Gujarat High Court
Gulabbhai Mitthalbhai Patel vs State Of Gujarat on 17 September, 2003
Author: M.S. Shah
Bench: D.K. Trivedi, M.S. Shah
JUDGMENT M.S. Shah, J.
1. All these five appeals are directed against the common judgment and order dated 19.7.1999 passed by the learned Additional Sessions Judge, Valsad at Navsari in Special Case Nos. 17 of 1996 and 37 of 1997, both in respect of the offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" or "the Act").
Criminal Appeal No. 862 of 1999 is filed by original accused No. 2-Gulabbhai Mitthalbhai Patel challenging his conviction for the offence punishable under Section 22 of the NDPS Act and the order sentencing him to rigorous imprisonment for ten years with a fine of Rs. 1,00,000/-, in default two years rigorous imprisonment.
Criminal Appeal No. 1026 of 1999 is filed by original accused No. 1-Nazir Ahmed Ismailji Chikhliwala challenging his conviction for the offence punishable under Section 22 of the NDPS Act and the order sentencing him to rigorous imprisonment for ten years with a fine of Rs.1,00,000/-, in default two years rigorous imprisonment.
Criminal Appeal No. 1164 of 1999 is filed by the State of Gujarat challenging the aforesaid judgment in so far as original accused Nos.3, 4 and 5, Shivpratapsing Munnabhaiya Narendrasing, Joginder @ Jagubhai Haricharan Jindal and Makhanlal Kharbhar Sharma respectively are acquitted by the learned Sessions Judge in NDPS Case No. 17 of 1996.
Criminal Appeal No. 1165 of 1999 is filed by the State of Gujarat for challenging the order of acquittal of Ballubhai @ Bhagwanbhai Somabhai Tandel, who was original accused No. 1 in NDPS Case No. 37 of 1997 and who was subsequently shown as accused No. 6 when both the cases were tried and decided together.
Criminal Appeal No. 1166 of 1999 is filed by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of the sentence imposed by the learned Additional Sessions Judges on original accused Nos.1 and 2.
Since all these appeals involve common questions of fact and law and arise from the same common judgment of the Special Court, with the consent of the learned counsel for the parties, all the five appeals have been heard together and are being disposed of by this common judgment.
2. The charge is in two parts :-
The charge against original accused Nos.1 and 2, the appellants in Criminal Appeal Nos.862 and 1026 of 1999 is in both parts :-
(i) The first part of the charge against accused Nos. 1 and 2 was that at 5.45 AM on 27.5.1996, accused Nos.1 and 2 were travelling in a Fiat car bearing No. MMF 1066 on the Vapi-Kachigam Road when they were found to be in possession 15,378 mandrax tablets worth Rs.15,87,800/- in 15 polythene bags, without any permit for the same and had thus committed the offence punishable under Section 22 of the NDPS Act.
(ii) The second part of the charge against accused Nos.1 and 2 was connected with the charge against accused Nos.3 to 6 which was to the effect that Ballubhai Bhagwanbhai Somabhai Tandel (accused No. 6) and his wife Deviben Ballubhai were manufacturing mandrax tablets in their farm and house at village Kalai and for the purposes of the said manufacturing activity, accused Nos.3, 4 and 5 were supplying raw materials and liquids through accused Nos.1 and 2 enabling accused No. 6-Ballubhai @ Bhagwanbhai Somabhai Tandel and his wife Deviben Ballubhai to manufacture mandrax tablets in the aforesaid farm. On 28th and 29th May 1996, the police seized from the aforesaid farm and the building thereon of Ballubhai (accused No. 6) and Deviben, the machineries for manufacturing mandrax tablets and the equipments and chemicals supplied by accused Nos.3, 4 and 5 and the mandrax tablets manufactured therefrom valued at Rs.1.17 Crores and rotary machine worth Rs.14,000/-. Thus, all the accused were guilty of manufacturing or abetting manufacture of mandrax tables and had thus committed the offences punishable under Sections 22, 25, 26(a), 26(c), 26(d) and 29 of the NDPS Act.
3. The prosecution case was as under :-
3.1 On 26.5.1996, Mr AD Chudasama, Dy.SP in Anti Terrorist Force (ATF), Gujarat at Ahmedabad, also known as Anti Terrorist Squad (ATS), received information at Bharuch to the effect that accused No. 1-Nazir Ahmed Ismailji Chikhliwala, resident of Moti Daman was going to transport psychotropic substance like mandrax in Fiat Car bearing No. MMF 1066 from Moti Daman to Vapi via Kachigam on 27.5.1996. On the basis of the said information, in the early morning of 27.5.1996 Mr AD Chudasama alongwith the other officers of the ATF and panchas got a preliminary panchnama prepared and kept a watch on different areas on the Kachigam Road at Vapi near Kailash Bhuavan Apartment cross roads. At about 5.45 in the morning, a Fiat car bearing the above registration number was spotted and was stopped. Accused No. 1 was occupying the driver's seat and accused No. 2 was sitting beside accused No. 1. They were informed that their vehicle was being searched and as per the procedure prescribed by law, the Fiat car was searched. From the rear seat of the Fiat car, one plastic bag and another cloth bag were found. The plastic bag contained 8 polyethylene bags all of which contained 8176 tablets. The second bag i.e. the cloth bag contained another 7 polythene bags with 7202 tablets. Samples of 5 tablets from each of these 15 polythene bags were taken as per the procedure and were sealed and the other tablets remaining in those polythene bags were also sealed. All the tablets had on one side English alphabet "M" embossed and on the other side a flower like design was embossed. All the tablets were seized in presence of the panchas by making panchnama. On the basis of such seizure, Mr AV Kathiria, PSI, ATS lodged complaint dated 27.5.1996 against accused Nos. 1 and 2 before the Vapi Police Station at CR No. 92 of 1996.
3.2 On interrogation about manufacture of the tablets, accused No. 1 volunteered to show the place, machineries and raw materials used for manufacturing the mandrax tablets. Therefore, a preliminary panchnama was prepared before the panchas and accused No. 1 took the police with the panchas to the farm of the ownership of Deviben Ballubhai and in occupation of accused No. 6-Ballubhai @ Bhagwanbhai Somabhai Tandel at village Kalai. A heavy machine concealed in a pit in the farm and so also fertilizer bags containing powder and plastic carboys filled with liquids, 3 machines for heating, glass flask, denester, condenser and weighing machine hidden in another pit in the farm were shown and also the die and 32 upper and lower punches hidden under hay in the third pit in the farm were also shown. The room where mandrax tablets were manufactured was also shown. Necessary samples were taken from all such materials and they were seized, sealed and a panchnama was prepared. During this operation, 1,14,000 tablets bearing light bluish and brown colours with English alphabet "M" (inverted read as "W") and a flower like design embossed on the other side were also seized. Samples of tablets were also taken and the samples were sealed and packed. Samples were also taken from the chemical powders and liquids and those samples were also sealed and the other materials and machineries were also seized after following the prescribed procedure. During this search, accused No. 1 also volunteered to show one rotary machine used for manufacturing mandrax tables lying at the factory of Surjitsingh in GIDC Estate and that machine was also seized after preparing a panchnama.
3.3 It is the prosecution case that the farm belonged to Deviben Ballubhai and that Deviben and her husband-Ballubhai Tandel (original accused No. 6) were manufacturing mandrax tablets in the above farm and the raw materials for this manufacturing activity such as chemical substances and chemical liquids were being supplied by accused No. 3, accused No. 4 and accused No. 5 through Accused No. 1 and accused No. 2. Samples of the mandrax tables seized were sent to the Forensic Science Laboratory for analysis and each tablet was found to be containing METHAQUALONE. Over and above accused Nos.1 and 2 who were arrested in the morning of 27.5.1996, the police arrested accused Nos.3, 4 and 5 and the five accused were chargesheeted in Special (NDPS) Case No. 17 of 1996. They pleaded not guilty to the charge. Accused No. 6-Ballubhai Tandel and his wife Deviben were absconding and, therefore, they were proclaimed as absconders. Accused No. 6-Ballubhai Tandel was subsequently arrested and supplementary chargesheet was filed against him which was numbered as Special (NDPS) Case No. 37 of 1997. He also pleaded not guilty to the charge. Both the Special Cases were tried together and the evidence led by the prosecution was recorded in Special (NDPS) Case No. 17 of 1996.
4. The evidence led by the prosecution may be divided into the following parts :-
I Regarding ownership and possession of Fiat Car.
II Regarding seizure of tablets from Fiat Car in the morning of 27.5.1996.
III Regarding seizure of machineries and materials used for manufacturing activity from the farm in question.
IV Purchase of machineries and raw materials.
V FSL Expert and his report.
I. Evidence regarding ownership and possession of Fiat Car
5. PW 1 Kishorebhai Raising (Exh.39) of Andheri-Mumbai and PW 5 Saiyed Adam (Exh.93), owner of Safora Motors at Mumbai were examined to show that the Fiat car in question was owned by Hemlataben, wife of witness Kishorebhai. On 23.1.1994, Hemlataben and witness Kishorebhai sold the said car to Manish Deo of Andheri-Mumbai who in turn sold the car to accused No. 1-Nazir Ahmed through PW 5 Saiyed Adam who is running a garage business at Mumbai (delivery note Exh.40 pg.389).
PW 5 Saiyed Adam, deposed that the car was registered in the name of Hemlataben and the witness had purchased the car from Manish Deo for Rs. 17,000/-. When the witness purchased the car, it was in green colour, but then he painted the car with maroon colour. Accused No. 1 had gone to the witness to purchase the car and the witness sold the above Fiat car to accused No. 1 for Rs.60,000/-, out of which half the consideration (Rs.30,000) was paid by accused No. 1 and the delivery was given, but the registration book and other papers were not given to accused No. 1 as the full price was not paid.
II. Evidence regarding seizure of tablets from Fiat car
6. The second category of witnesses have given evidence to connect accused Nos. 1 and 2 with the seizure of the tablets which are found to be mandrax tablets.
6.1 PW 2 Dharmeshbhai Arvindbhai (Exh.41) and PW 3 Ashok Babu (Exh.90) are panch witnesses who are employed in the factories at Vapi. Both the panch witnesses admitted their signatures on the panchnama (Exh.42) and also on the seals on the samples and the bags which were produced by the prosecution as muddamal article Nos.1 to 19. Both the witnesses, however, turned hostile and stated that nothing was recovered from any person in their presence. The prosecution also examined PW 27 Mr Abhaysinh Devisinh Chudasama, Dy.SP, ATS, Ahmedabad (Exh.186), PW 26 Mr Nathalal Vallabhbhai Kathiria (Exh.173), PSI, ATS, Ahmedabad and PW 28 Mr Bhikhabhai Bhagwandas Patel, PI, ATS, Ahmedabad (Exh.192).
6.2 Dy.SP Mr Chudasama, PW 27, stated that he was a gazetted officer serving as Dy.SP, ATS Unit with Head Office at Ahmedabad, but with territorial jurisdiction all over the State of Gujarat. When he was at Bharuch on 26.5.1996 in connection with a secret ATS assignment, he received information regarding the present offence. After receiving the information, he left Bharuch with the police for proceeding to Vapi and on the way, he sent a report to the Dy.IG of Operations, ATS, Ahmedabad through a personal messenger. The office copy of the report was produced at Exh.187. Upon reaching Vapi Circuit House between 9.00 and 10.00 in the morning, PI Mr BB Patel, PW 28, and other officers were instructed to remain at the Circuit House and the witness went to Vapi city for verification of the information received. Thereafter, the witness returned late at night to the Circuit House. At about 2.30 in the early morning of 27.5.1996, two panchas were called and a preliminary panchnama was prepared between 4.30 and 5.15 AM and the DY.SP and the police party alongwith the panchas left for Vapi-Kachigam Road. When the Dy.SP and the raiding party were on the watch out near Kailash Apartment Cross Road on the Vapi-Kachigam Road for Fiat car bearing registration No. MMF 1066, at about 5.45 AM one Fiat car bearing the said number was spotted. The car was stopped. Accused No. 1 was occupying the driver seat and accused No. 2 was sitting beside accused No. 1. The police officers introduced themselves and informed both the accused that the car was to be searched and the accused were asked whether they would like the search to be made in presence of any gazetted officer or whether the police officers can themselves take the search, whereupon both the accused agreed to be searched by the police officers. Upon searching the person of accused No. 1, driving license and some rupees were found from his pocket. On search of the car, in the rear seat of the car, one plastic bag containing 8 transparent polythene bags and another cloth bag containing 7 transparent polythene bags were found. From the plastic bag about 1000 tablets from each of the 15 polythene bags were found. When asked, accused No. 1 stated that they were mandrax tablets. When accused No. 1 was asked whether he had any permit for the same, accused No. 1 did not have any such permit. On further search of the Fiat car, an RTO registration book was found showing Hemlataben residing at Mumbai as the owner. The necessary panchnama was prepared for seizure of the tablets. The signature of this witness (Dy.SP) was put on the preliminary panchnama as well as the final panchnama.
6.3 Similarly, PW 26 Mr NV Kathiria (Exh.17-Pg.1017) gave his evidence on the same lines. When Dy.SP Mr AD Chudasama reached the Circuit House at Vapi, PSI Mr Kathiria was also with him. This witness (PSI Mr Kathiria) further stated that he was at the site where the car was stopped, till about noon on 27.5.1996. The complaint filed by this witness was given Exh. No. 177.
6.4 PW 28 PI Mr Bhikhabhai Bhagwandas Patel (Exh.192) stated that he was PI, ATS, Ahmedabad between November 1995 and February 1997 and was informed by Dy.SP Mr Chudasama on 26.5.1996 morning to remain at the Circuit House at Vapi and after he returned in the late night hours, Mr Chudasama informed him about the receipt of the information regarding accused No. 1 manufacturing and transporting psychotropic substances in Fiat Car bearing No. MMF 1066. Hence this witness (PI Mr BB Patel) went to the GIDC Estate at Vapi to call two witnesses in the early morning hours of 27.5.1996 and the preliminary panchnama was prepared in his presence between 4.45 and 5.15 AM. The panch witnesses were also informed about the aforesaid information and the panchas were taken to the place where the raid was to be carried out. The rest of the evidence of this witness is also on similar lines about spotting and stopping the Fiat car and about seizure of the tablets, description of the tablets and the preparation of the panchnama.
III. Evidence regarding seizure of machineries, raw materials and tablets from the farm in question.
7. The third part of the prosecution evidence consisted of the witnesses who deposed about seizure of the machineries, equipments, raw materials and mandrax tablets from the land of Deviben at village Kalai.
7.1 PW 16 Dilipkumar Babulalji (Exh.120) was examined as panch witness for the panchnama (Exh.121) which was prepared for seizure of one rotary machine for manufacturing tablets lying at the factory of PW 5 Sardar Surjitsinh in Vapi GIDC State, Phase IV at the instance of accused No. 1. This panch witness PW 16 turned hostile.
7.2 PW 17 Sukdev Pattubha (Exh.124) was examined in connection with Panchnama (Exh.125) which was in respect of the machines, substances and liquids found from the wadi of Deviben at the instance of accused No. 1. This panch witness admitted his signatures on the panchnama and the seals on the samples, and other muddamal articles mentioned in the panchnama but turned hostile. It was stated in the panchnama that Sukdevsinh Pattubha Jadeja and Murthi Sellamuthu Pillai were called by Dy.SP, ATS to the PWD Circuit House at Vapi. Two persons were found to be in police custody. The first one disclosed his name as Nazir Ahmed Ismail Chikhliwala (accused No. 1), resident of Bhintwada Moti Daman and the other disclosed his name as Gulabbhai Mitthalbhai Patel (accused No. 2), resident of Dalwada Nani Daman. After accused No. 2 was taken out of the PWD Circuit House, when accused No. 1 was asked about manufacture of the narcotic and psychotropic substances, he stated that he was prepared to show the place consisting of the farm and pucca house of Ballubhai Somabhai Tandel (accused No. 6) in village Kalai of Umargam Taluka where mandrax tablets were manufactured through a worker called Munnabhaiya (accused No. 3) with the help of necessary machines and raw materials; the machines, raw materials and the mandrax tablets were concealed in three different pits in the farm. The preliminary part of the panchnama was signed by two witnesses and also by Dy.SP and PI, ATS, Ahmedabad.
7.3 The panch witnesses accompanied the police and accused No. 1 to Kalai village at 2 PM on 28.5.1996. When they reached Kalai village, the police vehicle was taken to a farm. There were two rooms and a verandah with a kachha shed. Accused No. 1 led the police party and showed a heavy handle machine concealed in a pit which was covered by mud. Accused No. 1 thereafter took the party to another pit which was concealed by the leaves of the coconut trees and upon removal of the same, 4 bags meant for fertilizers, 3 plastic carboys and another 3 bags meant for storing fertilizers were found. The bags for storing fertilizers contained some chemical powder. The pit also contained three machines for heating the powder and also glass flasks, glass condenser and rubber pipes and also weighing scale and a hand weighing scale (known as packed balance). All the equipments and materials seized were sealed with the slips bearing signatures of the panchas and the seal of "DG & IG of Police, GS, Ahmedabad". Samples were taken from out of the polythene bags and the bags were also sealed with the seal of "DG & IG of Police, GS, Ahmedabad" and the slips bearing the signatures of the panchas. Each of these bags was containing 25 Kgs. of chemical powder. The chemical powder was of grey colour. The other three bags for storing fertilizer contained tablets of whitish and light bluish colour. On counting, the first of these bags contained 50,000 tablets. From the second bag also, another 50,000 tablets were found. From the third bag, 14,000 tablets were found. Samples and control samples were taken from each bag. All the samples as well as the control samples were sealed with the seal of "DI & IG of Police, GS, Ahmedabad". The three plastic carboys found from the pit were having capacity of 50, 50, and 35 Ltrs. respectively. The first and the second carboys were containing 40 ltrs. of strong smelling liquid and the third one was containing liquid of stale oil to the extent of about 12 ltrs. From all these liquids also, samples and control samples were taken and they were sealed. All the raw materials, weighing scale and five weighing units were found from the pit which had dimensions of 12 ft. diameter and 5 ft. depth.
Accused No. 1 thereafter took the party to the next pit where beneath hay, there were two bags, one containing die, punch and the second containing three iron stands. The punches and the die were totalling 32. Out of the 32 punches, 13 bore "M" or "inverted W" marks and 14 bore a flower like design, 5 others were in broken condition. When accused No. 1 was asked by the police party as to where the mandrax tablets were being manufactured with the above raw materials and equipments, accused No. 1 took the party to the two rooms in the wadi. In one room, there were agricultural equipments. There was a creeper covering the verandah of both the rooms. On one wall of this room, there were three electric points. Electric wires were hanging from the ceiling of the room. The roof ceiling consisting of cement sheets was having dark carbon spots.
The farm had mango, chickoo, coconut plantations. This panchnama was completed at 8.55 PM on 28.5.1996.
8. As far as the seizure of machines, equipments, raw materials and tablets is concerned, PW 27 Dy.SP Mr AD Chudasama has given his evidence about the seizure of 1,14,000 tablets from the wadi of Deviben at the instance of accused No. 1-Nazir and also the machines and the raw materials found in the said wadi. He stated that panchnama (Exh.125) was prepared in his presence and in the presence of Inspector Mr BB Patel and the panchas. He also identified the signatures on the slips, on the samples and control samples and the police seals. As regards the possession of the wadi in question, the witness (Mr Chudasama) stated in para 5 of his deposition that upon inquiry with the servant on the wadi as to who was in possession of the farm (wadi), the servant did not say anything. This witness stated in his chief that the servant did not know as to who was managing the farm. The said servant is not examined as a witness. Dy.SP Mr Chudasama further stated that after seizure of the articles from the wadi (farm), he had not made any investigation regarding the farm and that he returned to Ahmedabad on 29.5.1996 and thereafter he did not go back to Vapi.
PW 28 PI BB Patel (Exh.192) also gave the evidence on the same lines as Dy.SP and identified his signatures on the panchnama (Exh.125). This witness (PI MR BB Patel) further deposed about the seizure of the rotary machine for manufacturing tablets from Surjitsinh at the instance of accused No. 1 on 29.5.1996 and the statement of Talati-cum-Mantri Shivbhai Maganbhai Patel recorded on 1.6.1996 regarding ownership and possession of the land on the basis of Exhs.151, 152 and 153 being the revenue record showing the ownership and possession of the land in question. This witness also proved various contradictions in the evidence of the witnesses who turned hostile and who are confronted with their police statements.
IV. Evidence regarding purchase of machineries/raw materials used for manufacturing tablets.
9. The prosecution examined various witnesses to connect accused Nos.1 to 5 with the manufacture of mandrax tablets. The witnesses deposed about purchase of machineries and equipments as well as raw materials for manufacturing tablets. Seven witnesses were examined to connect accused Nos.1 and 3 with such purchases. One witness was examined to connect accused No. 2, two witnesses were examined to connect accused No. 4 and one witness was examined to connect accused No. 5 with the purchase of raw materials. The Talati-cum-Mantri of the Village Panchayat was examined to prove the revenue record to show that the ownership of the land in question was that of Deviben, wife of accused No. 6. However, no witness was examined to prove the possession or occupation of the land in question by accused No. 6. The evidence of all the witnesses in this part would be discussed later while giving finding about involvement of each individual accused in the manufacturing activity.
V. FSL Expert and his report
10. PW 12 Maheshchandra Chhabildas (Exh.102), Scientific Officer in the Forensic Science Laboratory at Ahmedabad is M.Sc.(Organic Chemistry), LL.B and had put in 16 years service as Scientific Officer at the FSL on the date of his evidence i.e. in September 1997. The witness stated that 15 parcels in connection with CR No. 92 of 1996 registered at Vapi Police Station were received by his office in sealed condition on 28.5.1986 and another 11 parcels were received by his office in sealed condition on 30.5.1996 and that all the parcels were handed over to the witness on 31.7.1996 for analysis. All the parcels were having the seal of "DG & IG of Police, GS, Ahmedabad" and the tablets in all the bags of all the parcels were having swastik embossed on one side and English alphabet "M" embossed on the other side. Each tablet contained methaqualone. This witness further stated that anthracitic acid, acetic anhydride and anymolic acid are used for manufacturing METHAQUALONE. These were found in samples bearing Nos. I/1 (HC Acid), C/1 and J/1 (aromatic carbonic compound) and K/1 (phenolic compound). Muddamal article Nos. 23, 24 and 26 bearing No. A/1, B/1 and D/1 contained plastic polythene bags having powder known as anthracitic acid. Muddamal article No. 30 (H/1) contained the plastic polythene bag having METHAQUALONE powder. The bottle bearing muddamal article No. 31 (I/1) contained hydrocholoric acid. This witness further explained the tests applied by him for chemical analysis of the tablets and further stated that methaqualone is a psychotropic substance which is banned by the NDPS Act. This witness proved the report dated 20.8.1996 at Exh.105 wherein it was stated that each of the tablets with swastik mark on the one side and English alphabet "M" on the other side was having nett weight between 3.830 grms. and 4 grams. as per the details given in the report.
We may note at this stage that there is no challenge to the FSL report in so far as the report contains the opinion of the FSL expert who has opined that the samples of the tablets seized from the Fiat car as well as the samples of the tablets seized from the farm in question contained METHAQUALONE.
11. At the hearing of these appeals, original accused No. 1 is represented by learned advocate Mr BS Patel, original accused No. 2 is represented by learned advocate Mr SV Raju. Original accused Nos.3 and 5 were served, but no appearance is made by them or on their behalf. Original accused Nos.4 and 6 are represented by Mr Abhay Shah.
We have heard the arguments of the learned counsel appearing for the accused and Mr KC Shah, learned Addl. Public Prosecutor. We have also gone through the evidence on record and the decisions cited at the Bar. Since the evidence on record attributes somewhat different roles to the different accused, we have examined the evidence and the arguments to find out the role played by each accused and also different legal submissions raised on behalf of the various accused from different perspectives. The arguments are made both on the questions of fact and on questions of law.
12. Mr BS Patel, learned counsel for accused No. 1 has mainly concentrated on the legal submissions based on violation of various provisions of the NDPS Act.
Mr SV Raju, learned counsel for accused No. 2 has mainly argued that the trial Court committed serious errors of law and fact in holding that accused No. 2 was in possession of mandrax tablets when accused No. 2 was a mere passenger in the car without any control or custody of the goods lying in the back seat and that no person would have been able to make out that the goods contained in the cloth bag and plastic bag were any such mandrax tablets or any contraband article. It is submitted that the prosecution was required to prove conscious possession of the goods vis-a-vis accused No. 2 before invoking any presumption under Section 35 of the Act.
Mr Abhay Shah, learned counsel for original accused Nos.4 and 6 has supported the judgment of the trial Court acquitting the said accused.
13. On the other hand, Mr KC Shah, learned APP has supported the judgment of the trial Court in so far as accused Nos.1 and 2 are held to be in unlawful possession of the mandrax tablets seized from the Fiat car. The learned APP has further submitted that the said two accused as well as accused Nos.3 to 6 were guilty of the offence of manufacturing/abetting manufacturing of the mandrax tablets seized from the farm at village Kalai. In case of these accused also, the learned APP relied on the provisions of Section 35 of the Act and particularly relied on the provisions of Section 25 of the Act in case of accused No. 6.
14. Before dealing with the legal contentions raised by the learned counsel for the parties, we would give our findings on the question of possession of the psychotropic substance and its manufacture qua each of the accused.
Accused No. 1 - Possession of Mandrax Tablets
15. Taking up the case of accused No. 1-Nazir Ahmad Ismail Chikhliwala :-
15.1 The trial Court has held accused No. 1 to be guilty of possession of and transporting of 15,000 mandrax tablets in the morning of 27/5/1996 when the Fiat Car bearing registration No. MMF 1066 was intercepted by the police at the Vapi-Kachigam Road. Accused No. 1 himself was driving the car and upon being searched by the police, accused No. 1 himself produced his driving license from his pocket and the two bags from the rear seat of the car, one plastic bag and another cloth bag, which contained the said 15,000 mandrax tables. In view of the evidence on record, it is clear that accused No. 1 was found in possession of 15,000 mandrax tablets.
15.2 Accused No. 1 has not offered any explanation as to how the said tablets came to be in the Fiat car which he was driving. All that accused No. 1 has attempted in the cross examination of the prosecution witnesses is to suggest that the Fiat car did not belong to him as it was registered in the name of Hemlataben of Mumbai. The prosecution has examined PW 1 Kishorebhai Raisingbhai (Exh. 39), husband of Hemlataben, to show that the said Fiat car was sold by Hemlataben to Manish Deo and in support of the said contention, the delivery memo dated 23.1.1994 signed by Manish Deo and bearing his address is produced at Exh. 40. The prosecution has also examined PW 5 Saiyed Adam (Exh. 93) who is running a garage to show that Manish Deo had sold the said Fiat car to accused No. 1-Nazir Ahmad and that Nazir Ahmad had paid Rs.30,000/- for the said car.
15.3 Even without invoking the presumption under Section 35 of the NDPS Act, which is a presumption of law, the presumption of fact under Section 114 of the Evidence Act would easily arise against accused No. 1. It was for accused No. 1 to show as to how he came to be in possession of the articles which were found in the Fiat car which he was driving. He has not offered any explanation either for possession and driving of the said Fiat car or the articles found in the Fiat car. Accused No. 1 having failed to offer any such explanation and having failed to produce any permit or license for the same, it has to be held that accused No. 1 was possessing and transporting methaqualone - a psychotropic substance in contravention of the provisions of the NDPS Act and was, therefore, guilty of the offence punishable under Section 22 of the Act.
16. As far as the role of accused No. 1 in manufacturing the mandrax tablets is concerned,-
16.1 The learned APP has submitted that in view of the evidence of PW 6 Shashikant Chunilal Kansara (Exh.94), PW 7 Dinbhandhu Shabhuram (Exh.95), PW 15 Maksud Mohamad (Exh.119), PW 9 Sureshkumar Hargovinddas (Exh.96), PW 9 Narendrabhai Chunilal Rane (Exh.98) and PW 13 Deelawar Bismilla (Exh.110), it is clear that accused No. 1 was involved in the manufacturing activity.
16.2 Mr BS Patel, learned counsel for respondent-accused No. 1 has, however, vehemently submitted that the learned trial Judge has given a finding in favour of accused No. 1 in so far as the charge of manufacturing or abetment of manufacturing activity is concerned and the State has not filed any acquittal appeal in respect of the said finding and, therefore, it is not open to the State to make any such submission on this aspect.
16.3 We are not inclined to accept the aforesaid preliminary objection. The trial Court has already convicted accused No. 1 of the offence punishable under Section 22 of the Act which provides that whoever, in contravention of any provision of the Act ... ... produces, manufactures, possesses, ... transports any substance with any psychotropic substance, shall be punishable with rigorous imprisonment for term commencing from ten years to twenty years and also shall be liable to fine commencing from Rs. one lakh to Rs. two lakh and that the Court may, for reasons to be recorded, impose a fine exceeding two lakh rupees. In our view, once the trial Court convicted accused No. 1 of the offence punishable under Section 22 of the Act, it is open to the State to urge in the enhancement appeal under Section 377 Cr.PC. that the accused-convict is liable to be visited with more severe sentence than the sentence awarded by the trial Court and for this purpose, the prosecution is not to be tied down to all findings given by the trial Court. It is open to the prosecution to challenge a finding given by the trial Court in favour of the accused without filing an acquittal appeal.
Involvement in manufacturing
17. As far as manufacturing of mandrax tablets is concerned, there is a lot of common evidence against accused No. 1 - Nazir Ahmed Ismailji Chikhlivala and accused No. 3 Shivpratapsing @ Munnabhaiya Narendrasing. The prosecution examined seven witnesses to connect accused Nos.1 and 3 with the purchase of machineries and equipments and dies far tablets and also purchase of raw materials for manufacturing tablets which were found to be containing methaqualone. Since the trial Court has not given any finding that any of the accused was involved in manufacturing activity, it has become necessary to set out the evidence about manufacturing activity in some detail :-
17.1 PW 4 Surjitsinh Ratansinh (Exh.91) is in the business of manufacturing machines for manufacturing tablets for the last 15 to 16 years. Accused No. 3-Munnabhaiya had gone to this witness sometime in the year 1995 and had taken this witness to a village for repairing a machine. This witness identified the machine bearing muddamal article No. 21 which was seized from the wadi to which accused No. 1 had taken the police party and which is referred to in panchnama (Exh. 125) as aforesaid. The witness was specifically asked whether accused No. 3 had gone to him alongwith somebody else. The witness looked at the accused for a considerable time, but did not reply. The learned Public Prosecutor was, therefore, permitted to confront this witness with the police statement wherein he had stated that accused No. 3-Munnabhaiya and accused No. 1-Nazir Ahmad had both gone to the factory of this witness stating that they had bought a machine for manufacturing tablets, but it was not working properly. The witness has stated in cross by the accused that the machine can be used for manufacturing any kind of tablets.
17.2 The prosecution also examined PW 6 Sashikant Chunilal (Exh.94) who was doing the job work of making dies and was doing this business in the name of Nirav Engineering. About a year and a half before the date of deposition (i.e. before 10.9.1997), accused No. 3Munnabhaiya and accused No. 1-Nazirbhai had gone to this witness for making punches stating that the accused wanted to make ayurvedic tablets. The witness asked for a sample and accused Nos.1 and 3 gave a sample. For such sample, they had taken the witness to Geeta Pharma which manufactures tablets and from that place the said witness was given the samples for dies and punches. This witness further stated that the said two accused had asked the witness to make a design with English alphabet "M" or "W" on one side and swastik/flower on the other side. Since the witness could not prepare such a design, he got it done in Mumbai and there were 16 such dies got made by him for which the price of Rs.48,000/- was fixed, but only Rs.19,000/- was paid. The rest of the amount was not paid. There were 16 sets, each set containing two punches and one die. this witness identified both accused No. 1-Nazir Ahmad and accused No. 3-Munnabhaiya before the Court. However, the witness stated that he was not is a position to state as to whether the die bearing muddamal article No. 35 was made by him or not. In cross examination at the instance of accused Nos. 1 and 3, the witness denied that accused Nos. 1 and 3 had not gone to this witness for placing any order of die and punch.
17.3 PW 7 Dinbhandhu Shabhuram Vora (Exh.95) is the owner of Geeta Pharma and Geeta Lab manufacturing machines and equipments for manufacturing tablets. This witness stated that in the year 1996, he received a call from Maksudbhai that a Hakim friend of his wanted a machine for manufacturing ayurvedic tablets. Thereafter, a person had gone to the factory of this witness for purchasing a machine. This witness had shown three machines to him. On the next day, that person came with another man and that was accused No. 1-Nazir Ahmad who is identified by the witness before the Court. That person gave Rs.1,000/- as earnest money after fixing the price at Rs.28,000/-. A few days thereafter, Maksudbhai rang up this witness stating that Maksudbhai had received the balance Rs.27,000/- and that the machine may be handed over to that person. A month thereafter, accused No. 1 had gone to the factory of the witness with a tempo and taken delivery of the machine without taking the bill.
17.4 PW 15 Maksudbhai Mahmadbhai Siliwala (Exh.119) is a dealer in commercial vehicles (DCM tempo) and motorcycles. This witness stated that he knew Bakarbhai, younger brother of accused No. 1-Nazir Ahmad, as Bakarbhai's land is adjoining the land of the witness in village Sili in Dadranagar Haveli. Accused No. 1 had gone to the shop of this witness and spoken about purchasing a machine for manufacturing tablets. As such machine was required by a Hakim, this witness (Maksudbhai) talked to Vora on telephone and Vora informed that he had an old machine. The witness thereupon conveyed the information to accused No. 1-Nazir. A month thereafter, accused No. 1 went to the witness and stated that he could not find the address of the factory of Vora and that Vora had sent his man to the office/shop of this witness (Maksudbhai). This witness thereafter did not know about any further development. The witness was declared hostile and was confronted with his police statement wherein he had stated that one month after the talk about a Hakim wanting a machine for manufacturing tablets, accused No. 1-Nazir had gone to the shop of the witness in a Fiat car and had stated about not being able to get the address of Geeta Pharma manufacturing machines and he had deposited an amount of Rs.27,000/- with the witness as per the talk with Vora and thereafter he had handed over the amount of Rs.27,000/- to the man of Vora as per the telephonic talk. In his cross examination, this witness denied the suggestion made by accused No. 1 that the witness had no talk with accused No. 1 regarding purchase of a machine for manufacturing tablets.
17.5 PW 8 Sureshkumar Hargovinddas (Exh. 96) stated that he had sold 3 flasks, 3 heating machines, 3 oil condensers and 3 B.N. Star to accused No. 3-Munnabhaiya. He produced the challan at Exh. 97. The raw material was sold for Rs.26,000/-, out of this Rs.20,000/- was received. This witness identified the items being muddamal article No. 22 as those purchased from this witness. This witness also gave the registration number of the tempo in which the materials were taken delivery. The delivery challan (Exh.97) was prepared as required by accused No. 3 who had come to take delivery.
17.6 PW 10 Ketanbhai Ishwarlal Shah (Exh. 99) is engaged in courier service business. It is stated that accused No. 3-Munnabhaiya had gone to him once or twice about a year and a half prior to the date of deposition, stating that a friend of his wanted to start a chemical factory. Hence, he requested the witness to suggest a Company from which such factory equipments are available. Accordingly, the witness suggested K.G. Company and accompanied accused No. 3 to the said Company. The witness, however, did not know as to what transaction accused No. 3 had with K.G. Company. The witness was declared hostile and was confronted with the police statement wherein he had stated that he had accompanied accused No. 3 to K.G. Company and introduced him to Ranjitbhai Sheth of the said Company and 3/4 days thereafter accused No. 3 had come with a person in a Fiat car bearing Maharashtra registration number and accused No. 3 had introduced that person to the witness as Nazirbhai (accused No. 1); it was further stated in the police statement that the witness alongwith accused Nos. 1 and 3 had gone to K.G. Company in GIDC Estate, Vapi and had placed an order for buying materials, glass flasks etc. and paid advance of Rs.5,000/- and that thereafter accused Nos. 1 and 3 had taken delivery directly from that Company.
17.7 PW 13 Deelawar Bismilla (Exh.110) is engaged in the business of scrap at Vapi. This witness also turned hostile. The witness was also confronted with the statement given by the witness before the Executive Magistrate under Section 164 Cr.PC at Exh. 162 on 29.10.1996. The witness had stated therein that accused No. 3-Munnabhaiya had met the witness in December, 1995 for getting acetic anhydride; the witness knew Ranjitbhai, owner of Seema Chemical Works. The witness talked to Ranjitbhai who informed the witness that Dayal Dyes sells acetic and anhydride. Ranjitbhai had a talk with accused No. 1, accused No. 3 and accused No. 4. Accused No. 1 and accused No. 3 had purchased anhydride from accused No. 4 at the rate of Rs.120/- per ltr. and accused No. 1.
18. We may at this stage note the reasoning given by the trial Court for giving the finding in favour of accused on this score. The trial Court has proceeded on the basis that the charge against all the accused was that the farm in question was of the ownership of Deviben Ballubhai and was in occupation of accused No. 6-Ballubhai Tandel and that they were manufacturing mandrax tablets and accused Nos.3, 4 and 5 were supplying machineries and raw materials to them through accused Nos.1 and 2, but accused No. 6 is not found to be either owner or occupier of the land in question, hence the entire prosecution case has fallen through and, therefore, even accused Nos. 1 to 5 cannot be convicted of the offence of manufacturing or abetting manufacturing a psychotropic substance.
19. The trial Court has, however, found that the manufacturing activity of mandrax tablets which are found to be containing methaqualone, (a psychotropic substance) on the land in question is proved beyond reasonable doubt. The machineries, equipments, dies and the raw materials for manufacturing the mandrax tablets were found from the land in question at the instance of accused No. 1 who had taken the police and the panchas to the farm in question and even at the farm, the room where the tablets were being manufactured was shown by accused No. 1 to the panchas. Even the pits where the machineries, equipments, raw materials and manufactured tablets were concealed, were shown by accused No. 1. More importantly, as discussed in para 17, accused No. 1 and 3 were purchasing machineries, equipments and dies for manufacturing mandrax tablets. Apart from discovery at the instance of accused No. 1 of all these items which were used for manufacturing the tablets, the evidence of PW 7 Dinbhandhu Shabhuram Vora (Exh.95) and PW 15 Maksudbhai Mahmadbhai Siliwala (Exh.119) clearly show that accused No. 1 had gone to purchase the machineries and equipments from Geeta Pharma and Geeta Lab. and that the purchase price was paid by accused No. 1. Accused Nos.1 and 3 had also gone to PW 6 Sashikant Chunilal (Exh.94) for getting dies and punches made for manufacturing tablets with English alphabet "M" or inverted "W" at one side and swastik/flower on the other side. The tablets containing methaqualone seized from the Fiat car as well as from the farm in question in village Kalai are all found to be bearing the same design with "M" or "W" one side and swastik/flower on the other side. The dies and punches were purchased in 16 sets, each set containing two punches and one die. This witness also identified both accused Nos.1 and 3 before the Court. From the evidence of PW 8 Sureshkumar Hargovinddas (Exh.96), PW Narendrabhai Chunilal Rana (Exh.98) and also PW 13 Deelawar Bismilla (Exh.110) read with Exh.162, it is also clear that accused No. 3 had gone to purchase the equipments and materials for starting a chemical factory. It is thus clear that both accused Nos.1 and 3 were actively involved in purchasing machineries and equipments, dies and punches necessary for manufacturing tablets which are found to be mandrax tablets containing methaqualone as per the FSL report and also for purchasing raw materials for manufacturing such tablets. What transpires from the evidence on record is that it was accused No. 1 who was taking the initiative for establishing the entire set up for manufacturing a large number of mandrax tablets and accused No. 3 was actively assisting accused No. 1 in such purchases. There is no direct evidence of the actual manufacturing operations, but, in our view, the aforesaid evidence is sufficient to prove beyond reasonable doubt that accused No. 1 was manufacturing at the farm in question the mandrax tablets seized from the Fiat car and the farm in question and that accused No. 3 was actively assisting him. The finding on the question whether accused No. 6-Ballubhai Tandel was manufacturing or was not manufacturing the mandrax tablets does not dislodge the aforesaid clinching evidence against accused Nos.1 and 3 and the finding in favour of accused No. 6 cannot obliterate the active involvement of accused Nos.1 and 3 in manufacturing the mandrax tablets. Hence, the finding given by the trial Court on the aforesaid aspect has to be treated as perverse and manifestly erroneous and palpably wrong.
20. In view of the above voluminous evidence, we hold that accused No. 1 was guilty of the offence of possessing as well as manufacturing psychotropic substance called "Methaqualone" punishable under Section 22 of the NDPS Act and that accused No. 3 was guilty of the offence of abetting manufacturing of psychotropic substance called "Methaqualone" punishable under Section 22 read with Section 29 of the NDPS Act.Accused No. 2
21. Coming to accused No. 2-Gulabbhai Mitthalbhai Patel -, 21.1 Mr SV Raju, learned counsel for the appellant in Criminal Appeal No. 862 of 1999 has vehemently submitted that accused No. 2 was merely a passenger in the Fiat car which was being driven by accused No. 1. Nothing was found either from the person of accused No. 2 or from his residence. The plastic bag and the cloth bag found to be containing contraband articles were lying in the rear seat of the car and even as per the statements made in the panchnama, the contraband articles were not visible from outside without opening the plastic bag and the cloth bag, as the tablets were contained in eight polythene bags contained in the plastic bag and seven polythene bags contained in the cloth bag. Even when the Fiat car was intercepted, the two bags containing contraband articles were produced by accused No. 1 before the police and even thereafter it was at the instance of accused No. 1 that the police and the panchas discovered the wadi (farm) where the tablets were being manufactured and the machineries, raw materials and other things used for manufacturing the tablets were shown by accused No. 1 and not by or at the instance of accused No. 2.
21.2 It is further submitted by Mr Raju that accused No. 2 travelling in the car at 5.45 in the morning cannot be said to be an unusual event as people do take a lift from the cars passing on a highway or a main road. It is further submitted that the trial Court has erred in drawing an adverse inference against accused No. 2 for not offering any explanation in the statement under Section 313 Cr.PC. and that the question of invoking the presumption under Section 35 of the NDPS Act cannot arise before the prosecution first establishes that the accused was in possession of the contraband articles. Such possession has to be conscious possession. The learned Counsel has heavily relied on the decisions in Avtar Singh vs. State of Punjab, (2002) 7 SCC 419, Ismailkhan Aiyubkhan Patan vs. State of Gujarat, (2000) 10 SCC 257 Aiyubkhan Patan vs. State of Gujarat, (2000) 10 SCC 257, Mohd. Ali Naved vs. State of MP, 2001 (2) EFR 217 and Munnalal Mathura Prasad vs. State, 1996 (1) GLR 162.
21.3 As against the above submissions, Mr KC Shah, learned APP has submitted that accused No. 2 was travelling in the car which was containing contraband tablets in such a large number and no explanation is offered by accused No. 2 as to why he was travelling in the Fiat car being driven by accused No. 1 carrying such a large number of contraband tablets at 5.45 in the morning. He has further submitted that Section 35 of the NDPS Act is clearly applicable in the facts of the case as the Court is required to presume the knowledge of the contraband articles in the mind of accused No. 2 as provided in the explanation to Section 35. Otherwise, Section 35 of the Act would be rendered nugatory.
21.4 We have given our anxious thoughtful consideration to the rival submissions. In Avtar Singh vs. State of Punjab, (2002) 7 SCC 419, Ismailkhan Aiyubkhan Patan vs. State of Gujarat, (2000) 10 SCC 257 and Mohd. Ali Naved vs. State of MP, 2001 (2) EFR 217, the Courts have taken the view that mere presence of the accused in a vehicle carrying contraband articles does not necessarily warrant the presumption that the accused had the knowledge of the contraband articles being carried in the vehicle. The Apex Court in the above cases as well as this Court in Munnalal Mathura Prasad vs. State, 1996 (1) GLR 162 have held that before presumption under Section 35 of the Act can be raised, it must be shown that the accused had the custody of the contraband articles. We have to bear in mind the caveat sounded by the Apex Court in Avtar Singh vs. State of Punjab, (2002) 7 SCC 419 that presumption under Section 35 which relates to culpable state of mind cannot be resorted to without considering the aspect of possession. The Apex Court has further stressed upon the importance of requiring the trial Court to put appropriate questions to the accused under Section 313 Cr.PC. The object of such examination is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. The failure to elicit an answer from the accused on a crucial aspect against the accused will cause serious prejudice to the accused even when a presumption of fact is raised under Section 114 of the Evidence Act. We may add that such prejudice is bound to be aggravated when the Court is required to raise a statutory presumption like the one under Section 35 of the NDPS Act against the accused on his failure to explain such circumstance, making an inroad into the traditional criminal jurisprudential concept of the accused's right of silence. Hence it would not be unreasonable to expect the trial Court to caution the accused that in view of the statutory presumption failure to answer questions on crucial aspects being put to the accused may result into conviction of the accused for the offence for which he is being tried. Although such statutory presumptions are held to be constitutional, it will be unfair to the accused to raise statutory presumptions like one under Section 35 of the NDPS Act without putting appropriate questions to the accused under Section 313 Cr.PC., especially when there is no evidence or material which connects the accused with the contraband article lying in the vehicle and the accused is not shown to have any custody or control over such article. No material was found from the person of accused No. 2 or from his residence nor was any discovery made at the instance of accused No. 2. It is also necessary to note that even the prior information, which Dy.SP Mr Chudasama of ATF received, was only regarding accused No. 1 being involved in the transport of psychotropic substances and in the said information, the name of accused No. 1 with his address and the registration number of the Fiat car were specifically given, but no reference whatsoever was made to accused No. 2 being involved in any such activity.
21.5 In view of the above discussion, it is not possible to invoke the presumption under Section 35 of the Act against accused No. 2. It is not unknown that people may take lift from the cars or vehicles passing on the road whether the cars belong to acquaintances or strangers. Mere presence in a vehicle as a passenger would not fasten the passenger with the knowledge of all the articles being carried in the vehicle by the driver or the other passengers travelling in the vehicle. Of course, whether the presumption as required by Section 35 of the Act may be invoked or not is a question to be decided in the facts and circumstances of each case and, therefore, we may not be treated as having laid down any general principle. In the facts and circumstances of the case, the prosecution has not proved beyond reasonable doubt that accused No. 2 was in custody of the contraband articles when the same were being carried in the Fiat car in question.
22. In so far as the role attributed to accused No. 2 in manufacturing activity is concerned, the prosecution did not lead any evidence whatsoever to connect accused No. 2 with the manufacturing activity. There is only one witness PW 11 Khandubhai Ravjibhai (Exh. 100) who was engaged in the business of transporting goods between Daman and Bombay. He stated that he had not carried any goods of accused No. 2-Gulabbhai. He was declared hostile and confronted with his police statement wherein he had stated that on 30.10.1995 when the witness was standing on the GIDC cross roads with his tempo, Gulabbhai Patel (accused No. 2) had gone to the witness to hire the tempo and accused No. 2 had required the witness to take the tempo to Chem Traders Company. Accused No. 2 was accompanied by a boy and the witness had taken 5 to 6 carboys and a few bags from Chem Traders and alongwith accused No. 2, the witness had carried the same and unloaded them at a farm in village Kalai. The witness was confronted with his police statement wherein a reference was made to accused No. 2 hiring the tempo of the said witness to transport some materials from Vapi to a wadi in village Kalai. Apart from the fact that this witness has not stated anything in his evidence to connect accused No. 2 with any such manufacturing activity, the witness has not even given the description or address of the place where accused No. 2 had taken the materials apart from referring to a farm in village Kalai or to the nature of the material. It would, therefore, be unsafe to connect accused No. 2 with the manufacturing activity when no other witness has made even a whisper against accused No. 2.Accused No. 4
23. Coming to accused No. 4-Joginder @ Jagubhai Haricharan Jindal, the only material relied upon by the prosecution for roping him in is the statement dated 29.10.1996 of Deelawar Bismilla (Exh.110) before the Executive Magistrate under Section 164 Cr.PC. In the said statement , all that Dilawar had stated was that accused Nos.1 and 3 had gone to the owner of Dayal Dyes and accused No. 4 had supplied them anhydride acid. PW 19 Punambhai R Chaudhari (Exh.144), owner of Dayal Dyes, has stated that no anhydride acid was supplied from his factory to any person and that the entire record relating to the said product is maintained in a register and the extracts from the said register were also produced before the Court. It is further important to note that accused No. 4 is an employee of Dayal Dyes and there is no allegation or charge against accused No. 4 that he is involved in the manufacturing of the contraband tablets or that accused Nos.1 and 3 had informed accused No. 4 about the purpose for which they wanted anhydride acid, assuming that accused No. 4 had helped them in purchasing such material.
In view of the above discussion, it is not possible to hold that the prosecution has established beyond reasonable doubt that accused No. 4 was involved in manufacture, or abatement of manufacture, of the contraband tablets.
Accused No. 524. Coming to accused No. 5-Makhanlal Kharbhar Sharma-, 24.1 the only material relied upon by the prosecution is the evidence of PW 14 Kirtikumar Anantrai (Exh.111) of Chem Trade which is engaged in the business of chemical trading. The said witness stated that accused No. 5 had purchased tarlune, HCL and caustic. The said witness produced Exhs. 112 to 116. Exh. 112 is the cash memo issued by Chem Trade in the name of Super Chemicals of Daman on 30.10.1995 for the sale of above materials worth Rs.5,420/-. Exh.113 is the invoice issued by Shakti Chemical Industries of Vapi in the name of M/s Chem Trade as a consignee for Ortho Tolvidine worth Rs.7,400/- on 10.11.1995. Exh.114 is the receipt dated 10.11.1995 issued by Shakti Chemical Industries in favour of Chem Trade regarding receipt of Rs.9,413/- in cash for the aforesaid Bill No. 140 dated 10.11.1995. Exhs. 115 and 116 are the invoices issued by Western Chemical and Arbuda Acid & Chemical Co. to the Oil Distributors, GIDC, Vapi for sale of caustic soda and HCL acid respectively on 30.10.1995 and 17.10.1995.
24.2 However, the aforesaid documents at Exh.112 to 116 do not connect accused No. 5 with any of the purchases. Nothing is shown as to how accused No. 5-Makhanlal Sharma is connected with the oil distributors. Moreover, Investigating Officer PI Mr BB Patel (PW 28, Exh.192) has admitted in para 56 of his deposition that the chemicals shown to have been purchased by accused No. 5 from Kirtikumar Anantrai were not any banned or controlled articles. So also no evidence is led to show that the materials allegedly purchased by accused No. 5 under the aforesaid invoices were supplied by him to accused Nos.1 and 3 or to the wadi of Deviben for the purpose of manufacturing any product there.
24.3 In view of the above material, the prosecution has failed to prove beyond reasonable doubt that accused No. 5 was involved in manufacturing or abetment of manufacturing contraband tablets at the farm of Deviben Ballubhai.
Accused No. 625. Coming to accused No. 6-Ballubhai @ Bhagwanbhai Somabhai Tandel -, 25.1 The learned APP has vehemently urged that as per the revenue record produced by the Talati-cum-Mantri at Exhs. 151 to 153, the land in question belonged to Deviben, wife of accused No. 6. Deviben herself has been absconding since the date of the incident and accused No. 6 himself was also absconding for almost one year after the date of the incident. Although accused No. 6 was technically not the owner of the premises being the land and the building thereon, he was atleast occupier or the person in control of the premises where the contraband articles were manufactured and, therefore, the prosecution is entitled to invoke the provisions of Section 25 read with Section 35 of the Act.
Section 25 reads as under :-
"25. Punishment for allowing premises, etc., to be used for commission of an offence.- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees :
Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
25.2 As against the above submission, learned counsel for respondent No. 6 has submitted that respondent No. 6 cannot be roped in merely because he happens to be the husband of Deviben in whose name the land stands as per the revenue record. The prosecution has not led any evidence to show that accused No. 6 was in occupation of the land in question or was in control of the same. The panchnama (Exh.125) also clearly shows that when accused No. 1 took the police and the panchas to the wadi and when accused No. 1 was asked as to where the manufacturing activity was being carried on, he had taken the police party to one room where there was an electric switch board and there were also loose wires hanging from the roof of the room clearly indicating that whoever was the person involved in or connected with manufacturing contraband tablets was manufacturing in that room and that before the police party arrived, somebody removed those machineries and concealed them in pits covered by hay or mud. It is, therefore, submitted that since even as per the material produced by the prosecution, the so called manufacturing activity was going on inside the room and clandestinely, accused No. 6 cannot be fastened with the knowledge of any such manufacturing activity being carried on in the premises belonging to his wife. Accused No. 6 who was present before the Court stated that the wife of accused No. 6 had got the land from her father and that she had let the land with mango and chikoo plantations to accused No. 1 for an annual rent of Rs.25,000/- or thereabout, but she had deserted accused No. 6 prior to the incident in question and that accused No. 6 is staying in a house away from the farm in question and is engaged in fishing and that, therefore, he is away from the farm in question and even the village for considerable long periods.
25.3 We find that there is no material - no documentary or oral evidence - to show that accused No. 6 was in occupation or in control of the land in question or the two rooms constructed thereon. At the cost of repetition, we may state that before invoking the presumption under Section 25 read with the one under Section 35 of the NDPS Act, we have to bear in mind the caveat sounded by the Apex Court in Avtar Singh vs. State of Punjab, (2002) 7 SCC 419 that presumption under Section 35 which relates to culpable state of mind cannot be resorted to without considering the aspect of possession. The Apex Court has further stressed upon the importance of requiring the trial Court to put appropriate questions to the accused under Section 313 Cr.PC., the object of which is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. The failure to elicit an answer from the accused on a crucial aspect against the accused will cause serious prejudice to the accused, particularly when the Court is required to raise a statutory presumption against the accused on his failure to explain such circumstance. This duty of the Court assumes great significance whenever the Court is to raise any such statutory presumption making an inroad into the traditional criminal jurisprudential concept of the accused's right of silence. Although such statutory presumptions are held to be constitutional, it will be unfair to the accused to raise statutory presumptions like the one under Section 25 or Section 35 of the NDPS Act without putting appropriate questions to the accused under Section 313 Cr.PC., (especially when he has not examined himself as a witness or led any evidence) and without cautioning the accused that in view of the statutory presumption failure to answer questions on crucial aspects being put to the accused may result into conviction of the accused for the offence for which he is being tried.
25.4 We find from the statement of accused No. 6 under Section 313 Cr.PC. that the only questions which the trial Court had put to accused No. 6 having relevance to the provisions of Sections 25 and 35 were as under :-
"Q. The witnesses have stated that, upon inquiry, the servant working in the wadi had stated that the wadi is of Ballubhai Somabhai. What do you have to say about that ?
Ans. It is wrong.
Q. Shri BB Patel has stated that the wadi at village Kalai was of Ballubhai Somabhai Tandel and the land was in the name of Deviben Ballubhai Tandel. What do you have to say about that ?
Ans. Not true."
We also find from the statements of all the six accused in the present case that the same questions are put to all the six accused though most of the questions had relevance either to accused Nos. 1 and 3 for their manufacturing activity or to the question of search and seizure of tablets from the Fiat car. Accused No. 6 was admittedly not travelling in the Fiat car nor was any role in the manufacturing activity was even alleged against him. He was sought to be connected only on the basis of the statutory presumptions under Sections 25 and 35 operating against the owner or occupier of the land/building in question and any person in control thereof. The trial Court had not put any question to accused No. 6 about his not being available for arrest for almost one year which was a circumstance sought to be relied upon by the learned APP. Of course failure to explain this circumstance could entail drawing an inference or a presumption of fact under Section 114 of the Evidence Act. But even such circumstances are required to be covered by the examination under Section 313 Cr.PC., as observed by the Apex Court in Avtar Singh. We had, therefore, put question to accused No. 6-Ballubhai Tandel about the aforesaid circumstance when he appeared before us at the hearing of the appeals. Accused No. 6 replied that his residence was on another land and that he was engaged in fishing and that he had to be away from the farm and village for considerable long periods and that his wife had deserted him before the incident in question; that his wife had got the land from her father and she had given the land with plantations to accused No. 1 for an annual rental of Rs.25,000/-.
25.5 In view of the above, we are of the view that accused No. 6 is entitled to get the benefit of doubt and, therefore, the prosecution has failed to prove beyond reasonable doubt that accused No. 6 was guilty of the offence punishable under Section 25 of the Act.
18th September, 2003 LEGAL CONTENTIONS
26. Mr BS Patel for accused No. 1, (appellant in Criminal Appeal No. 1026 of 1999) has made the following submissions about the breach of the provisions of the NDPS Act while searching the accused and the Fiat car and seizing the tablets in question in the morning of 27.5.1996 :-
26.1 The search of the appellant accused was in violation of the mandatory provisions of Section 42 of the Act inasmuch as the so-called information received by Dy SP Mr Chudasama was not taken down in writing and even if it was taken down in writing, a copy of such information in writing was not sent to his immediate official superior as required by subsection (2) thereof.
Strong reliance is placed on the decisions of the Apex Court in Abdul Rashid Ibrahim Mansuri vs. State of Guajrat, 2000 (2) SCC 513 = AIR 2000 SC 821, Bechodan Abdul Rahiman vs. State of Kerala, 2002 (4) SCC 229 = AIR 2002 SC 1810 and also on the decision of Bombay High Court in Abdul Rehman Fakir Mohammed Durani vs. State of Maharashtra, 2001 CrLJ 4844 and the decision of the Kerala High Court in Subash vs. State of Kerala 2000 CrLJ 1945.
26.2 The officers who carried out the search did not inform the accused about the right to be searched before a gazetted officer or an Executive Magistrate and, therefore, there was breach of the mandatory provisions of Section 50(1) of the Act.
26.3 There was also violation of the provisions of Section 47 of the Act as the report of arrest and seizure was not made immediately to the immediate superior official.
26.4 There was also breach of the mandatory provisions of Section 55 inasmuch as the muddamal articles seized from the Fiat car were not kept in safe custody.
26.5 There was breach of the provisions of sub-sections (2) and (4) of Section 52A as the primary evidence was not produced.
27. In reply, Mr KC Shah, learned Additional Public Prosecutor has submitted as under:-
27.1.1 Since the search was made by Mr Chudasama, Dy SP and Mr BB Patel, PI, both of whom were gazetted officers, the said officers were officers empowered under Section 41(2) as per the gazette notification No. GH-L-14-NDS-1087(i)-M dated 15.6.1985 and another notification bearing No. GH/L/NDS/1087/10577 (iii)-M dated 15.6.1985 and, therefore, the said officers did not require any authorization from any superior officer and consequently neither the provisions of subsection (1) nor subsection (2) of Section 42 were applicable.
Strong reliance is placed on the decision of another Division Bench of this Court in Abdul Salam Yusuf Sheikh vs. State of Gujarat, 2003 (2) GLR 1643.
27.1.2 In any view of the matter, the car was searched and so also the accused were searched in a public place and the articles were seized from the car when it was in transit in a public place and, therefore, the provisions of Sections 49 and 43 were applicable. For this reason also, there was no question of applying the provisions of Section 42, much less the provisions of subsection (2) of Section 42 of the Act.
Strong reliance is placed on the decisions in Sayar Puri vs. State of Rajasthan, 1998 (7) SCC 441, Narayanaswamy Ravishanker vs. Assistant Director, Directorate of Revenue Intelligence, 2002 (8) SCC 7, Ravishankar Bhagwatiprasad Mishra vs. State of Gujarat, 2000 (1) GLR 137, Aslam Ibrahim Memon & Anr. vs. State of Gujarat, 1990 Cr LJ 1787, the decision dated 5/6 February, 2002 of this Court (Coram : Hon'ble Mr Justice JM Panchal and Hon'ble Mr Justice AM Kapadia) in Raghubhai Bharwad vs. State of Gujarat, Criminal Appeal No. 12 of 2002 and the decision of Punjab & Haryana High Court in Dharminder Kumar vs. State of Punjab 2003 (1) Crimes 19.
27.1.3 Lastly, it is submitted, without prejudice to the above legal submissions, that Mr Chudasama had reduced the information received by him in writing and forwarded the same to DIG ATS, Ahmedabad in the morning of 26.5.1996 when Mr Chudasama was on the way from Bharuch to Vapi and that, therefore, even if the provisions of Section 42 were applicable, there was full compliance with the same.
27.2 As regards the compliance with the provisions of Section 50 of the Act, it is submitted that the Dy SP and the PI had informed both the accused i.e. accused Nos. 1 and 2 that their search could be made in presence of another gazetted officer or an Executive Magistrate and that, therefore, there was full compliance with the provisions of Section 50 of the Act also.
Strong reliance is placed on the decision of a Full Bench of this Court in Bherulal Viraji Kumavat vs. State of Gujarat, 1998 (3) GLR 2497.
It is submitted that in any view of the matter Section 50 is applicable when the person of the accused is to be searched, but in the present case the 15000 mandrax tablets were found from the rear seat of the Fiat car.
27.3 As regards the other legal submissions, the learned APP has relied on the judgment of the trial Court.
CONTENTION NO. 1 WAS SECTION 42(2) OF NDPS ACT APPLICABLE ?
28. In the facts of the instant case, the learned APP has submitted that assuming that Section 42 was applicable, Dy SP Mr Chudasama after receiving the information and before proceeding to Vapi did inform Dy. Inspector General of Police through the letter dated 26.5.1996 vide Ex.187 (Page 845) in the following terms (as translated):-
"Nazir Ahmed Ismail Chikhliwala is unauthorisedly manufacturing narcotic substance near Moti Daman and is transporting the same from Moti Daman to other cities in Gujarat via Vapi by transporting the same. Today or tomorrow, he is going to smuggle such contraband substance into Gujarat from Moti Daman via Vapi in his Fiat car No. MMF 1066. I have proceeded from Bharuch to Vapi along with the informant to scrutinise and verify the above information which Your Honour may note.
sd/-
(AD Chudasama) Dy. Superintendent of Police ATS, Ahmedabad.
Date 26.5.1996."
The learned counsel for the appellant accused has, however, vehemently submitted that merely producing a office copy of the information sent by the Dy. SP to the higher officer cannot be said to be proof of the information having been sent to the superior officer when no evidence is led about receipt of the said letter by the superior officer nor is the personal messenger who allegedly conveyed the above letter examined.
It is true that PW 27 Dy.SP Mr Chudasama has stated that such information was sent to the superior officer on 26.5.1996, but in absence of examination of the personal messenger along with whom the information was conveyed to the superior officer or in absence of examination of any person in the office of the superior officer acknowledging receipt of the said information, the question will arise whether the provisions of subsection (2) of Section 42 were complied with or not.
29. We have given our anxious thoughtful consideration to the contentions raised by the learned counsel for the appellant accused about applicability of Section 42 in a case where the empowered Gazetted police officers search a vehicle in transit in a pubic place. The learned counsel for the appellant accused has heavily relied on the judgment of the three Judge Bench of the Apex Court in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, 2000 (2) SCC 513 and contended that the test for determining whether the provisions of Sections 41 and 42 would apply or whether the provisions of Sections 43 and 49 would apply is whether the police officers are carrying out the search pursuant to prior information received or not. It is contended that if such search is made by a police officer pursuant to the prior information received then necessarily Sections 41 and 42 would apply irrespective of the fact whether the search is carried out in a private place or in a public place or whether the search is of a person or of a vehicle.
On the other hand, the learned Addl. Public Prosecutor has relied on the decisions of the Apex Court in Sayar Puri vs. State of Rajasthan, 1998 (7) SCC 441 and Narayanswamy Ravishanker vs. Assistant Director, Directorate of Revenue Intelligence, 2002 (8) SCC 7 (the latter by a three Judge Bench) taking the view that the provisions of Section 42 would not apply and that the provisions of Section 43 would apply when the search of any person or a vehicle in transit is carried out in a public place. The same view was taken by this Court in Aslam Ibrahim Memon & Anr. vs. State of Gujarat, 1990(1) GLR 150, Ravishanker Bhagwatiprasad Mishra vs. State of Gujarat, 2000(1) GLR 137 and the judgment dated 5/6 February, 2002 in Raghubhai Bharwad vs. State of Gujarat, Criminal Appeal No. 12 of 2002 and also in a recent decision of the Punjab & Haryana High Court in Dharminder Kumar vs. State of Punjab 2003 (1) Crimes 19.
30. In view of the above controversy, we have considered it necessary to analyze the relevant provisions of the NDPS Act being Sections 41, 42, 43, 49 and 51 as contained in Chapter 5 of the NDPS Act providing the procedure for arrest, search and seizure in relation to the offences under the said Act.
All the relevant sections are not set out verbatim but the provisions are set out after compressing various elaborate expressions into single words or expressions in order to focus on the controversy raised before this Court, if not to illustrate the kindness which the Legislative draftsman could have shown to all concerned -
(i) the different classes of magistrates competent to issue warrant have been referred to as "a magistrate".
(ii) the names of all the departments of the Central and the State Government specified in Sections 41 and 42 are not given except the police department.
(iii) any officer (above the rank of peon, sepoy or constable) in whose favour the empowered gazetted officers can give authorization under Section 41(2) is described as "any officer (above the rank of a constable)".
(iv) The words "any such officer as is empowered in this behalf by general or special order by the Central Government" are condensed into "an empowered officer".
(v) The words, "any offence punishable under Chapter IV" are expressed through the phrase "any NDPS
(vi) The words, "any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed" are referred to as "any contraband substance". (vii) The words, "any document or article which may furnish evidence of the commission of such offence" are compressed into "evidence relating thereto".
(viii) In Sections 43 and 49, the words "animal, conveyance or aircraft" are referred to as "conveyance".
41. Power to issue warrant and authorization (1) A Magistrate may issue a warrant for the arrest of any person whom he has reason to believe to have committed any NDPS offence or, for the search, whether by day or by night of any building, conveyance or place in which he has reason to believe any contraband article or evidence relating thereto is kept or concealed.
(2) Any empowered officer of gazetted rank of the mentioned departments or any other department of the Central Government, or, of the BSF, or any such empowered officer of the police or other mentioned departments or of any other department of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any person has committed any NDPS offence, or that any contraband article or evidence relating thereto has been kept or concealed in any building, conveyance or place, may authorize any officer (above the rank of a constable) subordinate to him to arrest such a person or search a building, conveyance or place whether by day or by night.
or himself arrest a person or search a building, conveyance or place.
(3) The officer to whom a warrant under subsec (1) is addressed and the officer who authorized the arrest or search, or the officer who is so authorized under sub-sec (2) shall have all the powers of an officer acting under Section 42.
42. Power of entry, search, seizure and arrest WITHOUT (1) Any empowered officer of the mentioned departments or any other department of the Central Government, or any empowered officer of the police and other mentioned departments or of any other department of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any contraband substance or any evidence relating thereto is kept or concealed in any building, conveyance or enclosed place may between sunrise and sunset, -
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such contraband substance and all materials used in the manufacture thereof and any other article and conveyance liable to be confiscated under the Act and any evidence relating thereto; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any NDPS offence relating to such contraband substance;
Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
43. Power of seizure and arrest IN PUBLIC PLACES -
Any officer of any of the departments mentioned in Section 42 may
(a) seize, in any public place or in transit any contraband substance and along with such substance any conveyance or article liable to confiscation under the Act, and any evidence relating to such contraband substance; and
(b) detain and search any person whom he has reason to believe to have committed an NDPS offence and if such person has any contraband substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation - For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by or accessible to the public.
49. Power to stop and search conveyance - Any officer authorized under Section 42, may, if he has reason to suspect that any conveyance is or is about to be, used for the transport of any contraband substance, stop such conveyance and -
(a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the conveyance; (c) if it becomes necessary to stop the conveyance, he may use all lawful means for stopping it and where such means fail, the conveyance may be fired upon.
51. Provisions of the Code of Criminal Procesure, 1973 to apply to warrants, arrest, searches the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizure made under this Act.
Reference is also required to be made to Sections 41(a), 100 and 165 Cr.PC regarding arrest, search and seizure.
31. An analysis of the aforesaid provisions, reveals the following Scheme of the Act -
I The Act confers powers of entry, search, seizure and arrest in NDPS cases on four categories of officers, enlarging the class of officers on whom such powers are conferred by the Code of Criminal Procedure in respect of a cognizable offence and also placing a few limitations on some of them:-
(i) A Magistrate of the specified categories may issue a warrant for the arrest of any person who has committed an offence under the NDPS Act or for the search of any building, conveyance or place containing any contraband substance or evidence relating thereto and such warrant may be issued for arrest or search either during day time or night time. Hence the officer who is required to execute such warrant falls in the first category.
(ii) When an empowered Gazetted Officer of the Central/State Government (such empowerment may be made in favour of any gazetted officer of any department of the Central Government or the State Government generally or specially) has personal knowledge or receives information that any person has committed any offence under the NDPS Act or any contraband substance or evidence relating thereto has been kept or concealed in any building, conveyance or place, he may authorize any officer subordinate to him (but superior in rank to constable) to arrest such person or search such building, conveyance or place and such authorization may be given to arrest or to search during day time or night time.
Since such authorization is to be specifically conferred by the empowered gazetted officer in an individual case after the latter has personal knowledge or receives the information which is taken down in writing, there is no point in requiring the subordinate authorized officer again to convey that information to his immediate superior official, who issued the authorization in the first place.
(iii) Such an empowered gazetted officer may himself arrest a person or search a building, conveyance or place. That such officer may exercise such powers either during day time or night time is too obvious to be stated, when he has been expressly empowered to authorize his subordinate officer to exercise such powers during day time or night time.
All the above three categories of the officers specified in Section 41 may thus exercise powers of entry, search, seizure and arrest either during day time or night time.
(iv) Section 42 provides for the fourth category of officers - they are officers of the Central Government or of the State Government who may not be gazetted but who are empowered in this behalf by general or special order of the Central/State Government. Such officers are empowered to exercise the powers of entry, search, seizure and arrest without obtaining any warrant from a Magistrate or any authorization from a Gazetted Officer and, therefore, the exercise of powers by such officers in respect of an NDPS offence is subject to two limitations.-
The first limitation is that it is only during day time i.e. between sunrise and sunset that such officers can exercise their powers, thus restricting the powers of non-gazetted police officers under the Cr.PC.. For exercising such powers during night time the officer has to obtain either a search warrant from a Magistrate or an authorization from a gazetted officer. But here also, the non-gazetted empowered officer may exercise the powers even during night time if he has reason to believe that the search warrant/ authorization cannot be obtained without possibility of concealment of evidence or escapement of the offender. If he has such reason to believe and he records grounds for such belief, he may exercise the powers at any time even during night time.
The second limitation is that if a non-gazetted officer has taken down the information in writing under sub-section (1) or he has recorded the reasons for his belief under the proviso for exercising powers during night time, he shall forthwith send a copy thereof to his immediate official superior. The object is only to inform the immediate official superior so that the non-gazetted Officer may not resort to any manipulation and the superior officer may be able to guide and supervise the investigation.
The entire object of Section 42 is to confer powers upon the Central/State Government to empower even non-gazetted officers (above the rank of constable/sepoy/peon) of various departments to receive information and to act upon such information in respect of any NDPS offence without obtaining a warrant from a Magistrate or an authorization from an empowered gazetted officer, but subject to two limitations. The provisions of Section 42 are not enacted to curtail or fetter the powers already conferred by Section 41 upon the officers in whose favour a Magistrate has issued a warrant, or the powers conferred on the Gazetted Officers of the Central Government/ State Government who are specially empowered by any general or special order of the Central/State Government to effect an arrest and to search contraband articles and the evidence relating thereto, whether during day time or night time. The powers under the provisions of Section 41 may thus be exercised where the place to be searched is a building, conveyance or a place, (whether enclosed or not) and whether during day time or during night time.
II Section 49 is titled "Power to stop and search conveyance". Section 43 is titled "Power of search and seizure in public places". Sections 43 and 49 provide that any officer of any of the departments mentioned in Section 42 (i.e. the departments of Central Excise, Narcotics, Customs and Revenue Intelligence of the Central Government and the departments of Revenue, Drugs Control, Excise & Police of the State Government) may stop a vehicle if necessary, even by firing upon the vehicle and rummage/search the vehicle and examine/search any goods in the vehicle, if he has reason to suspect that any vehicle is, or is about to be, used for transport of any contraband substance. Upon such search, if he has reason to believe that an offence under the NDPS Act has been committed, such an officer may seize in public place or in transit any such contraband substance or any evidence relating to commission of such offence. Similarly, he may detain and search any person whom he has reason to believe to have committed an offence under the NDPS Act and if any such person is found to have in his possession any contraband substance and such possession appears to the officer to be unlawful, the officer may arrest him and any other person in his company.
III The following need to be emphasized :-
(i) Headings of Sections 49 and 43 are "power to stop and search conveyance" and "power of seizure and arrest in public places". Both the sections, therefore, contemplate a vehicle in motion (in transit) or about to be set in motion anywhere or a stationery vehicle in a public place. In so far as an individual is concerned, he may be detained, searched and arrested in a public place. That is why neither of the sections refers to the power of "entry", unlike Section 42.
(ii) It is true that clause (b) of Section 43 conferring power of detention and arrest of a person does not use the words "in any public place or in transit". But Section 43 is titled "Power of seizure and arrest in a public place" as already indicated above. As per the settled legal position, in case of doubt, heading of the Section can be referred to for interpreting the substantive provision (Bhinka vs. Charan Singh, AIR 1959 SC 960, 966).
(iii) Explanation of the expression "public place" in Section 43 is an inclusive one so as to cover any public conveyance like a train or a bus or a taxi or an autorickshaw and it also includes any hotel, shop or other place intended to be used by or accessible to the public. The expression "any public place or in transit" in Section 43 appears to be in contra-distinction to the expression "private place" comprehended by the words "building, conveyance or place/enclosed place" in Section 42(1) and in Section 41 of the Act. The object behind making such a distinction is obvious. The provisions of Section 42 are applicable in the case in which a building, conveyance or place is to be entered into and searched. If such places are not to be entered into and searched, the provisions of Section 42 will not be applicable. The provision of recording in writing the information received by such Officer and forthwith sending the copy of such writing to the immediate official superior is advisedly made to prevent an empowered Officer of a lower rank from misusing the power of entry into the building, conveyance or place, which are considered to be private places for an individual, who has right to exclude the outsider and the privacy of the occupants of such places may not be disturbed unless a responsible public official like a Magistrate or a gazetted empowered officer has found some justification for allowing that privacy to be invaded.
Similarly in Aslambhai I. Memon vs. State, 1990 (1) GLR 150, another Division Bench of this Court explained the distinction between Sections 41 and 42 of the Act on the one hand and Section 43 of the Act on the other hand in the following terms :-
"3.12 Thus, Sec.42 speaks about search and seizure from any building, conveyance or enclosed place, while Sec.43 speaks about the search and seizure from public place or in transit. It is important to note that the wordings of Secs. 41 and 42 with regard to information taken in writing have been deliberately omitted by the Legislature in Sec.43 and in our view, that has been done so advisedly inasmuch as the Police Officer empowered under Sec.42 may get information with regard to the person in any public place or in transit at the last moment and if he had to undergo the procedure of taking that information in writing and recording the reasons for his belief, possibly such information may not be useful. When that is so, whenever any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place, it is not intended by the Legislature to take down the said information in writing."
The powers of entry, search, seizure and arrest in private places during day time and night time are conferred on empowered gazetted officers and conferment of such powers on empowered non-gazetted officers is subject to two limitations or safeguards as discussed above. The Legislature has thus reposed more trust in gazetted officers than in subordinate officers. This is quite in keeping with the conferment of powers by various enactments proceeding on the basis that the higher the office/officer, the greater is the legislative confidence that the power will be exercised more responsibly.
(iv) When Section 42 refers to "conveyance", it is "building, conveyance or enclosed place". The rule of "ejusdem generis" will apply. A word is known by the company it keeps. A conveyance or a vehicle may as well be parked in a private place or may even be inside a locked garage. In such an eventuality, the officers would not be in a position to exercise the powers under Section 49 or 43. The powers under Section 49 may be used for stopping and searching a vehicle if an empowered officer has reason to suspect that any conveyance is, or is about to be, used for the transport of any contraband substance. If a vehicle is therefore about to leave a private place, the officer can certainly exercise his powers under Section 49 because the vehicle is about to be used for the transport of contraband substance but once the vehicle is out of a private place and is in a public place, the officer is certainly empowered to exercise the powers of stopping the vehicle and searching the vehicle under Section 49 even on mere suspicion that the vehicle is used for the transport of any contraband substance. Upon search of the vehicle and search of any goods in the vehicle, if the officer finds any material which gives him reason to believe that an offence has been committed under the NDPS Act the officer would exercise the powers of seizure under Section 43(a) of the Act. There cannot be any question of exercising any powers under Section 42 in such an eventuality.
(v) While the powers of stopping and searching a conveyance under Section 49 may be exercised even when the officer merely has a reason to suspect, the powers of entry and search in any building, conveyance or enclosed place under Section 42(1) can be exercised upon reason to believe based upon personal knowledge or information given by any person and taken down in writing. Looking to the aforesaid object as explained earlier and in Aslambhai I Memon (Supra), it is clear that the fetters on the powers to be exercised for searching a conveyance in transit or a person or a conveyance in a public place would naturally be less stringent than the fetters on the exercise of powers of entry and search in a private place.
(vi) A non-gazetted officer empowered under Section 42(1) will be subject to the restrictions imposed by Section 42, while exercising the powers under Section 42, but will not be subject to those restrictions while exercising powers under Section 43. For instance, if a non-gazetted Police Officer of the State Government is to detain and search any person occupying a hotel room or dining in a restaurant, he will have all the powers to detain and search such a person and if such person has any contraband substance in possession, which appears to the officer to be unlawful, such person may be arrested without the non-gazetted police officer being required to obtain any warrant, authorization or without complying with any conditions stipulated in Section 42 i.e. taking down the information in writing or submitting the information to his immediate superior and such powers of detention, search and arrest may be effected either during day time or night time.
32. The upshot of the above discussion is that the provisions of sub-section (2) of Section 42 are not applicable when the powers of entry, search, seizure and arrest are exercised by an empowered gazetted officer or his authorized subordinate officer under sub-section (2) of Section 41 - whether during day time or night time. So also the requirements of Section 42 with regard to recording information and reporting the same to a superior officer or recording the reasons for exercising the powers during night time are not applicable when the powers are exercised in a public place under Sections 49 and 43 of the Act.
33. It may appear that the aforesaid analysis of the provisions of the NDPS Act may prima-facie not accord with the subsilentio principle canvassed as flowing from the following observations of the three Judge Bench of the Hon'ble Supreme Court in para 15 in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, 2000(2) SCC 513 :-
"15. In this case PW 2 admitted that he proceeded to the spot only on getting the information that somebody was trying to transport a narcotic substance. When he was asked in cross-examination whether he had taken down the information in writing he had answered in the negative. Nor did he even apprise his superior officer of any such information either then or later, much less sending a copy of the information to the superior officer. However, learned counsel for the respondent State of Gujarat contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information. We are unable to appreciate the argument because, in this case, PW 2 admitted that he proceeded on getting prior information from a Constable and the information was precisely one falling within the purview of Section 42(1) of the Act. Hence PW 2 cannot wriggle out of the conditions stipulated in the said sub-section. We, therefore, unhesitatingly hold that there was non-compliance with Section 42 of the Act."
Apart from the settled legal position that the observations in a judgment are not to be read like the words in a statute, subsequently another three Judge Bench of the Hon'ble Supreme Court has taken the view in Narayanaswamy Ravishanker vs. Assistant Director, Directorate of Revenue Intelligence, 2002 (8) SCC 7 with which view our analysis conforms. As per the settled legal position, when two precedents of the equal strength Benches of the superior Court are cited (the former decision not having been cited before the later bench), it is open to this Court to follow either of them. For the reasons which are already indicated hereinabove, we are inclined to follow the decision of the Apex Court in Narayanaswamy Ravishanker vs. Assistant Director, Directorate of Revenue Intelligence, 2002 (8) SCC 7. In Karnail Singh, (2000) 7 SCC 632, the Court held that since opium was seized from a truck on a public road, the procedure prescribed under Sections 49 and 43 was attracted and was followed. In Beckodan Abdul Rehman vs. State of Kerala, AIR 2002 SC 1810, the two Judge Bench was concerned with seizure of 11 grms. of opium and the Court proceeded on the footing that Section 42 was applicable.
Three Division Benches of this Court have already taken the view which we have taken and we see no reason to take a different view or to refer the matter to a larger Bench.
We find that apart from the three Division Bench judgments of this Court, a Division Bench of the Punjab & Haryana High Court has also taken the same view in Dharminder Kumar vs. State of Punjab 2003 (1) Crimes 19 and we respectfully agree with the same. The decision of a learned Single Judge of the Bombay High Court in Abdul Rehman Fakir Mohammed Durani vs. State of Maharashtra, 2001 Cr LJ 4844 has been brought to our notice but with great respect, we are unable to accept the view expressed therein for the reasons which we have already indicated hereinabove. We may further note that the apprehension expressed in Abdul Rehman F.M. Durani (supra) that an individual found in open private place may go scot-free as officer empowered u/s. 42(1) will have no power to detain, search and arrest him, overlooks the provisions of Section 51 of the NDPS Act which save the powers of the police officers under the Code of Criminal Procedure.
33.A After this judgment was dictated and pronounced in the open Court but before it was signed, we have come across a very recent decision dated 9.9.2003 of the Apex Court in M Prabhulal vs. Assistant Director, DRI, in paras 8 to 15 of which the Apex Court has analyzed the provisions of Sections 41, 42 and 43 of the NDPS Act and has held as under:-
"It is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the Section. Under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub-section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of sub-section (2) of Section 42 that it applies to officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of Section 41, when such Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed on him which can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41, and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab vs. Balbir Singh, 1994 (3) SCC 299, Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, 2000 (2) SCC 513 and Beckodan Abdul Rahiman vs. State of Kerala, 2002 (4) SCC 229, on the aspects under consideration are neither relevant nor applicable."
Even though the above recent decision in M Prabhulal (supra) is rendered by a two Judge Bench, the said decision has already considered the three Judge Bench Abdul Rasid Ibrahim Mansuri (supra) and, therefore, the same has to be read in light of the latest decision in M Prabhulal (supra).
34. In view of the above legal position, it is clear that since the Fiat car in question was stopped on the Vapi Kachigam Road by two gazetted police officers and searched in exercise of powers under Section 49 of the Act and 15000 mandrax tablets were seized when they were in transit in a public place, the seizure was made by the two gazetted police officers in exercise of powers under clause (a) of Section 43 of the Act. Similarly, as the two gazetted police officers found accused No. 1 in possession of 15,000 tablets which were prima-facie found to be a psychotrophic substance, the arrest of accused Nos. 1 and 2 was made in exercise of the powers under clause (b) of Section 43. Accused No. 2 was also arrested since he was also treated as in possession of the tablets or in any case accused No. 2 was found to be in company of accused No. 1 who was driving the Fiat car containing the mandrax tablets. Hence, the power of stopping the car and then the powers of search, seizure and arrest were exercised under Sections 49 and 43 of the NDPS Act and, therefore, the provisions of Section 42(2) were not applicable. As already discussed, the powers under Section 41(2) as well as under Sections 49 and 43 of the Act may be exercised by day time or by night time. Hence, the argument of the learned counsel for the accused that the search and seizure could not have been effected before sunrise on 27.5.1996 cannot be accepted.
35. In view of the aforesaid findings that the provisions of Section 42 are not applicable in the instant case, it is not necessary to express any opinion on the question whether Mr Chudasama could be stated to have proved that he had sent a copy of the information to his immediate official superior.
CONTENTION NO. 2 - Reg. Section 5036. Coming to second legal contention about breach of Section 50 of the Act, some attempt is made to bring out contradictions between the evidence of Dy SP Mr Chudasama on the one hand and the evidence of Police Inspector Mr BB Patel and PSI Mr Kathiria on the question whether option was offered to the accused to be examined before an Executive Magistrate or before a Gazetted Officer. It is not necessary to go into the said controversy because apart from the fact that a Full Bench of this Court has taken the view in Bhupatji Shakaraj vs. State of Gujarat, Criminal Appeal No. 548 of 1997 decided on 24.4.2003 that it is open to the Officers carrying out search under Section 50 read with Sections 41 to 43 to offer search to be carried out either before an Executive Magistrate or before a Gazetted Officer and that it is not necessary that search should be offered to be made in presence of both the Executive Magistrate and the Gazetted Officer; in the facts of the instant case, the mandrax tablets were found from the bags lying in the rear seat of the car and no material was recovered or seized from the person of accused No. 1 or the person of accused No. 2.
As per the language of Section 50, the same is applicable when any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, 42 or 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the specified departments or to the nearest Magistrate.
In Raghubhai Gandabhai Bharwad vs. State of Gujarat, Criminal Appeal No. 12 of 2002 decided on 5/6.2.2002 another Division Bench of this Court has examined this question at length and after review of several decisions of the Apex Court and also the decisions of this Court, it has been held in unmistakable terms that the provisions of Section 50 are applicable only when the "person" of the accused is to be searched and not his belongings like a bag belonging to the accused. In Sarjudas & Anr. vs. State of Gujarat, 1999 (8) SCC 508, charas was found kept in a bag which was hanging on the scooter on which the accused were riding and the Apex Court negatived the contention based on breach of Section 50 of the Act and held that charas was not found on the person of the appellants and, therefore, the question of application of Section 50 of the NDPS Act did not arise. Similarly, in Birakishor Kar vs. State of Orissa, 2000 (9) SCC 541, the contraband article was found from a plastic bag in a train compartment and the appellant was found lying on that plastic bag. In the said case also, the Court held that it was not the "person" of the appellant which was searched but the bag on which he was sitting and, therefore, Section 50 would not come into play. In Kanhaiyalal vs. State of MP, 2000 (10) SCC 380 also 1 kg. opium was found from a bag which was carried by the appellant and, therefore, the Court held that it could not be said to be a case where on search of the "person" of the accused, the contraband article was found.
In the instant case also, 15,000 mandrax tablets were found from two bags lying in the rear seat of the Fiat car, which was being driven by accused No. 1 and wherein accused No. 2 was a passenger. Hence the question of applying Section 50 of the Act does not arise.
CONTENTION NO. 3 - Reg. Section 4737. It was next contended that there was violation of provisions of Section 47 of the NDPS Act and of Section 102(3) Cr.PC in as much as the report of the seizure was not forthwith sent to the Magistrate having jurisdiction.
On this issue, the trial Court has given a finding that although the police had not sent a separate report of the seizure, while submitting the report dated 28.5.1996 to the JMFC, Pardi producing accused Nos.1 and 2 and seeking remand, the Police Inspector had given information about seizure of the muddamal in question. In this connection, in Valsala vs. State of Kerala, AIR 1994 SC 117 and in Shivabhai Gajmalbhai vs. State of Gujarat, 1996(2) GLR 64, it has been held that the provisions of Section 47 of the NDPS ACt and of sub-section (3) of Section 102 Cr.PC, are directory and not mandatory and, therefore, substantial compliance with the said provisions is sufficient. In the facts of the present case, since the report dated 28.5.1996 of the Police Inspector producing accused Nos. 1 and 2 before the learned JMFC and seeking their remand did contain information about seizure of the muddamal articles in question, we find that there was sufficient compliance with the provisions of Section 47 of the NDPS Act and of sub-section (3) of Section 102 Cr.PC.
CONTENTION NO. 4 - Reg. Section 5538. The learned counsel for accused No. 1 next contended that there was breach of the mandatory provisions of Section 55 of the Act as the muddamal articles other than samples collected for the FSL taken to the Vapi Town Police Station were not sealed and that the seals found on the samples received by the FSL were not the same as the seals put on the samples when the panchnama was prepared.
This contention was not raised before the trial Court nor was it put to the police witnesses or to the FSL expert in their cross-examination. The learned counsel for the appellant accused, however, sought to raise the said contention while reading the evidence before this Court. In this connection, it is pointed out that according to the panchnama Ex.42 (Page 415-427) the seals were of "DG & IG of Police GS, Ahmedabad" whereas in the evidence of PW 20 Surjitbhai Maganbhai, PSO, it is stated that on the samples the seal of "Ahmedabad ATS" was put.
The learned APP has pointed out that all the police officers i.e. Dy. SP, PI and PSI have stated and in the panchnama as well as in the FSL report it is stated, that the seal of "DG & IG of Police, GS, Ahmedabad" was placed. The officers who had carried out the raid were under the administrative control of the Director General and Inspector General of Police, Gujarat State, Ahmedabad and were working in the ATS branch of the police department with headquarters at Ahmedabad whereas PW 20 Surjitbhai was a Head Constables at the Vapi Town Police Station. Hence, all that he referred to was the seal of the Ahmedabad ATS Office and he did not describe the exact words in the seal which were "DG & IG of Police, Gujarat State, Ahmedabad".
We find considerable substance in the said submission of the learned APP. It is important to note that the FSL report Exh.105 also states that the seals "DG & IG of Police, GS, Ahmedabad" were found to be intact on all the samples. In view of this material on record, there is no substance in the contention of the learned counsel for accused No. 1 that the muddamal articles sent to the FSL were not the same as the articles which were seized.
39. The next contention urged on behalf of accused No. 1 is that the muddamal articles were seized in the morning of 27.5.1996 but the samples collected therefrom were sent for analysis one month later i.e. they were received by the FSL on 28.6.1996 as mentioned in the FSL letter dated 20.8.1996 (Exh.105 - Pg.543). It is, therefore, submitted that in view of this delay, the accused are entitled to get the benefit of doubt.
This contention also was not raised before the trial Court and for good reasons. In his evidence the Police Inspector Mr BB Patel, PW 28 (Exh.192-para 20) stated that the 15 samples of the tablets which were seized from the rear seat of the Fiat car were sent to the FSL, Ahmedabad alongwith a forwarding letter through Police Constable Mukesh Natverlal and similarly in para 26 of his deposition the Police Inspector stated that the 11 samples collected from the wadi (farm) were sent to the FSL, Ahmedabad through Police Constable Amirkhan Rasulkhan.
FSL Expert, Maheshchandra Chhabildas Champaneria, PW 12 (Exh.102) who is the Scientific Officer at the FSL, Ahmedabad has clearly stated in his evidence that 15 parcels were received from the Vapi Police Station from PSI, Anti Terrorist Squad regarding Vapi Police Station CR No. 92 of 1996 in sealed condition on 28.5.1996 and the inward number for the same is also given by the witness in his deposition. Similarly, another 11 parcels were received by the FSL, Ahmedabad in connection with the same offence on 30.5.1996 in sealed condition, the inward number for the said parcels is also given by the witness in his evidence. It is thus clear that the samples which were collected from out of the mandrax tablets seized from the Fiat car in the morning of 27.5.1996 were received by the FSL, Ahmedabad on 28.5.1996 i.e. on the very next day and the samples collected from the wadi in question on 28th night were received by the FSL, Ahmedabad on 30.5.1996. In the letter Exh. 105 dated 20.8.1996 (page 543) stated that the 15 parcels sent by PI, Anti Terrorist Squad, Ahmedabad alongwith letter dated 27.5.1996 were received on 28.6.1996, it was only a typing mistake wherein 28.5.1996 was by mistake shown as 28.6.1996. When the Scientific Officer of the FSL has given the specific dates with inward numbers about receipt of the samples on 28.5.1996 and 30.5.1996 respectively, there is no reason to doubt that the FSL Officer had not given the correct dates in his examination-in-chief. It is true that both the sets of samples were sent on 31.7.1996 to the concerned officer, who analyzed the same and gave evidence before the Court. However, the witness has denied that there would be any material change in the samples by such passage of time. In the facts of the instant case, nothing is brought on record to show that the passage of two months between the date of receipt of the samples and the date of chemical analysis would make any difference to the result of the chemical analysis of the substances in question.
40. The learned counsel for accused Nos. 1 and 2 further submitted that the seal of Vapi Police Station was not placed on the samples which were sent to the FSL and the other articles which remained with the police station and, therefore, there was violation of Section 55 of the Act.
Apart from the settled legal position that the provisions of Section 55 are directory and not mandatory, the seals of "DG & IG of Police, GS, Ahmedabad" were placed on the samples sent to the FSL. Therefore, absence of any seal of the Vapi Police Station did not deprive the samples of their authenticity. As regards the absence of seals on the articles which remained at the Vapi Police Station other than the samples sent to the FSL, the learned trial Judge has held that the provisions of Section 55 are directory and not mandatory and has relied on the decision in Valsala vs. State of Kerala, AIR 1994 SC 117. The learned Judge has further held that form the evidence on record it is satisfactorily established beyond reasonable doubt that the muddamal articles produced before the Court were the same as seized from the Fiat car No. MMF 1066 in the morning of 27.5.1996 and those seized from the wadi of Deviben and one seized from the shop of PW 4. In view of the evidence on record and the said finding and absence of any challenge to drawing of samples, we are of the view that seizure of the muddamal articles was not vitiated nor has the defence been able to make any dent in the authenticity of the muddamal articles which were produced before the Court.
CONTENTION NO. 5 - Reg. Section 52A (2) to (4)
41. Mr BS Patel, learned counsel for accused No. 1 has also submitted that there was violation of the provisions of sub-sections (2) to (4) of Section 52A under which a police officer was required to make an inventory of the psychotropic substances and to make an application to the Magistrate for certifying the correctness of the inventory so prepared or to take in the presence of the Magistrate, photographs of said substances and certifying such photographs as true or to allow to draw representative samples of such substances in the presence of a Magistrate and to certify the correctness of list of samples so drawn and that only such inventory, photographs and list of samples drawn as aforesaid and certified by the Magistrate can be treated as primary evidence in respect of the offence under the NDPS Act.
Before dealing with the above submission, we would like to point out that such a contention was not raised before the trial Court nor was any such question put to the police officers. However, it is contended that since this is a question of law, it could be raised before the appellate Court without raising it before the trial Court. The submission made on behalf of accused No. 1 is misconceived because sub-section (2) of Section 52A is not to be read in isolation nor can it stand on its own. Sub-section (2) can come into operation only when sub-section (1) thereof is applicable, which provides that the Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, considerations, constraints of proper storage space or any other relevant considerations, specify in the Official Gazette such narcotic drugs or substances which shall soon after their seizure, be disposed of by such officer and in such manner as the Government may determine after following the procedure specified in sub-section (2). Hence it is only when any such narcotic drug or psychotropic substance is notified in the Official Gazette under sub-section (1) of Section 52A that question of applying or invoking sub-sections (2) to (4) of Section 52A can arise. The learned counsel for accused No. 1 has not invited the Court's attention to any such notification. It is in order to preserve the evidence of narcotic drugs / psychotropic substances which are to be disposed of soon after their seizure that the question of preserving the evidence of such drugs/ substances would arise. In the instant case, the psychotropic substances seized from the accused were very much produced before the trial Court after more than one year from the date of seizure. Hence otherwise also there was no question of applying or invoking sub-sections (2) to (4) of Section 52A of the Act. The submission is, therefore, rejected.
42. In view of the above discussion, we find that the prosecution has established beyond reasonable doubt that accused No. 1 is guilty of the offence of possessing, transporting and manufacturing a psychotropic substance punishable under Section 22 of the NDPS Act, 1985. Accused No. 3 is guilty of the offence of abetting manufacture of a psychotropic substance punishable under Section 22 read with 29(1) of the Act. Accused Nos. 2, 4 and 5 are acquitted of the offences with which they were charged in NDPS Case No. 17 of 1996. Accused No. 6 is acquitted of the offences with which he was charged in NDPS Case No. 37 of 1997.
ENHANCEMENT APPEAL
43. Coming to the question of sentence, the trial Court had imposed sentence of ten years rigorous imprisonment with fine of Rs.1 lac, in default two years rigorous imprisonment on accused No. 1.
44. Mr KC Shah, learned APP has submitted that in view of the large quantity of mandrax tablets (15,000 tablets) seized from the Fiat car of the ownership of, and being driven by, accused No. 1 and also 1,14,000 mandrax tablets recovered from the place of manufacture and accused No. 1 having been found to be a party to the said manufacturing activity, this is a fit case for enhancement of the sentence and the fine and that the maximum sentence and fine be imposed.
45. On the other hand, Mr BS Patel, learned counsel for accused No. 1 has submitted that accused No. 1 is aged about 48 years and he is suffering from various serious ailments including the ailment pertaining to his brain, cervical spondylitis, heart ailments, asthma, diabetes and hypertension and, therefore, the sentence of ten years awarded by the trial Court is not required to be enhanced; the convicts under the NDPS Act are not entitled to any remission or any furlough or parole leave.
46. The learned counsel for accused No. 1 has further submitted that although the NDPS (Amendment) Act of 2001 came into force with effect from 2nd October, 2001 and the present case was decided by the trial Court before the amendment, the legislative indication about the distinction between small quantity and the commercial quantity and the varying punishments needs to be considered while hearing the enhancement appeal.
Methaqualone at item No. 161 in the Table to the Notification dated 19.10.2001 is considered to be commercial quantity if it is 500 grms. or more; 20 grms. or less is considered to be small quantity.
Mr Patel has submitted that the FSL expert has not indicated the exact weight of methaqualone in each tablet and, therefore, the Court should presume that the quantity of methaqualone was less than the small quantity or in any case less than commercial quantity and, therefore, there should not be any enhancement.
47. Although the argument with reference to the amended provisions is not legally tenable, still we have considered the quantity of the psychotropic substance as one of the relevant factors for deciding the quantum of sentence. We are afraid the argument of Mr Patel is thoroughly misconceived in the facts of the present case. Apart from 15,000 mandrax tablets which were seized from the Fiat car being driven by accused No. 1 and which car is also found to have been purchased by him, accused No. 1 is also found to be a party to the manufacturing activity and 1,14,000 mandrax tablets have been seized from the place of manufacture. Thus, the total number of tablets comes to 1,29,000. As per the FSL report, each of the sample tablets was weighing between 3.8 to 4.0 gms.. The total weight of tablets would, therefore, work out between 490 to 500 kilograms which was valued at more than Rs.1 Crore and 29 lakhs. It is true that the FSL expert has found presence of methaqualone in each sample tablet but has not given the exact quantity of methaqualone found in each tablet. If methaqualone was present in each tablet to the extent of one-tenth of the tablet, it would be 50 kgs. of methaqualone, which was hundred times more than the commercial quantity. Even if that proportion was only one hundredth of the tablet, it would be 5 kgs. of methaqualone and, therefore, ten times more than the commercial quantity.
In this view of the matter, there is no manner of doubt that the quantity seized from and at the instance of accused No. 1 was substantially larger than the commercial quantity as per the notification dated 19.10.2001.
We may not be treated to have expressed any opinion that the presence of methaqualone in mandrax tablets was only one hundredth of the weight of the tablet. We are making this utterly conservative estimate only to test the argument of Mr BS Patel for the appellant-accused and not to lay down any such standard.
48. Having heard the learned counsel for the parties on the question of sentence, we find considerable substance in the submission of learned APP that looking to the large quantity of mandrax tablets which accused No. 1 was not merely transporting but was also manufacturing, this is a fit case for awarding maximum sentence and fine. However, it is brought to our notice that accused No. 1 is aged about 54 years at present and our attention is also drawn to the report dated 27.6.2002 which was submitted by the Medical Officer of the Baroda Central Prison when accused No. 1 had submitted his bail application being Criminal Misc. Application No. 3155 of 2003 in the present appeal wherein it is stated that accused No. 1 is a known case of systemic hypertension, diabetes, cervical spondylitis, left cerebra muscular stroke, ischemic heart disease and bronchial asthma which some times become acute, dyspnoeic which requires broncho dilator.
19th September, 2003
49. In view of the above medical history of accused No. 1, yesterday afternoon we directed that accused No. 1 be produced personally. Pursuant to the said direction, the Jail Authority, Baroda Central Prison has brought accused No. 1-Nazir Ahmed Ismailji Chikhliwala before the Court today. Accused No. 1 had suffered a paralytic stroke after conviction, but is found to be in a position to walk on his own with the support of a stick. He has addressed the Court and narrated his physical ailments which are already referred to hereinabove. The said accused has also stated that his family consists of his wife and two sons who are not employed and he has submitted that the sentence already imposed upon him by the trial Court may not be enhanced.
The accused himself has also stated that he is provided all the medical treatment as doctors from SSG Hospital, Baroda visit the Baroda Central Prison once a week to provide treatment to the convicts in the prison. We have also perused the medical case papers which bear out the aforesaid statement of accused No. 1. The said accused further states that he is also being provided medicines by the jail authorities as prescribed by the doctors of the SSG Hospital, Baroda.
50. Having heard accused No. 1 himself and his learned counsel and the learned APP, in the facts of the case, including the gravity of the offence and the quantity of the mandrax tablets seized both from the Fiat car belonging to and driven by accused No. 1 and also the quantity seized from the place of manufacture to which accused No. 1 was found to be a party, it appears to us that this is a case for imposing maximum sentence. However, looking to the aforesaid medical condition of the accused, we are of the view that the ends of justice would be met if the accused is sentenced to twelve years rigorous imprisonment with fine of Rs.2 lacs, in default rigorous imprisonment for two years. It is clarified that the sentence already undergone by the accused after his conviction by the trial Court, so also the period during which the accused had remained as undertrial prisoner shall be adjusted/set off against the sentence being imposed by this judgment.
51. Since accused No. 2 is acquitted by this judgment, the enhancement notice against accused No. 2 shall stand discharged.
52. Coming to accused No. 3, since he is convicted for the offence punishable under Sections 22 and 29(1) of the NDPS Act, accused No. 3 is sentenced to undergo rigorous imprisonment of ten years with fine of Rs. one lakh, in default rigorous imprisonment of one year. Since this accused is awarded the minimum sentence for the offence, no notice has been issued to him for hearing him on the question of sentence.
ORDER
53. In view of the above, Criminal Appeal No. 862 of 1999 of Gulabbhai Mitthalbhai Patel is allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Valsad against original accused No. 2 Gulabbhai Mitthalbhai Patel in Special (NDPS) Case No. 17 of 1996 is hereby set aside and the said accused is acquitted of the offences with which he is charged in Special (NDPS) Case No. 17 of 1996. He is ordered to be released forthwith, if not required in any other case.
54. Criminal Appeal No. 1026 of 1999 of accused No. 1-Nazir Ahmed Ismailji Chikhliwala against his conviction in Special (NDPS) Case No. 17 of 1996 for the offence punishable under Section 22 of the NDPS Act is hereby dismissed and accordingly the order of conviction of the said accused is confirmed.
55. Criminal Appeal No. 1166 of 1999 filed by the State for enhancement of sentence does not survive in so far as respondent No. 2, original accused No. 2 Gulabbhai Mitthalbhai Patel is concerned as he is acquitted by this judgment. In so far as the appeal against respondent No. 1 (original accused No. 1) Nazir Ahmed Ismailji Chikhliwala is concerned, the sentence awarded by the trial Court is enhanced and the said accused is sentenced to rigorous imprisonment for twelve years with fine of Rupees two lacs, in default rigorous imprisonment for two years. It is clarified that the sentence already undergone by the said accused after his conviction by the trial Court, so also the period during which the accused was an undertrial prisoner in Special (NDPS) Case No. 17 of 1996 shall be adjusted/set off against the sentence being imposed by this judgment, and the said accused shall serve out the balance sentence.
56. Criminal Appeal No. 1164 of 1999 filed by the State is partly allowed. The appeal against acquittal of respondent No. 1 in the said appeal i.e. original accused No. 3 Shivpratapsing @ Munnabhaiya Narendrasing is hereby allowed and the said accused is convicted of the offences punishable under Sections 22 and 29 of the NDPS Act, 1985 and is sentenced to rigorous imprisonment of ten years with fine of Rupees One lakh, in default rigorous imprisonment of one year. The said accused is ordered to surrender before the jail authority by 17th October, 2003.
However, the order of acquittal of original accused No. 4 Joginder @ Jagubhai Haricharan Jindal and original accused No. 5 Makkhanlal Kharbhar Sharma in NDPS Case No. 17 of 1996 is confirmed. Hence, Criminal Appeal No. 1164 of 1999 is dismissed in so far as respondent Nos.2 and 3 in the appeal (i.e. original accused Nos. 4 Joginder @ Jagubhai Haricharan Jindal and original accused No. 5 Makkhanlal Kharbhar Sharma) are concerned. Their bail bonds shall stand discharged.
57. Criminal Appeal No. 1165 of 1999 filed by the State of Gujarat challenging the order passed by the learned trial Judge acquitting Ballubhai @ Bhagwanbhai Somabhai Tandel accused in Special (NDPS) Case No. 37 of 1997 is hereby dismissed and the said order of acquittal is hereby confirmed. His bail bond shall stand discharged.
58. All the appeals are accordingly disposed of.