Gujarat High Court
Mohammed Vasim S/O Akbar Hussain Khwaja vs The Intelligence Officer & ... on 6 January, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/235/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 235 of 2012
With
CRIMINAL APPEAL NO. 236 of 2012
With
CRIMINAL APPEAL NO. 263 of 2012
With
CRIMINAL APPEAL NO. 266 of 2012
With
CRIMINAL APPEAL NO. 267 of 2012
With
CRIMINAL MISC.APPLICATION NO. 19871 of 2014
In
CRIMINAL APPEAL NO. 236 of 2012
With
CRIMINAL MISC.APPLICATION NO. 19108 of 2013
In
CRIMINAL APPEAL NO. 263 of 2012
With
CRIMINAL APPEAL NO. 411 of 2012
With
CRIMINAL MISC.APPLICATION NO. 19865 of 2014
In
CRIMINAL APPEAL NO. 411 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
Page 1 of 13
R/CR.A/235/2012 JUDGMENT
5 Whether it is to be circulated to the civil judge ?
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MOHAMMED VASIM S/O AKBAR HUSSAIN KHWAJA....Appellant(s)
Versus
THE INTELLIGENCE OFFICER & 1....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR PRATIK B BAROT, ADVOCATE for the Appellant(s) No. 1
MR KT DAVE, SR. CENTRAL GOVT. COUNSEL for the Opponent(s)/Respondent(s) No. 1
MR PS CHAMPANERI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR HS SONI APP for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 06/01/2015
COMMON ORAL JUDGMENT
1. As these Criminal Appeals are arising out of common judgment and order dated 7.1.2012 passed by the learned Additional Sessions Judge, Court No.11, Ahmedabad, in Sessions Case (NDPS) No.186 of 2005, present Appeals are are heard together and disposed of by this common judgment
2. By the impugned judgment, the learned Additional Sessions Judge has convicted the appellants - accused persons for the offences punishable under Sections 8(c), 20(ii)(c) and 29 of the N.D.P.S. Act. The learned Sessions Judge ordered the appellant - accused Mohammed Vasim (Criminal Appeal No.235 of 2012), appellant - accused - Imdad Gulam Ahmed Shaikh (Criminal Appeal No.236 of 2012), appellant - accused - Salim Libiya Shah (Criminal Appeal No.263 of 2012), appellant
- accused - Hanifsa Nursa Diwan (Criminal Appeal No.266 of 2012), appellant - accused Hammad Ahmadkhan Haji Favadkhan (Criminal Appeal No.267 of 2012) and appellant -
Page 2 of 13R/CR.A/235/2012 JUDGMENT accused - Gulamrasul Shaikh Alias Baba (Criminal Appeal No.411 of 2012) to undergo sentence for a period of ten years rigorous imprisonment for the offence punishable under Sections 20(ii) (c) and 29 of the N.D.P.S. Act and to pay fine amount of Rs.1,00,000/-, in default of payment of fine, further rigorous imprisonment for three months.
3. Briefly stated, the complainant - Jitendra Raghuvanshi, Intelligence Officer, Narcotics Control Bureau, Ahmedabad Zonal Unit, Ahmedabad, received specific information on 1.12.2005 that a person namely Vasim - appellant in Criminal Appeal No.235 of 2014, involved in trading of hashish (Charas) and had sent his carriers for bringing about 15 to 20 Kgs. of hashish from a Kashimiri person named Fayaz and these carriers are found in numbers, out of them one person named Khan Chacha, aged about 50 to 55 years and the person named Hanif (appellant of Criminal Appeal No.266 of 2012) and three other persons are not known. These persons have boarded from Jaipur city at around 16 hrs. in a sleeper coach bus of Goyal Travels bearing Registration No. RJ-14 PA-1564 along with Hashish and said bus was going to Baroda. This information was forwarded to the Superintendent, NCB, Ahmedabad, immediately. Ultimately, raid was organized, a watch was kept and bus was stopped and four persons got down. Thereafter, they were questioned and contraband Charas weighing 16.22 Kgs. was found, therefore, same was seized by drawing panchnama dated 2.12.2005. Statement u/s.67 of the Act was recorded and they were arrested on 2.12.2005. As per the case of the prosecution, the accused No.1 was summoned to NCB office u/s. 67 of the Act and on his appearance, his statement was recorded on 3.12.2005, wherein he allegedly admitted to have sent accused Nos.2,3,4 Page 3 of 13 R/CR.A/235/2012 JUDGMENT and 5 for bringing Hashish for him and accused No.1 was then arrested. A sample drawn from the packets of hashish seized on 2.12.2005, was sent to CRCL, New Delhi, on 3.12.2005 and the report received from the CRCL confirmed positive of Charas. During the course of investigation, efforts were made to trace the persons to whom the accused No.1 used to supply hashish and on 13.12.2005, the NCB Officer, received information regarding co-accused No.6, who expired during the course of trial. After obtaining search warrant, the residential premises of the said accused was searched on 14.12.2005, where 3.510 Kgs. of hashish along the amount of Rs.23,100/- in cash were found and same were seized vide panchnama dated 14.12.2005 and he was also summoned u/s. 67 of the Act and his statement was recorded on 14.12.2005 and then he was arrested on same day. The samples drawn under panchnama dated 14.12.2005 were sent to CRCL and report from CRCL confirmed the positive for hashish. As per the case of the prosecution, during the course of further investigation, the office received information regarding the co-accused No.7 and her associates - co-accused Nos.7 and 8 and ultimately, from the co-accused No.7, hashish weighing 920 grams were seized. The said co-accused also with her and the muddamal was seized under the panchnama dated 31.1.2006. The statements of co-accused Nos.7 and 8 were recorded and they were arrested on the same day. The said hashish seized under panchnama dated 31.1.2006, was sent to CRCL, New Delhi and the report confirmed positive for hashish. After completion of the investigation, the complainant - Mr. Jitendra Raghuvanshi filed complaint against the total 8 accused persons for the offence u/s. 8(c) read with Sections 20(B)(ii) and 29 of the NDPS Act in the Court of Sessions, Ahmedabad. The charge Page 4 of 13 R/CR.A/235/2012 JUDGMENT was framed on 8.8.2007 by the learned Additional Sessions Judge. All the accused pleaded not guilty to the charge and claimed to be tried. Therefore, the trial has been conducted against the accused.
4. To prove the case against the accused, the prosecution examined following witnesses :
Sr. Name of the witnesses Exhibit No. P.W.1 Sanatanbhai Bapalal Dutt 27 P.W.2 Sanjaybhai Ashokbhai Patel 13 P.W.3 Prafulsinh Navalsinh Sarvaiya 110 P.W.4 Indravadan Naginbhai Parekh 112 P.W.5 Harkishanbhai Amrutbhai Patel 125 P.W.6 Manharbhai Natvarbhai Rana 127 P.W.7 Umeshbhai Jayantbhai Pathak 132 P.W.8 Jitendra Niranjanlal Raghuvanshi 136
5. The prosecution has also produced several documentary evidence to prove the case against the accused persons.
6. From the other side, the defence side has examined following witnesses :
Sr. Name of the witnesses Exhibit No. D.W.1 Feminabibi Mohmmadvasim Khwaja 159 D.W.2 Dr. Manish Chimanlal Sutariya 163 D.W.3 Dr. Dipak Shantilal Mehta 166 D.W.4 Dr. Sanatan Krushnakant Vaishnav 168 D.W.5 Ravindrabhai Dahyabhai Shrimali 175
7. The defence side also produced several documentary evidence to prove their defence.
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8. Thereafter, statements under Section 313 of the Code of Criminal Procedure were recorded, wherein the accused stated that they are innocent and they have not committed alleged offence. After hearing at length and on perusal of the evidence on record, the learned Sessions Judge observed that the prosecution has proved the case against the accused beyond reasonable doubt and therefore, learned Sessions Judge passed the order of conviction as stated hereinabove.
9. Learned advocate Mr. Barot appearing on behalf of the appellants of Criminal Appeal Nos. 235 of 2012, 236 of 2012, 263 of 2012, 266 of 2012 and 267 of 2012 submitted that from the impugned judgment and order of conviction and sentence, it makes clear that the learned Sessions Judge has decided the case on inferences and probabilities, ignoring the evidence on record adduced by the prosecution. He also submitted that learned Sessions Judge has not taken into consideration properly and in its proper perspective the evidence adduced by the defence version. He submitted that the secret information is concocted and said so-called secret information is not legally proved by the prosecution. In the so called secret information of only Vasim of Ankleshwar is shown, but there was no complete name and address of said Vasim and there are so many Vasim in Ankleshwar. Therefore, as per his submission, the identity of the said appellant is doubtful. He further submitted that there was criminal conspiracy, but, on perusal of the evidence, it appears that there is no any iota of evidence regarding criminal conspiracy against the appellants. He also submitted that the identity of Muddamal and samples sent to CRCL is not established by the prosecution and there is all possibility of tampering with the contents of the samples.
Page 6 of 13R/CR.A/235/2012 JUDGMENT He also submitted that the prosecution has not followed the procedure under Section 52-A of the NDPS Act regarding the disposal of seized Narcotic Drugs and Psychotropic Substances. He read the charge and submitted that the accused persons are wrongly implicated in the alleged offence and there is no any single evidence prima facie established against the appellant. He read the oral evidence of the complainant Mr. Raghuvansi and submitted that the complainant has not followed the mandatory provisions of the Act. He also submitted that NCB itself is police and the statements made before the NCB officers are required to be considered as it was made before the police authority. He also submitted that there are so many contradictions in the versions of the witnesses examined by the prosecution. He further submitted that the panchnama for recovery of muddamal is not proved and the learned Sessions Judge has not considered the version of defence. He submitted that the appellants are in jail since long and looking to the age of the accused, some sympathy is required to be considered in favour of the appellants. He lastly prayed to allow the appeal by dismissing the impugned judgment and order of conviction and sentence.
10. Learned advocate Mr. L.R. Pathan appearing on behalf of the appellant in Criminal Appeal No.411 of 2012 submitted that the appellant was never present on 31.1.2006 at Ankleshwar- Rajpipla chokadi and he had not gone to take delivery hashish (Charas) from the accused No.7. He also submitted that in fact the accused had been from Surat in early point of time and his statement u/d. 67 was recorded under duress and that too after his arrest. He also submitted that so called information was received by the complainant - Raghuvanshi as per the case of the prosecution, it was on 1.12.2005 and in connection Page 7 of 13 R/CR.A/235/2012 JUDGMENT of that information,t he raid was carried by the raiding party and the quantity which was shown from the accused No.2 was seized. He also submitted that on 14.12.2005, as per case of the prosecution, the another information was received and that information was not to the superior authority by the complainant Raghuvanshi and said information was in connection with the other accused No.6 and as per that information, the raiding party has carried out search operation and seized muddamal contraband from the house of accused No.6. He also submitted that on 31.1.2006, further information was received by said Raghuvanshi that the accused No.7 is having possession of contraband articles and supplied to somebody else and further search was carried out and 920 grms. hashish was seized. As per the case of the prosecution, the accused No.8 came for delivery and he was arrested and he was arrested. He further submitted that the agency received information on 14.12.2006 against accused No.6 and in respect of accused No.7 that information was received on 31.1.2006 was not written down and it was not sent to the Higher Authority. He further submitted that looking to the above circumstances, it is prima facie established that NCB agency has not followed mandatory provisions of law and the conduct of the complainant Raghuvanshi is doubtful. He also submitted that looking to the facts of the present case, the muddamal articles were recovered at different time and seized from other accused and that case cannot be clubbed with that case for which information was received by the complainant. He read the statement of the accused and submitted that even from the contents of the statement which was disclosed before the Authority, do not show that he was one of the conspirator with the accused Nos.1 to 6 in committing conspirator chain by Page 8 of 13 R/CR.A/235/2012 JUDGMENT them. He submitted that the prosecution could not prove the case against the accused No.8. He prayed to allow the Appeal by quashing and setting aside the impugned judgment and order of conviction and sentence.
11. Per contra, learned Sr. Central Government Counsel Mr. K.T. Dave for the respondent No.1 and learned APP Mr. Soni for the respondent No.2 supported the impugned judgment and order of the conviction and sentence passed by the learned Sessions Judge. Learned Sr. Central Government Counsel Mr. Dave submitted that the complainant Raghuvanshi carried out for search and recovered the contraband articles from accused Nos.2 to 5 in connection of the information disclosed by the original accused No.1 and then search was carried out as per the provisions of law and sampling and seizing was properly carried out and even during the cross-examination of this witness Raghuvanshi that was not established that the prosecution has committed any error for sealing and seizing of the Muddamal. He also submitted that as per the original information received by the said witness - Raghuvanshi that was the information regarding conspiracy and abetment in carrying on the quantity of Narcotic drugs by the accused persons and therefore, the prosecution has prima facie established the the abetment in hatching conspiracy. He further submitted that even from the CRCL report also, it is not proved that the prosecution has committed any illegality and it is not established from the record of laboratory that the laboratory has nt received any packet of parcel of sample. He read the statement recording under Section 67 of the NDPS Act of the accused and submitted that NCB officer is not police and before the Authority, when same statement made by the accused that is required to be considered as legal evidence Page 9 of 13 R/CR.A/235/2012 JUDGMENT against the accused. He also submitted that the impugned judgment and order of conviction and sentence is solely on the based of the statements of the co-accused. He also stated that the accused have never challenged the contents of statement u/s.67 of the NDPS Act. He also submitted that at the event of recording the statement u/s. 313 of the Code of Criminal Procedure, the accused have not explained properly their defence. He also submitted that presumption is required to be drawn against all the accused for the alleged charge. He has drawn attention to Exhibit 114 information which was received by Jitendra Raghuvanshi on 30.1.2006 and the contents of the said information and argued that the appellant of Criminal Appeal No.411 of 2012 - Gulamrasul Shaikh @ Baba is shown in that information and that information was sent tot he Authority. He also submitted that the prosecution has also followed the mandatory provisions of NDPS Act. He also submitted that looking to the huge quantity of hashish recovered from the possession of the present appellant - accused, the appeals preferred by the appellants are required to be dismissed by confirming the impugned judgment and order of the conviction and sentence.
12. Heard the parties and considered the records. As per the case of the prosecution, it is prima facie established that the Intelligence Officer Mr. Raghuvanshi, who was on duty, had received information regarding transaction of narcotic drugs by the accused persons and that information was written down by him and sent to the higher authority. The complainant has followed the procedure and he called panchas and primary panchnama was drawn and then raid was carried out. As per his information, he recovered alleged hashish from the appellants accused. It was properly sealed and seized and Page 10 of 13 R/CR.A/235/2012 JUDGMENT therefore, interrogation of the appellants - accused was started and statements of the accused were recorded under Section 67 of the NDPS Act and he upon relying upon the same fact which was disclosed before him, produced on record. It appears that the the statement recording under Section 67 was never challenged by the accused. From the cross- examination of said Raghuvanshi as well as members of rading party, who were examined by the prosecution. It is true that the defence has tried to establish his defence by way of challenging recovery and mandatory provision which was not followed by the prosecution, but the learned Sessions Judge has not considered the same after hearing at length the defence side.
13. Learned advocate Mr. Pathan submitted that nothing was recovery from the possession of the accused No.8 and simply recovery was made from Madhuben and simply his presence was shown at the time of recovery of muddamal. Therefore, he submitted that the said accused has not committed any offence.
14. As per the case of the prosecution, first information was received by the complainant Raghuvanshi then raid was carried out then statement u/s. 67 of other co-accused were recorded and from the disclosure made by co-accused, other further information was received by him and it was written down and it was sent to the higher authority. Here in the instant case, it is required to be considered that as per the charge, which is framed against the said accused is not only for the possession of the contraband articles, but the charge is for abetment and conspiracy also. The aspect of the abetment Page 11 of 13 R/CR.A/235/2012 JUDGMENT is not prescribed under the provisions of NDPS Act, but same is required to be considered as per the provisions of Section 107 and 108 of the Indian Penal Code. Section 107 and 108 are quoted as under :
107. Abetment of thing - A person abets the doing of a thing, who -
First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.
Section 108 : Abettor - A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
15. I have minutely perused the statements recorded under Section 67 of the NDPS Act and recovery panchnama and evidence of members of raiding party, it appears that the prosecution has proved the case as per the ingredients of Sections 107 and 108 of the Indian Penal Code. Therefore, the submission advanced by learned advocate Mr. Pathan that the accused No.8 has not committed any offence is not acceptable.
16. In view of the above position, this Court is not inclined to Page 12 of 13 R/CR.A/235/2012 JUDGMENT interfere with the findings recorded by the learned Additional Sessions Judge in the impugned judgment and order of conviction and sentence as the learned Sessions Judge has rightly considered the evidence of both the sides and has convicted the appellants.
17. In the result, the Criminal Appeals are dismissed and the judgment and order dated 7.1.2012 passed by the learned Additional Sessions Judge, Court No.11, Ahmedabad, in Sessions Case (NDPS) No.189 of 2006 is hereby confirmed. Record and Proceedings to be sent back to the concerned trial court forthwith.
Connected Criminal Misc. Applications :
In view of the dismissal of the Criminal Appeals, the applications do not survive. Hence, they are disposed of. Rue is discharged.
(Z.K.SAIYED, J.) YNVYAS Page 13 of 13