1993 AIR SCW 1866) wherein Ramaswamy, J. stated that the law has developed several or different models or technique to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other, a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. The illustration given was what is done in the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen, retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers know that the middlemen must sell to retailers; and the retailers know that the middlemen must buy from importers. Thus the conspirators at one end at the chain know that the unlawful business would not, and could not, stop with their buyers, and those at the other end know that it had not begun with their settlers. The action of each has to be considered as a spoke in the hub - there being a rim to bind all the spokes together in a single conspiracy.
Therefore, in light of the observations and guidelines laid down by the Honourable Apex Court as regards conspiracy and the material and evidence on record, including the statements recorded under Section 67 of the NDPS Act, on the basis of which, the recovery and has been made by making a panchnama, the conspiracy is established beyond any reasonable doubt and there is no room left for any doubt that the accused persons have been involved in the conspiracy, which was for illegal trafficking of the narcotic drugs, as discussed hereinabove, and the operations have been carried out in furtherance of the conspiracy. Moreover, accused No. 1 is admittedly convicted by the Courts in
The Honourable Apex Court has discussed the law in England and in India that it has been now at par and therefore, in light of these observations and discussions, the moot question which is now required to be considered is whether the material and evidence on record, as discussed hereinabove, and in light of the observations and the propositions and guidelines laid down by the Honourable Apex Court, would lead to the conclusion about the conspiracy and as observed and held rightly by the learned Additional Sessions Judge, the answer has to be in the affirmative. It is in this context that once the conspiracy is established, the recovery or seizure of the contraband article - heroin would be a relevant fact and de hors the statement or confessional statement recorded under Section 67 of the NDPS Act made admissible or not. The prosecution has established the case against the accused. It is required to be mentioned here that in case prima facie evidence regarding the conspiracy and seizure of the contraband narcotic drug/heroin is established, the burden will shift on the accused to give any plausible explanation, which would be otherwise if such an explanation is not coming forth based on some basic material, the evidence, as discussed above, and circumstantial evidence, suggest that such incriminating circumstances will lead to the inference to be drawn as regards the conspiracy and also the offence alleged against the accused persons. It is also required to be noted that it is well accepted that such organised crime made with the deep rooted conspiracy and trafficking of drugs and the money generated are again utilised for another form of organised crime like terrorist activities. Therefore, the material and evidence on record is sufficient to get the nexus and involvement of the accused persons regarding the charges levelled against them.
29. Another facet of the argument with much emphasis regarding non-compliance of the mandatory provisions of the NDPS Act is required to be considered in light of the discussion and appreciation made in the impugned judgement and order.
30. Though the submissions have been made that the mandatory provisions of Sections 42 and 50 of the NDPS Act have not been complied with, a close scrutiny, appreciation and evaluation of the evidence, as reflected in the judgement, would make it clear that the arguments are devoid of any merits.
31. The provisions of Section 42 of the NDPS Act empower the authorised officer for entry, search, seizure and arrest without warrant. Section 42(2) refers to such information, which is required to be reduced in writing as regards the grounds for his belief under the proviso and a copy of which is required to be sent to his immediate superior. Mr. Tomar, in his deposition at Exh.119, has specifically stated that he himself was present at the time when the raid was carried out at the house of accused No. 1 and Mr. Bhalla had informed him. Therefore, there is sufficient compliance with the provisions of law. The broad object of such provision is that any action taken on the basis of such secret information has to be reported to the higher authority as the wide powers conferred for search, seizure and arrest without warrant, may not be abused and in order to provide safeguard to the accused or the culprit, the said provision has been made. On this basis, it cannot be said that there has to be a specific formal communication routed through the office even if the higher officer or the superior officer himself is present there before such search is carried out. Moreover, Mr. Tomar, PW-5, in his deposition at Exh.119, has also referred as to what transpired at the house of accused No. 1 corroborating the deposition of Mr. Bhalla. Mr. Bhalla, PW-5, in his deposition at Exh.81, has stated that when they went to the house of accused No. 1, they met the person in the veranda, who is said to be the same Iqbal Moosa, and thereafter, he gave his introduction and informed about the search of the house and search of his person. He has also stated that he informed accused No. 1- Iqbal Moosa that search of his person is to be carried out and he has a right to be searched in presence of a gazetted officer or magistrate and he was also informed that Mr. Pavansinh Tomar, Zonal Director, NCB, is a gazetted officer before whom if he wishes, the search can be carried out. The said information is said to have been given to him in writing, which is at Exh.83. As it is evident, it is in Hindi referring to Section 50 of the NDPS Act that as per the provisions of the NDPS Act, he has been given this information about his right and there is also an endorsement. Thereafter, the search of the person of accused No. 1 is said to have been carried out. The deposition of Mr. Tomar, PW-5, at Exh.119, corroborates the evidence of Mr. Bhalla as regards compliance of the provisions of Section 50 of the NDPS Act inasmuch as he has also stated in his deposition that when they met accused No. 1, Iqbal Moosa, in his veranda, an offer under Section 50 was made and Mr. Bhalla had intimated in writing about his right to be searched in presence of the gazetted officer. Therefore, it is evident that the provisions of Section 50 of the NDPS Act about the right of the accused to be informed that the search of his person could be carried out in presence of the gazetted officer is required to be made and thereafter, the search of the person was carried out, as provided under Section 50 of the NDPS Act, in presence of the magistrate or gazetted officer.
32. Similarly, the submissions made with regard to non-compliance of the mandatory provisions of the NDPS Act when the house of accused No. 1, Iqbal Moosa, was raided for seizure of heroin to the tune of 3.056 grams and cash of Rs. 1,17,500/-, and that no secret information has been produced and no report has been made, are again misconceived. Mr. Mohnish Bhalla, PW-4, in his deposition at Exh.81, who was Intelligence Officer on Deputation with NCB, has clearly stated that at about 7:30, they reached the house of accused No. 1-Iqbal Moosa, who was present there in the veranda and he is said to have stated his name to be Iqbal Moosa Patel. Thereafter, he gave his identification and explained as to what had transpired. He has further stated in the cross examination explaining that on 6th July, 2001, neither Mr. Tomar nor his higher officer was available in the office and therefore, a sealed cover - Exh.82, which was prepared for handing it over to Mr. Tomar, was delivered by him on 7th July, 2001 and he had retained that cover with him till then. This evidence has been corroborated and supported by the deposition of PW-5, Mr. Tomar, Zonal Director, NCB, at Exh.119. Mr. Tomar in his deposition at Exh.119 referring to this aspect has stated that he was present when the search was carried out at the house of accused No. 1-Iqbal Moosa and corroborating this evidence, he has stated in his cross examination that the information by Mr. Bhalla, he does not remember as to whether he had informed Mr. Bhalla that he should come with that secret information. However, he has specifically stated that he does not know that Exh.82 and copy thereof were in the same cover or separate cover, but, he has specifically stated that he was present and Mr. Bhalla had given that information as regards further raid at the house of accused No. 1. This further corroborates and lend support to the deposition of Mr. Bhalla that as nobody was in the office on the previous day, he could not pass it on to the higher officer i.e. Mr. Tomar, and he had retained the information with him, which he passed on to his higher officer, Mr. Tomar, on 7th July, 2001. Mr. Tomar, in his deposition at Exh.119, has stated and confirmed on this aspect, corroborating the evidence of Mr. Bhalla, that he had been informed and he was present at the time of raid at the house of accused No. 1 - Iqbal Moosa on 7th July, 2001.
33. Again, this provision is made as and by way of safeguard as observed by the Honourable Apex Court time and again and this provision has been made only with a view to give credibility to any such search of the person carried out in presence of the gazetted officer so that it is not abused and further report under Section 57 of the NDPS Act is required to be made to the higher authority whenever any person makes the arrest or seizure under the NDPS Act. Mr. Tomar, PW-5, in his deposition at Exh.119, has also stated that after search of person of accused No. 1 was carried out, the report under Section 57 of the NDPS Act was made to the higher authority and the said report made by the Zonal Director, Mr. Pavansinh Tomar, is at Exh.123. The report at Exh.123 is made under Section 57 of the NDPS Act with regard to seizure of 3.056 kgs. of brown sugar (heroin) on 7th July, 2001 from the house of accused No. 1-Iqbal Moosa. The said report under Section 57 of the NDPS Act made by the Zonal Director, Mr. Tomar at Exh.123 clearly refers to the fact that the search was carried out and in fact, he has further clarified specifically that a report under Section 57 of the NDPS Act has been received by him from the seizing officer, that is, Mr. Bhalla, who carried out the search and seizure in his presence. However, as he himself was present, at the time of search and seizure operation, he by abundant caution made a report under Section 57 to his still higher authority, i.e. Deputy Director General, Narcotics Control Bureau, (Hqrs.),
34. A useful reference can be made to the observations made by the Honourable Apex Court in the case of Sajan Abraham v. State of Kerala reported in AIR 2004 SC 2796. Referring to the very mandatory provisions of the NDPS Act, somewhat similar submissions or contentions were raised regarding non-compliance of Sections 42 and 50 that the officer was required to send the information forthwith to his immediate superior and as the same was not communicated to his immediate superior, it would amount to violation of Section 42. The Honourable Apex Court dealing with this contention has observed as under:
In construing any facts to find, whether prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature, time and again, has made some of its provisions obligatory for the prosecution to comply, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The Court however while construing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.
35. Similarly, in this judgement referring to the provision of Section 57 of the NDPS Act, the contention was raised that the obligation is cast on the prosecution. While making the arrest and seizure, the officer is required to make a full report of all particulars within 48 hours to the immediate superior and as that has not been done and the communication is not in the form of the report, the trial is vitiated. This contention has also been negatived observing that it is not in dispute that the communication has been made to the higher authorities and it was accepted as substantial compliance. It has been observed that "this constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the accused. This section is not mandatory in nature when substantial compliance has been made as in the present case, it would not vitiate the prosecution case.
36. In the facts of the present case also, as discussed hereinabove, Mr. Tomar has specifically made the report to the higher authorities i.e. Deputy Director General, NCB (Hqrs.), New Delhi under Section 57 of the NDPS Act as regards the seizure made from the truck at Ahmedabad on 29th June, 2001 as well as seizure made at the house of accused No. 1 at Bharuch on 7th July, 2001, which are available on record at Exhs.122 and 123. In this report, he has also made it clear that it is by way of abundant caution that he has made report to the higher authority at New Delhi as he has already received the report under Section 57 of the NDPS Act from the seizing officer, but, as he was present at the time of seizure, he has made this report to the higher authority i.e. Deputy Director General, NCB (Hqrs.), New Delhi for compliance under Section 57 of the NDPS Act.
37. The learned Advocates appearing for the defence read the depositions of Mr. Mohnish H. Bhalla, PW-4 at Exh.81 and Mr. Pavansinh Tomar, PW-5 at Exh.119 and tried to highlight about the contradictions or discrepancies in support of their submissions. However, the depositions, as discussed above, clearly suggest about the compliance of the mandatory provisions of Sections 42 and 50 of the NDPS Act and the report under Section 57 of the NDPS Act.
38. Another facet of the argument with regard to contradictions or discrepancies in the depositions of Mr. Bhalla, PW-4 at Exh.81 and Mr. Tomar, PW-5, at Exh.119, are also without any substance or merit. Again in support of the submissions with regard to the material contradictions in the evidence/depositions of both important witnesses, the learned Advocates for the defence have submitted at length with much emphasis and a close scrutiny of the evidence in detail. However, the material contradictions in the depositions of two important witnesses are, in fact, discrepancies with regard to minute details, i.e. particular time when they reached the place. Similarly, much emphasis is given with regard to the travel of Mr. Tomar, PW-5, at Mumbai and his presence as to when he went there, how he travelled back, and it is also submitted with much emphasis that accused No. 1 was, in fact, brought from
Though the submissions have been made with regard to the fact that the intimation given to the accused does not bear his signature, which has been explained by the witness - Mr. Oza in his deposition at Exh.42, after the arrest of accused Nos. 3 and 4, the signature of accused No. 3 was inadvertently taken in the arrest memo of accused No. 4 and vice versa.
39. Moreover, on the basis of the secret information, when the joint operation was carried out by NCB and ATS Officers, simultaneously, that reached to Rajasthan and the statement of accused No. 2 - Hemaram Chaudhary, who is alleged to have involved in the drug trafficking, has been recorded under Section 67 of the NDPS Act and it was revealed that the consignment of heroin has been sent for delivery to Bharuch and as it could not be delivered at Bharuch, the same truck bearing Registration No. RJ-01-G-1305 with accused Nos. 3 and 4 is returning back to Badmer, Rajasthan via Ahmedabad. It is on the basis of this secret information that the truck was intercepted and recovery or seizure of heroin to the tune of 4.114 kgs. has been made from the bag concealed in the seat of the truck belonging to accused No. 3, which was driven by accused No. 4. Thereafter, it is on the basis of interrogation and revelations while recording the statement under Section 67 of the NDPS Act, that a further clue about accused No. 1 - Iqbal Moosa was available to the investigating agency and it is on the basis of this information that the raid was carried out on 7th July, 2001 at the house of accused No. 1 at Village: Varadia, Taluka & District: Bharuch and the seizure of heroin to the tune of 3.056 kgs. and cash of Rs. 1,17,500/- was made, for which a panchnama was also drawn. Therefore, this entire evidence, if read in light of the confession statement recorded under Section 67 of the NDPS Act, would make it clear that the recovery or discovery made on the basis of such statements are established or proved facts and once the possession of the narcotic drug/heroin is found, there is no plausible explanation for the same. Therefore, the statements of the accused recorded under Section 67 of the NDPS Act are relevant, which have been reproduced and discussed at length in the judgement in question by the learned Additional Sessions Judge. However, for the appreciation and evaluation of the submissions, the statements recorded under Section 67 of the NDPS Act, which have been referred and discussed in the impugned judgement, are also required to be considered. Therefore, even if there is some discrepancy with regard to some minor details, it will not have much relevance or they would not go to the root of the matter and it cannot be a ground to discard the entire evidence of the witness though much focus has been given on the deposition of Mr. Bhalla and Mr. Tomar to highlight certain minor discrepancies contending that the entire evidence may be discarded or ignored. As discussed above, as such there are no any material contradictions in the evidence of those witnesses, as is canvassed. On the contrary, they have been corroborating on the vital aspects. In this context, the observations of the Honourable Supreme Court in the case of Kalegura Padma Rao and Anr. v. The State of A.P. are required to be considered.
The Honourable
The maxim 'falsus in uno falsus in omnibus' has no application in
Further, it has been observed that,
Stress was laid by the accused - appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of 'falsus in uno falsus in omnibus' (false in one thing, false in everything). This plea is clearly untenable,. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end.
40. The submissions have been made by the learned Advocates for the defence with much emphasis that the statements recorded under Section 67 of the NDPS Act are not admissible in evidence as they are recorded under threat, coercion or pressure and they are not voluntary statements and therefore, they are not admissible in evidence under the Evidence Act. The statements of accused No. 2 at Exhs.47 and 50, statements of accused No. 3 at Exhs.46 and 49 and statements of accused No. 4 at Exhs.45 and 48, as discussed and dealt with in detail, clearly reveal that there was a conspiracy in trafficking of narcotic drug/heroin and in furtherance of which, these two incidents have taken place. The conspiracy, as it is revealed, was with regard to trafficking of the narcotic drug/heroin from Badmer to Ahmedabad and it also refers to the trans-border trafficking of the narcotic drug with the connections with Yusuf Bunglawala at
41. Once the conspiracy is prima facie established, the admissibility of the statement recorded under Section 67 of the NDPS Act is required to be appreciated in light of the well settled principles regarding the confession, though the submissions have been made by the learned Advocate, Mr. Agrawal, that it is not the statement or confession as per the Evidence Act and it cannot be considered in evidence at all.
Further, as regards admissibility of the statements recorded under Section 67 of the NDPS Act, it is well accepted that such a statement recorded under Section 67 of the NDPS Act is admissible in evidence. The provisions of the special law providing the manner and method of recording the statement would be admissible in evidence. The special statutes like NDPS Act, TADA Act, specifically make such provision empowering the officer to call for such information. The general law is reflected in the Evidence Act. The confession made to the police officer cannot be proved against the accused. However, the NDPS Act, as a special statute, empowers the officer and if such information which has been called for is recorded would be admissible in evidence as in case of confessional statement recorded under POTA, TADA or NDPS Act.
42. A useful reference can be made to the judgement of the Division Bench of this Court in the case of Husen Bhenu Malad and Ors. v. State of Gujarat and Ors. reported in 2003 (2) G.L.H. 705 where one of us (A. M. Kapadia, J.) was a party. In the said judgement, the mandatory provisions of the NDPS Act, including Section 67, have been considered at length and it is observed as under:
It cannot be laid down as an absolute rule of law that the statement of an accused recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. To put it differently, there is neither rule of law nor of prudence that the statement cannot be acted upon without corroboration. If the Court is satisfied that the statement is true and voluntary in nature, it can base conviction on it without corroboration. The Court has to scrutinise the statement carefully and must ensure that the statement is not the result of coercion, duress or undue influence.
It is required to be mentioned that the Division Bench has, referring to this provision and the submission made in light of Article 20(3) of the Constitution of India, specifically observed that the inculpatory statements made by the accused under Section 108 of the Customs Act before the Customs Authorities and also under Section 67 of the NDPS Act were recorded when they were not accused of the offence under the NDPS Act and therefore, Article 20(3) of the Constitution of India would not be attracted. The statements having been recorded during the course of investigation or interrogation, would be admissible as per the Evidence Act and the statements recorded during such an inquiry or interrogation under Section 67 of the NDPS Act are not that of the accused within the meaning of Section 24 of the Evidence Act.
43. Similarly, the learned Advocates for the defence have also stated that the panchnamas made are also concocted and statements have also been made that they have been concocted. However, mere statement by itself cannot be accepted without any basis or foundation for such defence. It is well accepted that if any recovery is made in light of the disclosure statement made by the accused or co-accused, it would be relevant fact, which would be admissible in evidence, and it will be a fact or incriminating circumstance against the accused. It transpires that after the raid intercepting the truck bearing registration No. RJ-04-G-1305 was made, accused Nos. 3 and 4 were interrogated where their statements under Section 67 of the NDPS Act were recorded and it was revealed that they had gone for delivery of heroin at the house of accused No. 1 at Village: Varadia, District: Bharuch, on the basis of which further raid was carried out at the house of accused No. 1. It is during such raid that heroin to the tune of 3.056 kgs. and Rs. 1,17,500/- in cash were recovered. This is a fact or circumstance which will be incriminating circumstance for the purpose of conspiracy as well as for the possession and trafficking qua accused No. 1.
44. It is well settled that Section 10 of the Evidence Act is based on the principle of agency operating between the parties to the conspiracy inter se and it is an exception to the rule against the hearsay testimony. If the conditions laid down therein are satisfied, the act done or statement made by one is admissible against the co-conspirators.
45. It is further, deliberating on this aspect, observed by the Honourable
We do not find any such deeming provision in Section 10. No doubt, Section 10 rests on the principle of agency. But, it does not in terms treat the statements made and acts done by one conspirator as the statements or acts of all. Section 10 only lays down a rule of relevancy. It says that anything done or said by one of the conspirators in reference to the common intention is a relevant fact as against each of the conspirators to prove two things: (i) existence of the conspiracy and (ii) that they were parties to the conspiracy.
The Honourable Apex Court has also referred to the Privy Council in Mirza Akbar's case, and though not accepted the submissions canvassed, in fact, has accepted that relevancy of the admission or admissibility of the confession statement and the evidentiary value or the weightage to such fact, cannot be totally kept aside.
46. The word "confession" has been elucidated and defined in a judgement of the Privy Council in the case of P. Narayana Swami v. Emperor Lord Atkin and it is observed that,
Confessions are considered highly reliable, but, at the same time, it has to be deliberate and voluntary confession of the guilt is the requirement and it has to be made with full knowledge of the nature and consequences of such confession.
Therefore, Section 164 of the Code of Criminal Procedure, 1973 lays down the precautionary rules for recording such admissions by the magistrate. However, when the special statutes like TADA Act, NDPS Act, etc. are providing for recording of such statement by the immediate superior officer, the evidentiary value of such confession statement are required to be considered.
47. The Honourable Apex Court in the case of Navjot Sandhu (supra) referring to this aspect has, after considering the manner in which it is recorded vis-a-vis the probable use of force or threat or pressure and the right of the accused under Article 21 or Article 14 of the Constitution of India as regards the human ill-treatment, held that the validity of such provisions has been upheld by the Courts and the Honourable Apex Court has observed that,
In upholding the validity, the Court took into account the legal competence of the legislature to make a law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity and consequences of terrorism and the reluctance of the public in coming forward to give evidence. How far these considerations are relevant in providing for the reception in evidence of the confessional statement recorded by a police officer has not been elaborated.
A reference has been made to the report of the Law Commission and the confession statement recorded in
48. Therefore, even for the sake of assuming without admitting that such statement recorded under Section 67 of the NDPS Act is not a confessional statement admissible in evidence for whatever reasons stated that it was not voluntarily made and that it was recorded under coercion or pressure, still on the basis of such disclosure made if it ultimately led to tracing out the incriminating narcotics drugs/heroin for which the panchnama has been made, would be relevant and admissible evidence, which would stare in the face and therefore, in light of the observations made hereinabove, as regards conspiracy it would be relevant not only for the purpose of conspiracy, but, also to prove the conspiracy and also the circumstances, antecedents and subsequent conducts, which constitute the relevant material, including the discovery of heroin. It would also be relevant to note the observations made by the Honourable Apex Court in a judgement reported in the case of Union of India v. Kuldip Singh reported in 2004 SCC (Cri.) 597, observing that 'when the huge volume or quantity of contraband article is seized like heroin, then, lenient or sympathetic view would be counterproductive in the long run and against the societal interest which needs to be cared and strengthened by a string of deterrence inbuilt in the criminal justice system and sentencing system. It has been observed the object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence.'
49. It is no longer res integra that the statements recorded by the officers empowered under the special statute, whether the Customs Act or NDPS Act, would be admissible in evidence. The Honourable Apex Court in the case of Raj Kumar Karwal v. Union of India , while upholding the constitutional validity of Sections 41, 42, 43, 44, 49, 50A and 57A of the NDPS Act and also the powers of arrest, search and seizure, has discussed and deliberated at length as to the provisions of the special statutes vis-a-vis the Code of Criminal Procedure, and also the powers of the Custom Officers under the Customs Act and it has been observed that such special statutes like NDPS Act has been enacted for control and regulation of the operations relating to narcotic drugs and to combat such activities, the powers have been conferred upon the officers.
50. A useful reference can be made to the observations made by the Honourable Apex Court in the case of Assistant Collector of Central Excise v. Duncan Agro Industries Ltd. and Ors. , for the purpose of confession statement recorded under Section 108 of the Customs Act and its admissibility in evidence. It has been observed referring to the scope of admissibility of the confession statement recorded under Section 108 of the Customs Act that, 'the inculpatory statement made by any person under Section 108 is to non-police personnel and hence, it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the Court in the same manner as confession made by an accused person to any non-police personnel. The Court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a Gazetted Officer must also pass the tests prescribed in Section 24 of the Evidence Act.'
51. In another case of Usmanbhai Chandubhai Mansuri's case, the statement of the accused before the police officer authorised by the Central or State Government under Section 67 of the NDPS Act is held to be admissible in evidence and conviction can be based solely on such a statement. It is also held that the safeguards are required to be observed by the officer recording such statement under Section 67 of the NDPS Act and the only requirement is to ascertain that whether such statement is voluntary or not.
52. Therefore, in light of the settled legal position, much emphasis given by the learned Advocates for the defence about inadmissibility of the confessional statement recorded under Section 67 of the NDPS Act, cannot be readily accepted as devoid of any merits. The submission that such statement is not admissible in evidence at all or that it is not as per the Evidence Act, as sought to be emphasised by Mr. R.M. Agrawal, learned Advocate, is without any substance and in fact, it has been held to be admissible by the Honourable Apex Court. Therefore, the only aspect which requires consideration is that the Court has to be satisfied as regards voluntariness and the manner in which it has been recorded so as to ascertain that such statement is voluntary or not. However, as regards the emphasis given to the manner in which accused No. 1 was allegedly brought to Bharuch and his statement was alleged to have been recorded, for which note has been made by the learned Sessions Court, one is required to look for corroboration thereof and such statement cannot form the sole basis of conviction alone without corroboration. Therefore, as highlighted and discussed hereinabove, the statements recorded under Section 67 of the NDPS Act are admissible in evidence and in fact, accepted also. However, in light of the submissions made with regard to the manner of recording such statement, though admissible in evidence, are required to be considered with reference to corroborative other evidence on record. Further, even de hors such statement recorded under Section 67 of the NDPS Act, whether the case of the prosecution can be said to have been established from the material and evidence on record, the answer has to be in the affirmative in light of the discussion made hereinabove and more particularly, with reference to the evidence about conspiracy, and recovery and discovery made, for which a panchnama is made for recovery of the incriminating article, i.e. narcotic substance, and that would be sufficient to establish the charges with regard to possession and further disclosures made during the course of investigation leading further recovery or discovery and arrest, would also lead to the inference regarding conspiracy.
53. The emphasis made by the learned Advocate for the defence on the aspect of benefit of doubt or so-called loopholes in the investigation or prosecution case is required to be considered in light of the word of caution expressed by the Honourable Apex Court in various judgements given from time to time including the judgement in the case of State of U.P. v. Krishna Gopal and Anr. , wherein
it has been observed that,
The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
Further, it has been observed and quoted that, "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent." The Honourable Apex Court has in this very judgement has also observed as to what would be the doubt and emphasised that the doubt would be called reasonable if they are free from just and abstract speculation and as regards what would constitute a reasonable doubt, it has been emphasised that doubt must be actually substantial doubt as to the guilt of the accused arising from evidence or from lack of it as opposed to mere vague apprehension and it must be a fair doubt based upon the reason and common sense, it must grow out of the evidence in the case.
54. Therefore, the submissions made by the learned Advocates with much emphasis on the inadmissibility of the statement recorded under Section 67 of the NDPS Act that it was not a voluntary statement, but, recorded under pressure and further submission that the entire case is based only on such statement recorded under Section 67 of the NDPS Act is misconceived. At the cost of repetition, as discussed, even if the statements under Section 67 of the NDPS Act are not accepted at their face value as confessional statement, even then, on the basis of the material and evidence and on the basis of such disclosure statement, ultimately the facts or recovery and ultimately recovery and discovery of narcotic drug/heroin by making the panchnama by itself would be sufficient to establish the charges levelled against the accused persons. Further, once the prima facie evidence regarding the conspiracy is established or revealed, in the sense that one after another discovery, recovery and arrest has been made on the basis of the disclosure made during the course of investigation will lead to an unimpeachable inference regarding the conspiracy that they were operating as part of the broader conspiracy and in furtherance of the entire conspiracy, the accused were operating when they were intercepted and arrested or recovery or seizure of the narcotic drug/heroin was made. Another aspect, as discussed hereinabove, with regard to the so-called material contradictions in the evidence particularly, the evidence of Mr. Bhalla, PW4 and Mr. Tomar PW5 is also without any merit.
55. Even if it is assumed for the sake of argument that Mr. Tomar had visited Mumbai and he had recovered and seized the register from the guest house for which, much hue and cry is made, it has very little relevance in light of the evidence as regards the conspiracy as well as recovery and discovery of the incriminating article - narcotic drug (heroin). He has also stated that he may not clarify when it is permissible under the law.
56. Though Mr. Saiyed, learned Advocate for accused No. 1, has raised the contention about the muddamal and panchnama having been concocted and the signature is not obtained, the same is misconceived. The panchnama regarding discovery of the contraband article heroin from the house of accused No. 1 has been proved in light of the deposition of the witnesses examined by the prosecution. The fact that the signature of the accused is not obtained is not much relevant when there is a clear evidence about recovery or discovery of heroin from his house, as discussed above.
57. The last submission made by Mr. Agrawal as regards the quantity and purity of the heroin that out of the entire quantity, morphine was only of a small quantity and therefore, the case would fall under the schedule appended to the NDPS Act and accordingly, the sentence has to be awarded, is also misconceived. Though the submissions have been made by Mr. Agrawal referring to the schedule appended to the NDPS Act and also referring to the report of the FSL at Exh.95 and deposition of Mr. Dahiya at Exh.130 wherein he has stated that the purity or exact percentage has not been made/recorded and therefore, much emphasis is given on this aspect by the learned Counsel, Mr. Agrawal that the benefit should be given to the accused that from the entire quantity, it cannot be presumed that the entire quantity seized could be termed as heroin and it must have been adulterated and the percentage of heroin or diacetylmorphine would be very less, is again misconceived.
58. Though the submissions have been made much emphasising on the deposition of Dr. Dahia, FSL Expert, at Exh.130, when he has stated that he has not examined purity or percentage of the substance and the submissions have been made relying upon a judgement of the Delhi High Court in the case of Sagar Singh (supra), one is required to consider in light of the deposition of Dr. Dahiya as well as report of the FSL. It is evident that the parcels were sent to FSL, Ahmedabad as well as CRCL,
The amendment, which has been brought into force by a notification, which rationalises proportionate punishment with reference to the quantity, is required to be therefore appreciated in light of the ultimate intention of the legislature. Merely because by such notification, there is rationalisation for the punishment with reference to the quantity, the intention and the purpose of the Act cannot be ignored altogether. The schedule or table providing for the proportionate punishment with reference to the quantity refers to heroin and the chemical named for that is diacetylmorphine. The small quantity is 5 gram and the commercial quantity is 250 gm. This itself would suggests that even in this notification or table, while referring to heroin as a narcotics drug, the quantities have been specified bearing in mind the kind of drug and therefore, even for commercial quantity, it is provided as 250 gm.
59. A bare perusal of the provision of the NDPS Act and the notification referred to with regard to different punishments with reference to the quantity, would clearly suggest that the object and purpose of the NDPS Act is to rationalise the punishment with regard to the quantity and type of narcotic substance like heroin, etc. The schedule has prescribed different types of punishments with reference to different quantities qua different types of narcotic substances, in order to provide that if a person is found in conscious possession with the small quantity, he is not to be treated at par with the accused who is dealing in such substance. However, it is nowhere provided that even if the substance, which has been recovered or discovered from the conscious possession of the accused, is belonging to a particular type of narcotic substance like heroin, then, there should be further dissection as regards the contents thereof. Once the narcotic substance recovered from the conscious possession of the accused is established to be a particular type of narcotic substance like heroin, it does not require any further analysis. If the argument that the quantity seized or recovered, which is confirmed to be a particular type of narcotic drug, should not be treated as such, is accepted, then, it would lead to absurdity and it would be contrary to the spirit and provisions of law inasmuch as the NDPS Act has been enacted to combat consumption as well as trafficking of narcotic substance and if such an argument is entertained, it will be counter-productive. The reliance placed by the learned Advocate, Mr. Agrawal, upon the judgement of the Delhi High Court in the case of Sagar Singh (supra), with respect, has no application and the observations are, as discussed above, not in consonance with the provisions of law.
60. The substance in the present case is, in fact, a crude heroin as the expert witness - Mr. Dahiya is specific about the presence of diacetylmorphine, which is also alkaloid and known as diacetylmorphine or heroin and both FSL, Ahmedabad and CRCL, New Delhi have confirmed about the substance. Therefore, once the substance is found to be heroin, the argument about percentage and purity is not relevant. In the present case, it is the narcotic substance, the sample of which has been taken and which is specifically found to be heroin, would clinch the issue. In other words, if such an argument as regards purity or percentage of morphine on the basis of the contents of the heroin is required to be examined, then, it is going beyond the scope of the provisions of law. Once the narcotic substance which has been recovered or seized is classified and accepted to be heroin which is also confirmed on the basis of the sample taken therefrom, that it belongs to a particular type of narcotic substance like heroin, there is no further scope for any further dissection of the contents thereof. Therefore, the argument is without any substance and if the submission or argument is accepted, then, it would lead to not only chaos, but, in fact, it would not be in consonance with the spirit and purpose of the NDPS Act.
61. Therefore, in light of the discussion made hereinabove, on careful scrutiny and re-appreciation of the evidence and the submissions made by the learned Advocates, we are of the opinion that the judgement and order recording conviction by the learned Additional City Sessions Judge, Ahmedabad is just and proper and it does not call for any interference in the present appeals.
62. For the foregoing reasons, all the appeals fail and accordingly, they are dismissed. Resultantly, the impugned judgement and order dated 3rd November, 2006 passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad in Sessions Case No. 183 of 2001, convicting and sentencing the accused, is hereby confirmed and maintained.
Muddamal be disposed of in terms of the direction contained in the impugned judgement and order.
