Gujarat High Court
Narendrabhai Dhirajlal Kacha vs State Of Gujarat on 8 September, 2023
NEUTRAL CITATION
R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2328 of 2019
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2019
In
R/CRIMINAL APPEAL NO. 2328 of 2019
With
R/CRIMINAL APPEAL NO. 2349 of 2019
With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
1 of 2023
In
R/CRIMINAL APPEAL NO. 2349 of 2019
With
CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 2 of 2022
In
R/CRIMINAL APPEAL NO. 2349 of 2019
With
R/CRIMINAL APPEAL NO. 2298 of 2019
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2019
In
R/CRIMINAL APPEAL NO. 2298 of 2019
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
Page 1 of 141
Downloaded on : Sat Sep 16 16:28:05 IST 2023
NEUTRAL CITATION
R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023
undefined
NARENDRABHAI DHIRAJLAL KACHA
Versus
STATE OF GUJARAT
================================================================
Appearance:
Criminal Appeal No.2328/2019 with Criminal Misc. Application No.1/2019:
MR KARTIK V PANDYA(2435) for the Appellant(s) No. 1
MR MB GOHIL(2702) for the Appellant(s) No. 1
MR TIRTHRAJ PANDYA APP for the Respondent(s) No. 1
Criminal Appeal No.2349/2019 with Criminal Misc. Application No.1/2023
with Criminal Misc. Application No.2/2022:
MR VIKRAM NANKANI SENIOR ADVOCATE WITH MS SWEETA GARGE
WITH MR PRASANNAN NAMBOODIRI with MR HARDIK MODH for the
Appellants
MR TIRTHRAJ PANDYA APP for the Respondent(s) No. 1
Criminal Appeal No.2298/2019 with Criminal Misc. Application No.1/2019:
MR YOGESH LAKHANI SENIOR ADVOCATE with MR PM LAKHANI for
Appellant No.1
MR MAULIK NANAVATI for M/S. NANAVATI AND COMPANY for the
Appellant No.2
MR TIRTHRAJ PANDYA APP for the Respondent(s) No. 1
MS CHETNA SHAH APP for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 08/09/2023
ORAL JUDGMENT
1. The appellants - accused have preferred these appeals under Section 374(2) of the Criminal Procedure Code, 1973 against the judgment and order of conviction dated 07.10.2019 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur at Ahmedabad (hereinafter be referred to as "the Trial Court") in NDPS Case Nos. 4 of 2016, 6 of 2016 and 2 of 2017, whereby present appellants have been convicted for the Page 2 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined offence punishable under Sections 25-A and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter be referred to as "the Act") and directed them to undergo sentence of rigorous imprisonment of ten years for the said offences with fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for six months.
2. Present group of appeals is arising out of the common question of law and facts. In substance, learned advocates appearing for the respective parties have requested to deal with and decide the same conjointly and as such, considering the request and the joint submission, the Court has taken up the appeals for hearing by treating Criminal Appeal No.2328 of 2019 as a lead matter and for the sake of convenience, the facts are taken from the said appeal. So far as the lead matter, i.e. Criminal Appeal No.2328 of 2019, is concerned, same is arising from the following background of facts:-
2.1 On 14.04.2016 the first informant, Mr. V. R. Malhotra, Police Inspector, serving in the A.T.S., Gujarat State, Ahmedabad was orally instructed by Superintendent of Police (Operations), A.T.S. Page 3 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined that Mr. B. C. Solanki, A.C.P., S.O.G., Ahmedabad City has received a secret information to the effect that the accused Narendra Dhirajlal Kacha in conspiracy and in connivance with accused Kishore Bhavsinh Rathod and Jay @ Jay Mukhi had procured an illegal consignment of Ephedrine from factory situated at Solapur, Maharashtra and had kept it in his possession in industrial shed of Jayesh Patel situated near the connecting road to Village Vahelal, Taluka Daskroi, District Ahmedabad. It was further alleged that all these accused are preparing to export the said Ephedrine to foreign country and the informant was further instructed to arrange a raid in pursuance of secret information. Accordingly, a team of ATS Officers was formed which included the first informant Mr. V. R. Malhotra, Mr. B. C. Solanki, A.C.P., S.O.G., ATS; Mr. R. R. Sarvaiya, Police Inspector, Crime Branch and other staff members including a photographer. It was alleged that two independent witnesses for being panch were also arranged by P.S.I. Mr. R. K. Solanki; the panchas were briefed about the raid and once they gave their consent for accompanying them and after taking necessary articles, the entire team proceeded at the place mentioned in the Page 4 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined secret information. Before proceeding, an entry was made in the Station Diary as Entry No. 04/2016, dated 14.04.2016, at 14.50 hours. The team raided the said shed at around 15.45 hours where one person sitting on the chair namely Narendra Dhirajlal Kacha and two persons were working in the shed who stated to be doing labour work under Narendra Kacha and, thereafter, the members of the ATS team entered into the shed and gave their identity to those persons. Thereafter, Mr. V. R. Malhotra, being in-charge of the raiding party told the accused - Narendrabhai Kacha that he was having an information that a big consignment of controlled substance Ephedrine kept under this shed and for that reason a search of the place is required to be made. It was further informed to him by the in-charge that he himself and also the A.C.P. Mr. B. C. Solanki and P.I. Mr. R. R. Sarvaiya are the Gazetted Officers but still if he wishes, he can avail his right of being searched in the presence of any other Gazetted Officer or Magistrate under Section 50 of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter be referred to as "the Act").
That Narendra Kacha agreed that the search may be made by the raiding party itself. Accordingly, after completion of the Page 5 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined necessary procedure under Section 42 and Section 50 of the Act the search of the shed was carried-out and during the search, 55 bags were recovered. One of bag was opened which was containing another poly-bag on which ''Avon Organics Ltd.
Sadashivpet - (AP) was written. This bag was also opened and another black poly-bag was found, it was also opened and another colourless plastic bag was found in which a moist white powder was kept. On being questioned about the same, Narendra Kacha stated that it is "Ephedrine" and that in all other bags the same substance is put. Upon such disclosure, an F.S.L. officer was called upon to conduct test of the substance. Dr. P. A. Ansari, Scientific Officer and Mr. J. M. Mansuri, Chemical Expert from Forensic Science Laboratory came on the spot and conducted test from their Narcotic Kit; such test gave positive result for 'Amphetamine Derivatives'. Thereafter all the bags were opened, out of which 32 bags were containing Yellowish Coloured Substance; 14 bags were containing Off-white coloured substance; 6 bags were containing Pinkish coloured substance and 3 bags were containing black-brownish paste type substance. At that time the sun was setting and hence, further Page 6 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined procedure under Section 42(1) of the Act was done for continuing the raid after the sun-set. Thereafter, all recovered material was weighed with the help of electronic weighing machine and the total weight of the recovered substance came to be 1364.200 kg.
And the samples were taken from all the bags for test and all of them gave positive result for 'Amphetamine Derivatives'. On being asked Narendra Kacha, he could not provide any pass or permit for the recovered substance. Thereafter, two samples of fifty grams each from each of 55 bags were taken and were kept in separate transparent plastic pouches and plastic bags were sealed and on each of them, the paper slips were affixed having wax-seal of "POLICE INSPECTOR, ATS, AHMEDABAD, GS". The value of the recovered substance was of Rs.2,72,84,00,000/-
(Rupees Two Hundred Seventy Two Crores and Eighty Four Lakh). Thereafter, personal search of Narendra Kacha was carried out whereby one Samsung white colour mobile phone was recovered which was also seized in the presence of panchas.
He further produced an Electricity Bill of the shed which was in the name of one Jayeshbhai Maganbhai Patel. Further inspection and search of the shed was done but nothing incriminating was Page 7 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined found except the aforementioned recovered substance.
Thereafter, Narendra Kacha was questioned in the presence of panch witnesses about the recovered substance on which he told that he had received this consignment from factory of Solapur, Maharashtra with the help of his companions namely, Kishore Bhavsinh Rathod and Jay @ Jay Mukhi and the said powder was supposed to be sent back to them after making it colourless white from where it was to be exported to the foreign country.
Thereafter, accused Narendra Dhirajlal Kacha was then arrested at 22.00 hours on 14.04.2016. On the same day a First Information Report came to be filed by Mr. V. R. Malhotra, Police Inspector, ATS, Gujarat State, Ahmedabad against the accused persons namely, Narendra Dhirajlal Kacha, Kishore Bhavsinh Rathod and Jay @ Jaymukhi.
3. After the registration of the F.I.R. against the aforesaid three accused persons the investigation was carried out for the offence by investigating officer Mr. M. H. Thakker. The statements of relevant witnesses including the members of the raiding party were recorded and the statement of the truck Page 8 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined driver of truck no. GJ12AT 8544 namely, Rajendrasinh Parmar, was also recorded in which he disclosed that the recovered 55 bags were loaded by him from M.I.D.C., Chincholi, Solapur, Maharashtra which was loaded by one Bharatbhai who asked him to go and unload the same at Ahmedabad. The driver further stated that he unloaded this consignment at the 'shed' where he met accused Narendra Kacha and later on, he came to know that the accused Narendra Kacha has been arrested and those 55 bags have been seized by the police.
3.1 The statements of other witnesses including one Hemang Dineshbhai were also recorded from which it came to know that all the accused namely, Kishoresinh Rathod, Bharatsinh Kathiya, Narendra Dhirajlal Kacha and Jay @ Jaymukhi were in contact with each other and visited many places together viz. Bangkok, Pataya, Thailand, Kenya, Nairobi, Mumbasa and Dubai.
3.2 The first charge-sheet in the line came to be filed against the accused Narendra Dhirajlal Kacha as Charge-sheet No. 01/2016, dated 07.06.2016 and after committal the same has Page 9 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined been registered as NDPS Case No. 04 of 2016. After the arrest of other accused namely, Puneet Ramesh Shringi, Manoj Tejraj Jain and Jay @ Jaymukhi first supplementary charge-sheet came to filed against them as Charge-sheet No. 02/2016 , on 07/08/2016 and after committal it came to be registered as NDPS Case No. 06 of 2016. Finally, after the arrest of accused Kishoresinh Bhavsinh Rathod and Bharatsinh Ranjitsinh Kathiya second supplementary charge-sheet came to be filed as Charge-sheet No. 02/2017, dated 08.03.2017 and after committal it has been registered as NDPS Case No. 02 of 2017. The accused Vijaygiri @ Vikki Goswami, R/o Kenya; Dr. Abdullah, R/o Tanjaniya and two of their associates though shown to be involved in the instant offence were absconding and hence charge-sheet could not be filed against them and they have been shown as absconding accused in the final charge-sheet.
4. It appears from the record that to prove the case, the prosecution has examined the following witnesses.
Sr.No Name of the Witness Nature of Exhibit Witness Page 10 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 1 Hemang Dineshbhai Sheth Witness 19 2 Rajendrasinh Pravinsinh Parmar Witness 20 3 Ajitsinh Ranchodbhai Kathiya Witness 21 4 Yogi Bhadreshbhai Vyas Witness 26 5 Firozbhai Mommadbhai Mansuri Witness 27 6 Pareshbhai Sureshbhai Patel Witness 29 7 Jayeshbhai Maganbhai Patel Witness 30 8 Dineshbhai Somabhai Prajapati Witness 36 9 Bhagabhai Fulabhai Solanki Witness 37 10 Mukeshbhai Nanubhai Patel Witness 38 11 Baseshwar Shantiling Khandal Witness 40 12 Umeshbhai Prataprao Bhosle Witness 41 13 Prabhakar Gundopant Hajare Witness 42 14 Rakeshbhai Gordhanbhai Gajjar Panch Witness 45 15 Brijen Dilipkumar Mehta Panch Witness 46 16 Kirtibhai Arvindbhai Shah Witness 49 17 Jayesh Bakabhai Panchal Witness 50 18 Dhruvin Ashokbhai Patel Witness 51 19 Ajit Annu Kaamat Witness 52 20 Rajendra Padbhanabhan Kemal Witness 53 21 Harishbhai Chhajuram Dhanka Witness 54 22 Dinesh Harishbhai Dhanka Witness 55 23 Harshadbhai Haribhai Sohiliya Witness 56 24 Mahendrakumar Manilal Witness 58 Morakhiya 25 Babubhai Shankarlal Patel Witness 59 26 Jaysinh Dipaksinh Chauhan Panch Witness 60 27 Nagendra Baliram Aagvane Witness 61 28 Basveshwar Ghyanoba Witness 62 Venapure Page 11 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 29 Sandeep Sureshbhai Modi P.S.I. 63 30 Jayantilal Babulal Dhodhara P.S.O. 65 31 Ranjitsinh Shivubha Rathod Police Constable 69 32 Pradipsinh Dilipsinh Vaghela Police Official 70 33 Amraji Harchandji Police Official 71 34 Mohmmad Sajid Abdul Khalid Police Official 72 Sumra 35 Pravinsinh Ghanshyamsinh Police Constable 73 Parmar (Driver) 36 Nitinkumar Chandulal Thakkar Witness 75 37 Kishor Kameshwar Jha Witness 76 38 Rashminkumar Khemchandbhai P.S.I. 77 Solanki 39 Vijaykumar Rameshbhai Complainant 79 Malhotra 40 Amrutlal Vashrambhai Asstt. Director, 97 Hingrajiya FSL Gandhinagar 41 Manishkumar Hasmukhrai I.O. 111 Thakar 42 Maheshbhai Chaturbhai Nayak I.O. 137
5. In addition to this, the prosecution has also produced the following documentary evidence.
Sr.No Name/Nature of Document Exhibit 1 Recovery Panchnama of Contraband 46 2 Panchnama of recovery of the Truck 60-A 3 True Copy of Extract of Station Diary Entry after 64 arrival of the accused and muddamal at the police station on 15/04/2016 Page 12 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 4 Extract of Inward Police Verdhi calling the F.S.L. 66 officer 5 Extract of Outward Police Verdhi calling the F.S.L. 67 officer 6 Extract of Station Diary entry No. 04/2016 before 68 leaving for raid on 14/04/2016 7 Complaint/F.I.R. 80 8 Extract of secret information recorded in The 81 Secret Information Register of A.T.S. 9 Order of S.P., A.T.S. forwarding secret 82
information and direction for arranging for a raid at the given place reduced in to writing by the in- charge of the raiding team 10 Extract of Station Diary entry regarding leaving 83 for raid 11 Notice u/s. 50 of NDPS Act 84 12 Resolution u/s. 42(1) of NDPS Act regarding 85 continuing the raid after sunset 13 Recording the grounds of belief under the proviso 86 to Section 42 of NDPS Act for conducting search between sunset and sunrise and forwarded to the concerned Judicial Magistrate: Compliance of Section 42(2) of NDPS Act 14 Notice to the accused before starting search 87 15 Seizure Memo of the recovered muddamal and 88 other articles seized from the spot 16 Noting u/s 52(1) of NDPS Act of arresting the 89 accused 17 Letter issued to Scientific Officer, FSL for 90 conducting the on-spot testing 18 Extract of Telephonic Verdhi dated 14/04/2016 91 received at ATS Control Room at 16:15 hrs. Regarding requirement of F.S.L. officer on spot 19 Extract of Verdhi from ATS Control Room to 92 Page 13 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Ahmedabad Rural Control Room regarding requirement of F.S.L. officer on spot 20 True Copy of Extract of Station Diary Entry after 93 arrival of the accused and muddamal at the police station on 15/04/2016 - same as Exh. 64 21 Copy of Log Book Form "B" Entries of the 94 vehicles 22 Letter to Sup. Of Police (Op.) regarding 95 successfully completing the raid in compliance of Section 57 of NDPS Act 23 Receipt of receiving 55 samples of testing issued 97 by F.S.L. 24 Forwarding Letter issued along with the F.S.L. 98 Analysis Report to the Police Inspector, ATS Ahmedabad 25 Detailed F.S.L. Analysis Report 99 26 Fifty-five Panch Slips affixed at plastic boxes 101 containing the samples of the contraband (combined) 27 Fifty-five FSL Yellow Slips taken out from the 102 sample plastic boxes (combined) 28 Panch Slip affixed on the packaging of plastic 103 rope 29 Panch Slip affixed on plastic box containing white 104 colour mobile phone 30 Electricity Bill of the shed in the name of 105 Mr.Jayeshbhai Patel 31 Panch slips affixed on two of the bags of 106 Ephedrine seized during the raid 32 Letter sent by Mr.B. C. Solanki to the Sup. Of 112 Police (Op.) in compliance of Sec. 42(2) of NDPS Act sending a copy of the Secret Information reduced into writing by him 33 The Secret Information reduced into writing by 113 Mr. B. C. Solanki in compliance of Sec. 42(1) of Page 14 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined NDPS Act 34 On-spot Test-Report Conducted by F.S.L. officer 114 coming in FSL Van 35 Letter issued by I.O. to Director, F.S.L. sent along 115 with the samples for testing 36 Dispatch note issued by the I.O. to the F.S.L. 116 containing the description of fifty-five samples and also the questionnaire of required information from the testing 37 Rent Agreement of the shed executed between 117 Bharatsinh Kathiya and Dhruvin Ashokbhai Patel 38 Extract of Register of Annapurna Hotel 118 39 Driving Licence of Truck driver Rajendrasinh 119 40 Request letter seeking issuance of Look-out 120 Circular for accused Kishoresinh Bhavsinh Rathod 41 Transmission Verification Report (TVR) 121 42 Proforma for issuance of Look-out Circular for the 122 accused Kishoresinh Bhavsinh Rathod 43 Receipt of payment issued by M/s. Vijaykumar 123 Vikrambhai & Co. (aanganiya) 44 Letter written to Nodal Officer, Idea Cellular 124 45 Letter written to Nodal Officer, Bharti Airtel 125 46 Letter written to Nodal Officer, Bharti Airtel 126 47 Letter written to Nodal Officer, BSNL Co. 127 48 Letter written to Nodal Officer, Idea Cellular 128 49 Letter written to Nodal Officer, Idea Cellular 129 50 Letter written to Nodal Officer, Reliance Cellular 130 Co.
51 Letter written to Nodal Officer, Vodafone Co. 131 52 Letter written to Nodal Officer, Vodafone Co. 132 53 Letter written to Nodal Officer, Vodafone Co. 133 54 CDR, Certificate & Call details of different Cellular 134 Company Page 15 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined
6. At the end of trial, after recording the statement of the accused under Section 313 of the Criminal Procedure Code, 1973.
7. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused and imposed punishment as referred to hereinabove.
8. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 07.10.2019 passed by the learned 6th Additional Sessions Judge, Ahmedabad (R) at Mirzapur, the appellants have filed respective appeals.
9. Heard Mr.Kartik V. Pandya, learned advocate and Mr.M. B. Gohil, learned advocate for the appellant - accused in Criminal Appeal No.2328 of 2019, Mr.Prasannan Namboodiri, learned advocate with Mr.Hardik Modh, learned advocate for the appellant in Criminal Appeal No.2349 of 2019, Mr.Yogesh Lakhani, learned senior advocate with Mr.P. M. Lakhani, learned Page 16 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined advocate for the appellant no.1 and Mr.Maulik Nanavati, learned advocate for appellant no.2 in Criminal Appeal No.2298 of 2019 and Mr.Tirthraj Pandya, learned Additional Public Prosecutor for the respondent - State of Gujarat in all the matters. Perused the materials placed on record and the decisions cited at the Bar.
10. Mr.Kartik V. Pandya, learned advocate with Mr.M. B. Gohil, learned advocate for the appellant - accused in Criminal Appeal No.2328 of 2019 has submitted that the appellant has not committed any offence as alleged and since his arrested, he is in judicial custody. He has submitted that the prosecution has examined 41 witnesses to prove the case against the accused, however, the independent witnesses including the panch witnesses have not supported the case of the prosecution and turned hostile and the entire case is based on the testimony of the police officers. He has referred to and relied upon the evidence of P.W.1 to P.W.28, P.W.39 and has submitted that no incriminating evidence has been adduced against the appellant.
He has submitted that the prosecution has prepared the panchnama of the truck involved in the transportation of the Page 17 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined controlled substances, however, nothing was found to link the involvement of the truck and transportation of the controlled substances as alleged. He has submitted that the evidence of P.W.39 is silent with regard to the name and identity of the factory premises and the evidence of P.W.11, P.W.12, P.W.13 P.W.27 and 28 does not disclose that from which factory the controlled substance was loaded in the truck for transportation and they deposed that their statements were recorded by Thane police and no any statements were recorded by the police from ATS Gujarat. He has submitted that there is no any iota of evidence adduced by the prosecution regarding loading of controlled substance for transportation and neither there is any evidence with regard to transportation of controlled substance in the truck to Ahmedabad nor is there evidence with regard to up loaded the controlled substance in the factory shed at Ahmedabad. He has submitted that in absence of any evidence against the accused Bharatsinh Kathiya, he may be acquitted from the charges levelled against him and even the prosecution has examined P.W.23 and P.W.37 to prove the case, however, they turned hostile and not supported the case of the Page 18 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined prosecution. With regard to the possession of the controlled substances is concerned, he has also submitted that the prosecution has to prove that the controlled substance was transported to Ahmedabad, however, the prosecution has failed to do so. He has submitted that in absence of the evidence with regard to reaching of the controlled substance at Ahmedabad, the nexus between possession of the substance and delivery of the same is not established. He has submitted that in order to prove the possession of the substance of the accused, the prosecution has examined panch witnesses, however, they have turned hostile and not supported the case of the prosecution.
With regard to compliance of Section 42(2) of the Act, Mr.Pandya, learned advocate has submitted that it is mandatory that if the officer, who receives the information of any substance, has to take the information in writing and within 72 hours to send a copy immediately to his superior official. He has referred to and relied upon the decision of the Hon'ble Apex Court in the case of State of Rajasthan Vs. Jag Raj Singh reported in (2016) 11 SCC 687 and submitted that the Hon'ble Supreme Court has held that non-compliance of Section 42(2) of the Act Page 19 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined vitiates the trial. He has submitted that Section 50 of the Act is mandatory requirement and failure of the same vitiates the trial.
He has referred and relied upon the decision of the Hon'ble Apex Court in the case of State of Rajasthan Vs. Ram Chandra reported in AIR 2005 SC 2221 and submitted that the officer authorized to conduct the search gazetted officer in presence of whom the raid was conducted cannot be the same. He has submitted that in the present case, not only the alleged search of the shed was carried out by the ATS officers but they have also carried out the personal search of the accused and recovered the mobile phone and electricity bill of the shed and, therefore, the compliance of the aforesaid sections of the Act was mandatory.
He has referred and relied upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Parmanand and another reported in (2014) 5 SCC 345 and submitted that the Hon'ble Supreme Court has held that in case the personal search of the accused was made simultaneously with any baggage such as any box or bag being carried by him, even if no contraband is recovered from his person but the same is recovered from such bag or baggage, provisions of Section 50 Page 20 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined shall apply. He has submitted that P.W.39 in his cross examination has admitted that the ATS is a special squad to deal with the terrorist activities. He has submitted that all the independent witnesses have turned hostile and there are lots of infirmities in the case of the prosecution and, therefore, the prosecution has failed to prove the case beyond reasonable doubt. He has submitted that the Dy.S.P. Mr. B. C. Solanki who received secret information and forwarded to the Investigating Officer has not been examined and, therefore, there is no credibility in the secret information and only on this ground the appellant may be acquitted. So far as the criminal conspiracy is concerned, he has submitted that the prosecution has not able to establish a nexus between the accused and in order to prove conspiracy, an agreement between the accused needs to be established. He has submitted that in the present case, except the secret information, which mentions the name of the accused, there is no any other evidence adduced and no specific role has been attributed to the appellant which will prove his involvement in the alleged offence. He has submitted that the prosecution has failed to prove the transportation of the controlled substance Page 21 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined from Sholapur factory to Ahmedabad and the entire evidence of the prosecution and the police witness does not suggest the name and identity of the factory from where the alleged controlled substance is transported. It is submitted that there is no evidence to prove the case that any plan was made by the accused to deal controlled substances and, therefore, the element of previous meeting of mind is found missing in the present case. It is submitted that all the independent witnesses have not supported the case of the prosecution and not a single independent witnesses has pointed out any infirmities in the prosecution version and the superior officer who received the secret information has not been examined. It is submitted that no report has been submitted by the Investigating Officer to his superior officer in terms of Section 57 and, there is non-
compliance of Section 57 of the Act. According to him, the prosecution has failed to prove that the appellant is the owner of the premises from where the muddamal was recovered and even the rent agreement and bank statement are not the part of the evidence. It is submitted that neither the neighbours of the premises of the appellant have been examined nor their Page 22 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined statements have been recorded and hence, the prosecution has failed to prove the ownership of the premises. It is submitted by the learned advocate for the appellant that apart from the statement of the co-accused there is no any material which suggests the involvement of the accused in the crime in question. He has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Surindar kumar Khanna Vs. Intelligence Officer reported in (2018) 8 SCC 271 and submitted that mere confessional statement of the co-accused will not be sufficient for the conviction of the accused. Learned advocate for the appellant has submitted that the provisions of the Act are not complied with which are mandatory in nature and, therefore, this is a fit case to acquit the appellant by giving benefit of doubt. He has submitted that the appeal may be allowed and he may be acquitted from all the charges levelled against him.
10.1 Mr.Pandya, learned advocate for the appellant -
Narendrabhai, while relying upon the decision of the Hon'ble Supreme Court in the case of Sarad Sardul Singh Caveeshar Page 23 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Vs. State of Maharashtra reported in (1964) 2 SCR 378 has submitted that with regard to criminal conspiracy, two things are required i.e. (i) reasonable ground to believe that two or more persons have conspired to commit an offence and (b) thereafter, anything done in that regard and, therefore, the condition precedent is essential to be satisfied for an offence of criminal conspiracy. He has submitted that in the instant case, the prosecution has failed to prove said aspect. He has submitted that the evidence which is to permitted under Section 10 of the Act should be looked into and then applied to the facts of the case to prove criminal conspiracy. Mr.Pandya, learned advocate has referred and relied upon the decision of the Hon'ble Supreme Court in the case of Rajivkumar Vs. State of U.P. reported in (2017) 8 SCC 791 wherein the Hon'ble Supreme Court has held and observed that "the essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to Page 24 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself." Mr.Pandya, learned advocate has, while relying upon the decision of the Hon'ble Supreme Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu reported in AIR 2005 SC 3820 and has submitted that mere suspicion will not be sufficient for criminal conspiracy. Mr.Pandya, learned advocate has, while relying upon the decision of the Hon'ble Supreme Court in the case of Subramaniam Vs. A. Raja reported in (2012) 9 SCC 257 and has submitted that suspicion cannot take place of legal proof and existence of a meeting between the accused persons is not by itself sufficient to infer the existence of criminal conspiracy. Mr.Pandya, learned advocate for the appellant - Narendra has referred and relied upon the decision of the Hon'ble Court in the case of Union of India Vs. Mohanlal and another reported in (2016) 3 SCC Page 25 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 379 wherein the Hon'ble Supreme Court has directed that no sooner the seizure of any Narcotics Drugs and Psychotropic and Controlled Substances and conveyances is affected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the NDPS act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act which shall be allowed by the Magistrate as soon as may be required under Sub-Section (3) of Section 52A and sampling shall be done under the supervision of the Magistrate.
10.2 Mr.Pandya, learned advocate for the appellant has further relied upon the following decisions:-
10.3 Mr.Pandya, learned advocate has relied upon the decision of the Hon'ble Supreme court in the case of State of Gujarat Vs. Ismail U. Haji Patel and another reported in (2003) 12 SCC 291, wherein the Hon'ble Supreme Court has held and observed in paragraphs no.5 and 6 as under:-
"5. We find that there was really no material brought on Page 26 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined record to show as to where the seized articles were kept. The High Court after analysing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the articles seized were in fact sent for chemical examination. In view of the Judgement of this Court in Valsala V/s. State of Kerala the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the Chemical Analyst related to the seized articles.
6. Further, there was nothing brought on record to show as to under whose directions the samples were sent for chemical examination. The High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where the seized articles were to be kept, and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in order. Judgement of the High Court does not warrant any interference in our hands and the appeal is dismissed."
10.4 Mr.Pandya, learned advocate has relied upon the decision in the case of Ouseph Vs. State of Kerala reported in (2004) 10 SCC 647 wherein the Hon'ble Supreme court has held and observed in paragraph no.3 as under:-
"3. Learned amicus curiae appearing for the appellant contended before us that the alleged contraband unsealed were kept with the investigating agency from 14.9.1990 till 28.11.1990 nearly two months without being sealed, therefore, there is every possibility of the same being Page 27 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined tampered with. The courts below have rejected this argument on the ground that such a huge quantity of cannabis, nearly 5 kilograms could not have been purchased by the investigating agency to implicate the appellant forgetting that there is a statutory requirement to seal the seized articles. Under the provisions of Section 55 of the said Act, this requirement may not be mandatory but on facts of this case, keeping the contraband articles in an unsealed condition for such a long time creates doubt in our mind. The period of non-sealing in the circumstances of this case does give rise to a doubt that there might have been a possibility of tampering which cannot be ruled out, more so because sample sent to the Chemical Examiner is a small quantity. The trial court proceeded on the basis that from the statement of the police it showed that it was kept in a safe place, therefore, no prejudice has been caused to the appellant. The prejudice in our opinion is apparent if the seized articles are different from the articles sent to the Chemical Examiner which in this case we cannot say with certainty that the said manipulation has not happened. Therefore, on this ground alone this appeal succeeds and is allowed and the appellant is acquitted. His bail bonds stand discharged."
10.5 Mr.Pandya, learned advocate has relied upon the decision in the case of Naresh Kumar Vs. State of Himachal Pradesh reported in (2017) 15 SCC 684, wherein the Hon'ble Supreme Court has held and observed in paragraphs no.8 to 10 as under:-
"8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can Page 28 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined only be at the risk of a fair trial to the accused. Karamjit Singh vs. State (Delhi Administration), AIR 2003 SC 1311, is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevananthanan vs. State, 2004(5) SCC 230, also does not appear to be a case where independent witnesses were available.
9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417, observing:-
"58......An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt."
10. In the facts of the present case, and the nature of evidence as discussed, the prosecution had failed to establish the foundational facts beyond all reasonable Page 29 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined doubt. The special judge committed no error in acquitting the appellant. The High Court ought not to have interfered with the same. The submissions regarding non-compliance with Section 50 of the Act, or that the complainant could not be the investigating officer are not considered necessary to deal with in the facts of the case."
10.6 Mr.Pandya, learned advocate has also relied upon the decision in the case of Gorakh Nath Prasad Vs. State of Bihar reported in (2018) 2 SCC 305, wherein the Hon'ble Supreme Court has held and observed in paragraphs no.6 and 8 as under:-
"6. The NDPS Act provides for a reverse burden of proof upon the accused, contrary to the normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This shall not dispense with the requirement of the prosecution to having first establish a prima facie case, only whereafter the burden will shift to the accused. The mere registration of a case under the Act will not ipso facto shift the burden on to the accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and the scrutiny stringent. If there is any iota of doubt the benefit shall have to be given to the accused.
7. In the facts of the present case, the independent witnesses with regard to the search and seizure, PW-2 and PW-3, having turned hostile deposing that their signatures were obtained on blank paper at the police station, the mere fact of a FSL Report (Exhibit 8), being available is no confirmation either of the seizure or that what was seized was Ganja, in absence of the production of the seized item in Court as an exhibit. The non-production of the seized material is therefore considered fatal to the prosecution case. The issue whether there has been compliance with Sections 42 and 50 of the NDPS Act loses its relevance in Page 30 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined the facts of the case.
8. The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being Ganja. No explanation has also been furnished by the prosecution for non-production of the Ganja as an exhibit in the trial. The benefit of doubt will, therefore, have to be given to the Appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra and Another v. State of M.P., (2004) 10 SCC 562, and reiterated in Ashok alias Dangra Jaiswal v. State of Madhya Pradesh, (2011) 5 SCC 123, as follows:
"12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.
13. It may be noted here that in Jitendera v. State of M.P., (2004) 10 SCC 562, on similar facts this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra (supra), the Court observed and held as under:-(SCC pp. 564-65, paras 5-6) "5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW
7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were Page 31 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined taken from the drugs seized from the possession of the accused........
6............The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned....."
10.7 Mr.Pandya, learned advocate has further relied upon the decision in the case of Mohinder Singh Vs. State of Punjab reported in (2018) 18 SCC 540, wherein the Hon'ble Supreme Court has held and observed in paragraphs no.10 to 15 as under:-
"10. So far as the contention regarding production of the contraband seized from the accused, in his evidence, Harbhajan Singh (PW-3) stated that on 01.05.1998, he produced the sample parcels and the case property parcels with the seal and the sample seals before the Judicial Magistrate, Ludhiana and the Magistrate has recorded the seals tallied with the specimen impression. Harbhajan Singh (PW-3) further stated that after return of the samples and the parcels from the court, the same were lodged by him to the Malkhana on 01.05.1998 itself. Baldev Singh (PW-5) the then Malkhana in charge though orally stated about the deposit of the contraband in the Malkhana, but Baldev Singh (PW-5) has not produced Register No.19 maintained in the Malkhana to show the relevant entry in Register No.19 as to deposit of the case property in the Malkhana. Oral evidence of Harbhajan Singh (PW-3) and Baldev Singh (PW-5) as to the deposit of the contraband Page 32 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined seized from the accused with Malkhana is not corroborated by the documentary evidence namely the entry in Register No.19.
11. After referring to the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the trial court in para (14) of its judgment has recorded the finding that no order of the Magistrate to prove the production of the contraband before the Magistrate was available on the file. After recording such observation, the trial court held that the oral evidence regarding production of the case property before the Magistrate was not trustworthy and not acceptable. In the absence of the order of the Magistrate showing that the contraband seized from the accused was produced before the Magistrate, the oral evidence adduced that the contraband was produced before the Magistrate cannot form the basis to record the conviction.
12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband.
13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527, this Court reiterated the necessity of production of contraband substances seized from the accused before the trial court to establish that the contraband substances seized from the accused tallied with the samples sent to the FSL. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under:-
"10. On the other hand, on a reading of this Court's judgment in Jitendra v. State of M.P. (2004) 10 SCC 562, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the Page 33 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok v. State of M.P. (2011) 5 SCC 123, this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its nonproduction and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant."
14. The High Court appears to have gone by the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3) that the contraband allegedly seized from the accused was produced before the Magistrate. When the trial court which is in possession of the case records recorded a finding that there is no order of the Magistrate showing the production of the contraband before the court and acquitted the accused on that basis, in our view, the High Court ought not to have interfered with the said order of acquittal.
15. In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the order of acquittal. The mere fact that on reappreciation of evidence the appellate court is inclined to arrive at a conclusion which is at variance with the trial court, the same cannot be the reason for interference with the order of acquittal. After referring to various judgments in Chandrappa and others v. State of Karnataka (2007) 4 SCC 415, this Court summarised the general principles regarding the powers of the appellate court while dealing with an appeal against the order of acquittal and held as under:- "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and Page 34 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." The same principles were reiterated in number of judgments viz. Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297, State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529, Bhaskar Ramappa Madar and others v. State of Karnataka (2009) 11 SCC 690, Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 and other judgments.
10.8 Mr.Pandya, learned advocate has further relied upon the decision of the Hon'ble Supreme court in the case of Gangadhar alias Gangaram Vs. State of Madhya Pradesh reported in (2020) 9 SCC 202, wherein the Hon'ble Supreme Court has held and observed in paragraphs no.6 to 14 as under:-
"6. P.W. 3 and P.W.7, the police constable who had accompanied P.W. 6, deposed that the appellant and Ghasiram had identified the house as belonging to Gokul Page 35 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Dangi which was corroborated by the panchayat records.
7. Ghasiram, as the village chowkidar was the best person in the know of the ownership and possession of the house. He was one of the two witnesses to the sale agreement Exhibit P28. The prosecution for inexplicable reasons has not examined him. P.W. 11 denied his thumb impression on the sale document contending that it was a fabricated document. No forensic report was obtained by the prosecution. The witness acknowledged that the appellant did not visit his own house and lived in his new house for the last 15 years denying any knowledge who the owner was. Yet his statement was accepted as gospel truth without any further investigation.
8. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.
9. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417 observing:
58. ... An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift.
Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being Page 36 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.
10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.
11. It is apparent that the police being in a quandary with regard to the ownership and possession of the house in question due to a flawed, defective and incomplete investigation found it convenient to implicate the appellant also, sanguine that at least one of the two would be convicted. Sri Jain is right in the submission that according to normal human prudence, it stands to reason why the appellant who was residing in his new house for the last 15 years would identify his own erstwhile house as that of the accused Gokul Dangi, be a witness to the breaking of the lock and recovery to implicate himself.
12. The appellant had produced the sale agreement, Exhibit P.28 with promptness the very next day. It was never investigated for its genuineness by the police and neither were the panchayat records verified. The panchayat records are public documents and would have been the best evidence to establish the ownership and possession of the house. Despite the best evidence being available the police considered it sufficient to obtain a certificate Exhibit P37 signed by P.W. 14 who acknowledged her signature but denied knowledge of the contents of the certificate. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that the coaccused had absconded.
13. The appellant was held guilty and convicted in view of his name being recorded as the owner of the house in the voters list 2008, ignoring the fact that sale agreement was subsequent to the same on 12.06.2009. The prosecution cannot be held to have proved that Exhibit P18 was a Page 37 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co accused.
14. In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt."
11. Mr.Vikram Nankani, learned senior advocate for Ms.Sweeta Garge, learned advocate with Mr.Prasannan Nambookiri with Mr. Hardik Modh, learned advocate for the appellants in Criminal Appeal No.2349 of 2019 has referred to and relied upon the evidence of P.W.1 Hemang Dineshbhai Sheth at Exhibit 19, P.W.4 Yogi Bhadreshbhai Vyas at Exhibit 26, P.W.11 Baseshwar S. Khandal at Exhibit 40, P.W.12 Umesh P. Bhsale at Exhibit 41, P.W.13 Prabhakar G. Hazare at Exhibit 42, P.W.19 Ajit A Kamat at Exhibit 52, P.W.20 Rajendra P. Kaimal at Exhibit 53, P.W.24 Mahendrakumar Manilal Morakhiya at Exhibit 58, P.W.25 Babubhai Shankarlal Patel at Exhibit 59, P.W. 27 Nagendra Baliram Agavane at Exhibit 61 and P.W.28 Basveshwar Ghyanoba Venapure at Exhibit 62 and submitted that there is no Page 38 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined evidence to establish the link between what was stored in Avon Lifescience Ltd and substance seized on 14.04.2016 from the possession of the accused and in any even, the appellants have not played any role in the entire case and no act of omission or commission attributed to the appellant in the alleged conspiracy to export Ephedrine from India, much less, as part of the conspiracy allegedly hatched at Hotel Bliss, Mombasa, Kenya with accused Viky and others. With regard to the contention raised by the respondent that the trial court convicted the appellant/s on the basis of the Call Data Records (CDR), it is submitted that CDR data of the appellants does not reflect any calls made to or received from the co-accused. It is submitted that when there is no recording or transcript of conversation exchanged between the accused, then the CDR data cannot be treated as corroborative material in absence of any substantive material against the accused. He has submitted that CDRs can only be used to corroborate any other evidence on record and the same CDR data cannot be the sole basis of conviction, when there is no cogent evidence to support the case of the prosecution. He has submitted that the CDR is neither Page 39 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined substantive evidence nor an independent evidence which can be relied upon to establish the charge of conspiracy. He has submitted that the material was removed from the factory of Avon Life Science Ltd and in that event the provision of Section 38 of the Act dealing with the vicarious liability has not been invoked since the company has not been arrayed as accused. He has submitted that the appellant has been implicated in his individual capacity on mere presumption of nexus between the material allegedly transported from an unidentified place in Solapur and unloaded at the premises occupied by the accused Narendra Kacha. He has submitted that though the case of the prosecution that a conspiracy hatched in the meeting held in Hotel Bliss, that fact is not corroborated when neither P.W. 1 Hemang Dineshbhai Sheth at Exhibit 19 nor P.W. 4 Yogi Bhadreshbhai Vyas at Exhibit 26 had adverted the present appellant or his person at the alleged meeting and, therefore, the finding of the trial Court that the appellant was a party to the criminal conspiracy is failed. He has submitted that the fact with regard to the present appellant received an amount of Rs.51,50,000/- out of Rs.91,90,000/- which came to be Page 40 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined transferred by accused Viky between 18.01.2016 to March 2016 is concerned, this fact is also not corroborated. He has submitted that the trial court has not discussed anything on the aspect of how the alleged conspiracy of an illegal act has been proved and how the appellant is a party to the criminal conspiracy and, therefore, the impugned order is non-speaking and there is no any evidence to establish an agreement of an illegal act by the appellant herein. He has further submitted that the findings recorded by the trial court are general in nature and there is no specific finding with regard to two mobile numbers used by the appellant and two mobile numbers used by the him has also not appeared in the CDR of the other co-accused nor the mobile numbers used by the other co-accused reflects in the CDR of the appellant herein. He has submitted that the impugned judgment and order is only based on assumption and presumption and there is no reference of any material to implicate the appellant and the conviction is based on conclusion drawn by the trial court without any specific reference and without any role, if any, of the appellant. He has submitted that the Assistant Commissioner of Police, Ahmedabad Shri B. C. Solanki, who Page 41 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined received the secret information, has not been examined. While referring Section 42(2) of the Act, he has submitted that this section mandates the officer receiving information to reduce it into writing or recording grounds or his belief under the proviso to sub-section (1) and sending a copy of the same within 72 hours to the superior officer, however there is no compliance of Section 42(2) of the Act. He has submitted that the information as recorded which reproduced in the impugned judgment and order at page no.5 does not disclose the name of the appellant and apart therefrom, there is no acknowledgment from the superior officer as required under Section 42(2) of the Act. It is submitted that the reference "secret information" received by Shri B. C. Solanki, Assistant Police Commissioner was orally communicated with V. R. Malhotra, Police Inspector, which amounts to failure of compliance of Section 42(2) of the Act. He has submitted that the statement recorded under Section 164 of the Criminal Procedure Code before the learned Magistrate was not exhibited and even P.W.2 was declared as hostile and yet the trial court has relied upon the said statement in the impugned judgment and order. He has submitted that the impugned Page 42 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined judgment and order be quashed and set aside and the appeals be allowed.
11.1 Mr.Nankani, learned senior advocate has relied upon the following decisions:-
(1) Yash Jayeshbhai Champaklal Shah Vs. State of Gujarat reported in (2022) SCC Online Guj 271;
(2) Azad @ Gourav Vs. State of GMCT of Delhi and another rendered in Criminal Appeal No.593 of 2022 and Criminal Misc. Application No.1420 of 2022 by the Delhi High Court;
(3) Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539;
12. Mr.Yogesh Lakhani, learned senior advocate with Mr.P. M. Lakhani, learned advocate for the appellant no.1 in Criminal Appeal No.2298 of 2019 has submitted that the prosecution has failed to establish the case against the appellant - accused by framing charge and there is no evidence about the meeting or hatching any criminal conspiracy. He has submitted that no any meeting was held at Kenya or at Hotel Bliss of Mombasa and no Page 43 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined evidence about Hotel Bliss of Mombasa is produced and existence of such hotel is not established. He has submitted that neither any travel documents had been seized/produced nor copies of any tickets were found from the appellant nor investigating agency has even seized the passport of appellant-
accused and, therefore, the fact of travel could not be established. He has also submitted that all such allegations are figments of imagination of prosecution but no such facts are brought on record nor any such facts are proved by the prosecution. He has submitted that no evidence has been produced about so-called transfer of money by Vicky Goswami to Jay Mukhi and the evidence regarding transfer of money through Angadiya is quite inadequate and does not inspire any confidence. He has submitted that moreover, the same is only to the extent that an amount of Rs. 13,40,000/- was transferred by one person named Tahir from Bharuch to Malad, Mumbai in favour of one Jaybhai and who is Tahir is not brought on record and he is neither the accused nor is examined to prove the case and there is no reference of present appellant - accused Kishorsinh Rathod in entire transaction. He has submitted that Page 44 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined though witnesses of Angadiya firm i.e. PW-24 Mahendrakumar at Exhibit 58 and PW-25 Babubhai at Exhibit 59 have been examined, but nothing incriminating was found against present appellant and there is no evidence to show that Kishorsinh Rathod has received any money and the same is recovered from him. He has submitted that neither the arrest panchnama was issued against the accused Kishorsinh Rathod nor drawn any panchnama with regard to recovery of mobile phone from the possession of the accused nor produced any evidence by the prosecution to point out which type of phone and number was using by the accused Kishorsinh and in whose name the said sim card was issued. He has submitted that no material has been placed on record which may even remotely suggest that the accused Kishorsinh was holding the mobile number as alleged in the prosecution case and in absence of nexus of mobile number with the accused person, the CDR is having no significance and, therefore, the CDR is very vague and general in nature.
According to him, the certificate under section 65B of the Evidence Act issued by the concern Mobile Companies in respect of so-called CDR has not been proved in accordance with law, Page 45 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined since no authorized officer of any mobile service provider company has ever been examined before the Trial Court.
According to him, the CDR cannot be exhibited as evidence of Investigating Officer without examination of the concern authorized officer of mobile company who has allegedly issued certificates under section 65B and even there is no any document to show in whose name the sim card was issued. He has submitted that there is no evidence with regard to the transportation of the chemical from Solapur Factory to unknown place on 03.04.2016 and from unknown place to Ahmedabad on 12.04.2016 and even no panchnama of Solapur Factory has been drawn. According to him, so far as the contraband article transported from the godown of Avon Life Science Factory to one unknown place and from unknown place to Ahmedabad is concerned, neither any details nor descriptions came out about the so called unknown place and there is no evidence produced or witnesses examined as to who loaded or unloaded the goods on 03.04.2016 at Solapur and on 12.04.2016 at Solapur as well as on 14.04.2016 at Ahmedabad. He has submitted that it is not evident that where the alleged contraband article from Page 46 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 03.04.2016 to 12.04.2016 and under whose possession it was kept and in what condition. He has submitted that there is no evidence about loading, unloading, transportation etc of the said article at any place either from Solapur or at unknown place or at Ahmedabad. He has submitted that the prosecution has not proved the fact that the contraband article sent from Solapur Factory and the same was recovered at Village Vehlal, Ahmedabad was the one and the same article. It is submitted that it is not established that the article which is found is the contraband under the Act and the article was D-Ephedrine, which is neither the narcotic nor psychotropic substance. It is also submitted that the officer of ATS, Mr. Malhotra, is a person who conducted the raid, lodged FIR, drew various panchnamas and conducted the major part of investigation is not permissible under the law as per the decisions of the Hon'ble Supreme Court as well as various High Courts. It is submitted that no presence of the appellant Kishorsinh has been found at any place and nothing incriminating has been recovered or discovered from him and even his passport is also not recovered and no panchnama of recovery of any mobile phones from any accused Page 47 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined except accused Narendra Kanchha is prepared. Learned senior advocate also submitted that there is no material or evidence about meeting and formation of common intention between the accused and, therefore, the charge for alleged conspiracy is, unsustainable. He has submitted that when the factual aspect is not proved by the prosecution then the presumption under Section 35 of the Act cannot be drawn. He has further submitted that in the present case none of the relevant facts have been proved by the prosecution and, therefore, presumption under Section 35 of the Act cannot be drawn and the mandatory provisions of the Act has not been complied with by the Investigating Agency and the prosecution has also failed to show the due compliance of mandatory provision of law and therefore the case against accused cannot be sustainable. He has submitted that Mr. B.C.Solanki, ASP has not been examined to prove the case and the independent witnesses Including the panch witnesses have not supported the case of the prosecution and have turned hostile and the entire case is based on the testimony of the police officers, moreover, the material witnesses have not been examined by the prosecution which Page 48 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined also makes the case doubtful. He has submitted that the trial court has committed an error of law and facts in not appreciating the evidence and various documents have been wrongly exhibited without following the due process of law. He has submitted that the impugned judgment and order of conviction and sentence is based upon conjuncture and surmises and the reasons assigned by the trial court are contrary to law and, therefore, the appeal deserves to be allowed and the impugned judgment and order deserves to be quashed and set aside.
12.1 In support of his submissions, Mr.Lakhani, learned senior advocate has also relied upon the following decisions.
(1) State of Rajasthan Vs. Jag Raj Singh reported in (2016) 11 SCC 687;
(2) Arif Khan @ Agha Khan Vs. State of Uttarakhand reported in (2018) 18 SCC 380;
(3) State of Rajasthan Vs. Parmanand reported in (2014) 5 SCC 345;
(4) State of Rajasthan Vs. Gurmail Singh reported in (2005) 3 Page 49 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined SCC 59;
(5) Gurjant Singh @ Janta Vs. State of Punjab reported in (2014) 13 SCC 603;
(6) Rajiv Kumar Vs. State of U.P. reported in (2017) 8 SCC 791;
(7) State of NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru reported in (2005) 11 SCC 600;
(8) Subramanian Swamy Vs. A. Raja reported in (2012) 9 SCC 257;
(9) Bhagwan Swarup Lal, Bishan Lal, V. V. Subedar, Naray Vithal Sayana, Sardar Sardul Singh Caveeshar, Damoder Sarup Seth Vs. State of Maharashtra reported in AIR 1965 SC 682;
(10) Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence reported in 2018 (8) SCC 271;
12.2 In the case of Jag Raj Singh (supra), relied upon by Mr.Lakhani, learned senior advocate, the Hon'ble Supreme Court has held in paragraphs no.12, 13, 14 and 25 as under:-
"12. The High Court has come to the conclusion that there Page 50 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined is breach of mandatory provisions of Section 42(1) and Section 42(2) and further Section 43 which was relied by the Special Judge for holding that there was no necessity to comply Section 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of provisions of Section 42(1) and Section 42(2). The breach of Section 42 has been found in two parts. The first part is that there is difference between the secret information recorded in Exh. P-14 and Exh. P-21 and the information sent to Circle Officer, Nohar by Exh. P-15. It is useful to refer to the findings of the High Court in the above context, which is quoted below:
" From the above examination, it is not found that Exh. P- 14 the information which is stated to be received from the informer under Section 42(2) of Act or Exh. P-21, the information given by the informer which is stated to be recorded in the Rozanamacha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, Rather, Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case that section 42 (2) of Act, 1985 is complied with."
13. What Section 42(2) requires is that where an officer takes down an information in writing under sub-Section (1) he shall sent a copy thereof to his immediate officer senior . The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P 14 and Exh. P 24. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2).
14. Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42 or Sub-section (2) of Page 51 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Section 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD-11 and in his statement also he has not come with any case that as required by the proviso to Sub- section (1), he recorded his grounds of belief anywhere. The High Court after considering the entire evidence has made following observations :
"Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of jeep bearing HR 24 4057 under Section 42(1), nor any reasons in regard to not obtaining the search warrant have been recorded. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials."
25. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non- compliance of requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in paragraph 5. The present is not a case where insofar as compliance of Section 42(1) proviso even an arguments based on substantial compliance is raised there is total non- compliance of Section 42(1) proviso. As observed above, Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We thus, conclude that the High Court has rightly held that non compliance of Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.
12.3 In the case of Arif Khan @ Agha Khan (supra), the Page 52 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Hon'ble Supreme Court has held and observed in paragraphs no.27 and 28 as under:-
"27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.
28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer."
12.4 In the case of Parmanand (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.12, 13 and 14 as under:-
Page 53 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined "12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand s bag was searched.
From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.
13. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 - Surajmal is stated to have signed for himself and for respondent No.1 - Parmanand. Respondent No.1 Parmanand did not sign.
14. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before Page 54 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.
12.5 In the case of Gurmail Singh (supra), the Hon'ble Supreme Court has held and observed in paragraph no.3 as under:-
"3. We have perused the Judgement of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.05.1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on 5.06.1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."
12.6 In the case of Gurjant Singh @ Janta (supra), the Hon'ble Page 55 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Supreme Court has held and observed in paragraphs no.19 to 26 as under:-
"19. Unfortunately, the High Court has committed the same errors whilst considering the correctness of the judgment of the trial Court. The High Court being the first appellate Court was required to independently reappraise the entire material, record the conclusions supported by cogent reasons. In our opinion, the High Court failed to exercise its jurisdiction in dismissing the appeal.
20. Before concluding, we wish to refer to the decisions placed before us to state the importance of applying the stipulations contained in Section 50, before holding the search, in order to ensure fair consideration of the offence alleged against an accused under the NDPS Act, before reaching any conclusion about the commission of the alleged offence.
21. In the Constitution Bench decision of this Court in Baldev Singh (supra), the importance of due compliance of Section 50 has been mainly set out in paragraphs 28, 32 and 33 which are as under:
"28......The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted."
32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, Page 56 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial."
22. In Pawan Kumar (supra) wherein the Constitution Bench decision was referred to and was reiterated as under
in paragraph 26:Page 57 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023
NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined "26. .....Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him."
23. The aforesaid observations of the above Constitution Bench decision in Baldev Singh (supra) and the three Judge Bench decision in Pawan Kumar (supra), clearly highlight the legal requirement of compliance of Section 50 in its true spirit. It will have to be stated that such compliance of the requirement under Section 50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In other words, the purpose of Section 50 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to prevent an accused from committing an offence of a serious nature against the society, warranting appropriate Page 58 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined criminal proceedings to be launched and in the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed under Section 50 cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it.
24. Keeping the above principles in mind, when we examine the manner in which the trial Court dealt with the case of the prosecution as well as the defence pleaded, we find that the trial Court committed a serious flaw in holding that Sections 42 and 50 were not attracted to the case on hand, which we have found in the earlier paragraph was a total misreading of the provision as well as the decision relied upon by it. That apart, when admittedly Section 50 was invoked by offering the presence of a Gazetted officer or a Magistrate to the appellant and at the request of P.W.6, P.W.3, who was stated to be the D.S.P. at that point of time, was summoned and in whose presence the search and seizure was stated to have been made, the trial Court failed to appreciate whether such a search or seizure was really held in accordance with Sections 42 and 50 of the NDPS Act.
25. One of the grounds raised on behalf of the appellant was that P.W.3 was not holding the post of D.S.P. in a substantive manner in order to hold that he was a Gazetted officer on the date of search. According to the appellant, P.W.3 was not a regularly promoted D.S.P. but was only an Inspector functioning as a D.S.P. in a category called Own Rank Pay D.S.P. According to the appellant, P.W.3 was drawing the pay of an Inspector from I.R.D. and was not holding the post of D.S.P. on a regular basis. It was, therefore, contended that such a person who was not duly promoted as D.S.P., cannot be equated to the status of a Gazetted officer in order to hold that a search conducted in his presence was a valid search as contemplated under Section 50 of the NDPS Act. As far as the said point raised on behalf of the appellant, we do not find any material or a counter-stand taken to the effect that P.W.3 was a regularly promoted D.S.P. or that as per the rules even as an Own Rank Pay D.S.P., he could be equated to any other D.S.P., holding a substantive post. Unfortunately, as stated by us earlier, the trial Court having taken a view that Sections 42 and 50 were not applicable, completely omitted to examine the said defence raised on behalf of the appellant. We also do not find any contra evidence laid Page 59 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined on behalf of the prosecution to counter the said ground raised on behalf of the appellant.
26. In such circumstances it will be highly dangerous to simply affirm the ultimate conclusion of the trial Court in having convicted the appellant and the sentence imposed based on such conviction, as the same was without any ratiocination. It was most unfortunate that the High Court failed to independently examine the correctness of the findings recorded by the trial Court by simply extracting a portion of the judgment of the trial Court, while affirming the conviction.
12.7 In the case of Rajiv Kumar(supra), the Hon'ble Supreme Court has held and observed in paragraph no.44 as under:-
"44. The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself."
12.8 In the case of Navjot Sandhu @ Afsan Guru (supra), the Hon'ble Supreme Court has held and observed in paragraph no.13 as under:-
Page 60 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined
"13. Conspiracy
(i) As conspiracy is the primary charge against the accused, we shall now advert to the law of conspiracy - its definition, essential features and proof. Section 120A of IPC defines criminal conspiracy. It says: "when two or more persons agree to do or cause to be done (i) an illegal act or
(ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120B prescribes the punishment to be imposed on a party to a criminal conspiracy. As pointed out by Subba Rao, J in Major E.G. Barsay V/s. State of Bombay:
"... the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts".
(ii) Under Sec. 43 of the of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Sections 120A and 120B were brought on the statute book by way of amendment to IPC in 1913. The Statement of Objects and Reasons to the amending Act reveals that the underlying purpose was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. This definition is almost similar to the definition of conspiracy, which we find in Halsbury's Laws of England. The definition given therein is:
"Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied.....and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be".
(iii) In America, the concept of criminal conspiracy is no different. In American Jurisprudence, 2nd Edn., Vol. 16, Page 129, the following definition of conspiracy is given:
Page 61 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined "A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy."
(iv) Earlier to the introduction of Sec. 120A and B, conspiracy perse was not an offence under the Indian Penal Code except in respect of the offence mentioned in Sec.
121A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Sec. 107 of the Indian Penal Code. The punishment therefor is provided under various sections viz. Section 108 to 117. Whereas u/s. 120A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment u/s. 107 requires the commission of some act or illegal omission pursuant to the conspiracy. A charge u/s. 107/109 should therefore be in combination with a substantive offence, whereas the charge u/s. 120A/120B could be an independent charge.
(v) In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law................" Thus, Ss. 120A & B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still be attracted. The passages from Russell on Crimes, the House of Lords decision in Quinn V/s. Leathem, and the address of Willes, J to the Jury in Mulcahy V/s. Queen are often quoted in the decisions of this Court. The passage in Russell on Crimes referred to by Jagannatha Shetty, J in Kehar Singh's case (supra) is quite apposite:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough"Page 62 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023
NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined This passage brings out the legal position succinctly.
(vi) In Nalini's case, S.S.M. Quadri, J, pointed out that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is a sine qua non of the criminal conspiracy. Judge L. Hand, in Van Riper V/s. United States said of conspiracy: "When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime."
(vii) In Yashpal Mittal V/s. State of Punjab, Goswami, J, speaking for a three-Judge Bench analysed the legal position relating to criminal conspiracy. At pages 610-611, the learned Judge observed that "the very agreement, the concert or league is the ingredient of the offence." and that "it is not necessary that all the conspirators must know each and every detail of the conspiracy". It was then observed that "there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators."
(viii) Dr. Sri Hari Singh Gour in his well known 'Commentary on Penal Law of India', (Vol.2, 11th Edn. page 1138) summed up the legal position in the following words:
"In order to constitute a single general conspiracy there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient."
(ix) In State of H.P. V/s. Krishan Lal Pradhan, it was reiterated that every one of the conspirators need not take active part in the commission of each, and every one of the conspiratorial acts.
(x) In the case of State V/s. Nalini, S.S.M. Quadri, J, after a survey of case law made the following pertinent observations: (at paragraph 662) Page 63 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
(xi) There is exhaustive reference to various cases by Arijit Pasayat, J, in Mohd. Khalid V/s. State of W.B. (supra). In Mohammed Usman V/s. State of Maharashtra it was observed that the agreement amongst the conspirators can be inferred by necessary implication.
(xii) There is one particular observation made by Jagannatha Shetty in Kehar Singh's (supra) case which needs to be explained. The learned Judge observed:
"It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient".
(xiii) The expression 'physical manifestation' seems to be the phraseology used in the Article referred to by the learned Judge. However, the said expression shall not be equated to 'overt act' which is a different concept. As rightly stated by the learned senior counsel, Mr. Gopal Page 64 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Subramanium, the phrase has reference to the manifestation of the agreement itself, such as by way of meetings and communications.
(xiv) Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini's case (supra) at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." G.N. Ray, J. in Tanibeert Pankaj Kumar, observed that this Court should not allow the suspicion to take the place of legal proof.
(xv) As pointed out by Fazal Ali, J, in V.C. Shukla V/s. State,"
in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." In this context, the observations in the case Noor Mohammad Yusuf Mom in V/s. State of Maharashtra1 are worth nothing:
"... in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circum- stances and antecedent and subsequent conduct, among other factors, constitute relevant material."
(xvi) A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused.
(xvii) Lord Bridge in R. V/s. Anderson aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In AIR 1945 PC 140, the Privy Council warned that in a joint trial care must be taken to separate the Page 65 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. "A co-defendant in a conspiracy trial", observed Jackson, J, "occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together." In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. V/s. Falcone4 was referred to: "This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders." At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows:
"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
(xviii) One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K. J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict."
Page 66 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined (xix) Before we close the discussion on the topic of conspiracy in general, we must note the argument of the learned senior counsel for the State Mr. Gopal Subramanium who in his endeavour to invoke the theory of agency in all its dimensions so as to make each of the conspirators constructively liable for the offences actually committed by others pursuant to the conspiracy, relied on the dictum of Coleridge, J, in Regina V/s. Murphy, which will be referred to later on. The learned senior counsel submits that where overt acts have been committed, all conspirators will have to be punished equally for the substantive offence irrespective of non- participation of some of them in such overt acts. The observations made by Wadhwa, J in Nalini at paragraph 583 and by Mohapatra, J, in Firozuddin Basheeruddin V/s. State of Kerala, are pressed into service to buttress his argument that all the conspirators would be liable for all the offences committed pursuant to the conspiracy on the basis of the principle of agency where the conspiracy results in overt acts constituting distinct offences.
(xx) We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
(xxi) We have to explain the decision in Firozuddin's case at length in view of heavy reliance placed on it. The Court observed thus at para 25:
"... Thus, one who enters into a conspiratorial relationship Page 67 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission..."
(xxii) In para 26, the discussion was on the point of admissibility of evidence i.e. whether declaration by one conspirator made in furtherance of a conspiracy and during its subsistence is admissible against each co-conspirator. In other words, the question of applicability of the rule analogous to Sec. 10 of the Evidence Act was the subject matter of discussion. The following passage from Van Riper V/s. United States was quoted.
"Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime'. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all."
(xxiii) Then, in the immediately following paragraph, this Court observed as follows:
"Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres."
(xxiv) The conclusion at paragraph 27 that the conspirators are liable for the overt acts and crimes committed by their associates on the theory of agency is not in conformity with the discussion "Regarding admissibility of evidence"-which is the opening phraseology of paragraph 26. It was made clear in the second sentence of para 26 that contrary to the usual rule, any declaration by one conspirator made in furtherance of a conspiracy and during its pendency is admissible against each co-conspirator. Thus, the gist of Sec. 10 of the Evidence Act is implicit in that observation. Nothing is stated in paragraph 26 to indicate that their Lordships were discussing the larger question of culpability of all the conspirators for the criminal acts done by some of them pursuant to the conspiracy. However, the view expressed in paragraph 27 that on the theory of agency, the conspirators are liable for the statements and overt acts of the co-conspirators is at variance with the tenor of discussion in the earlier para. The apparent reason which Page 68 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined influenced their Lordships seem to be the observations of Judge Hand in the case of Van Riper v. United States (supra). Those observations were in the context of the discussion on the liability of the 'defendants' for conspiracy to defraud. The ratio of the decision is evident from the concluding observation: "For this reason, all that was done before he entered may be used against him, but obviously not what was done after he left." The joint liability for the overt acts involved in the actual crime did not come up for consideration. That apart, the statement of law that "such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime" does not hold good under Indian law. The reason is that the declarations contemplated by Judge Hand are made admissible u/s. 10 of the Indian Evidence Act but not under the substantive law of crimes. Thus, the conclusion reached at paragraph 27 overlooked the difference in legal position between what was obtaining in USA in the year 1926 and the statutory rule of evidence contained in the Indian Evidence Act. The proposition in the earlier para i.e. paragraph 25 (quoted supra) was too widely stated, probably influenced by the observations in Van Riper's case. In fact, in Firozuddin's case, some members of the group who conspired were convicted only u/s. 120B whereas the other members who accomplished the objective of conspiracy by committing the planned offence were convicted for the substantive offence as well as for the conspiracy. Thus, the observations made therein are no more than obiter dicta. The very decision of Maj. E.G. Barsay referred to by their Lordships make it clear that "for individual offences, all the conspirators may not be liable though they are all guilty for the offence of conspiracy."
(xxv) In Ajay Aggarwal V/s. Union of India, while discussing the question whether the conspiracy is a continuing offence, the following pertinent observations were made by K. Ramaswamy, J, speaking for the Bench at para 11:
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."
(xxvi) Thus, a distinction was maintained between the conspiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of Page 69 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined conspiracy and the parties to the conspiracy, a rule of evidence is enacted in Sec. 10 based on the principle of agency. We may recall that Sec. 10 of the Evidence Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in the opening part of the section. Thus, the evidence which is in the nature of hearsay is made admissible on the principle that there is mutual agency amongst the conspirators. It is in the context of Sec. 10 that the relevant observations were made in the first Caveeshar case and Nalini's case at page 517. In the former case, Jagannadhadas, J, after referring to the passage in Roscoe's Criminal Evidence (16th Edn.) that "an overt act committed by any one of the conspirators is sufficient, on the general principles of agency, to make it the act of all", observed that "the principle underlying the reception of evidence u/s. 10 of the Evidence Act of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency". It was not held in those cases that the same principle of agency should be stretched further to make all the conspirators liable for the offensive acts done pursuant to the conspiracy, irrespective of their role and participation in the ultimate offensive acts. Whether or not the conspirators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, in the case of Sec. 34 of the Indian Penal Code, the constructive liability for the crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But Sec. 120B does not convey that idea.
(xxvii) Learned senior counsel Mr. Gopal Subramanium placed reliance on the summary of legal position as to proof of conspiracy by Coleridge, J in Regina V/s. Murphy (supra) which is as under:
"...I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by Page 70 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means the design being unlawful?
...."If you are satisfied that there was concert between them, I am bound to say that being convinced of the conspiracy, it is not necessary that you should find both Mr. Murphy and Mr. Douglas doing each particular act, as after the fact of conspiracy is already established in your minds, whatever is either said or done by either of the defendants in pursuance of the common design, is, both in law and in common sense, to be considered as the acts of both."
(xxviii) We do not find anything in Murphy's case which supports the argument that all the conspirators are equally liable for the offence committed by some of them in execution of the common design. The Court was only considering whether the offence of conspiracy was made out and whether the acts or declarations of co-conspirators can be relied on against others. The crucial question formulated is: "Had they this common design and did they pursue it by these common means -the design being unlawful? The learned Judge was only explaining the ingredients of conspiracy and as to the principle on which anything said or done by either of the conspirators in pursuit of common design can be put against the other. In other words, the principle analogous to Sec. 10 was being highlighted.
(xxix) The other decision relied upon by the learned counsel for the State is Babu Lal v. Emperor at page 133. What was held in that case was that if several persons conspire to commit the offences and commit overt acts pursuant to the conspiracy, such acts must be held to have been committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The Privy Council was concerned with the interpretation of Page 71 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined the expression "in the course of the same transaction"
occurring in Sec. 239(d) of the old Criminal Procedure Code which dealt with joinder of charges. It does not support the argument based on the agency theory.
(xxx) One point raised by Shri Ram Jethmalani based on the decision of House of Lords in R V/s. Anderson remains to be considered. The principle laid down in that case is discernible from the following summary in the head note.
"Beyond the mere fact of agreement, the necessary mens rea for proving that a person is guilty of conspiring to commit an offence u/s. 1(1) of the Criminal Law Act 1977 is established if, and only if, it is shown that he intended when he entered into the agreement to play some part in the agreed course of conduct involving the commission of an offence. Furthermore, a person may be guilty of conspiring even though he secretly intended to participate in only part of the course of conduct involving the commission of an offence."
(xxxi) The learned counsel submits that in order to sustain a charge of conspiracy u/s. 120A, the same test could be usefully applied. That means, there must be evidence to the effect that the accused who entered into the agreement in the nature of conspiracy had intended to play and played some part in the agreed course of conduct involving the commission of an offence. But, if there is no evidence attributing any role to the accused in the course of conduct involving the commission of offence, he or she cannot be held guilty u/s. 120A. However, as rightly pointed out by the learned counsel for the State Mr. Gopal Subramanium, the provision dealt with by the House of Lords, namely, Sec. 1(1) of the Criminal Law Act, 1977 is different from the wording of Sec. 120A. It reads as follows:
"Subject to the following provisions of this Part of this act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions, he is guilty of conspiracy to commit the offence or offences in question."
(xxxii) It may be noted that by the 1977 Act, the offence of conspiracy at common law was abolished and a statutory Page 72 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined definition of 'conspiracy to commit the offence' was enacted. The provision that was interpreted by the House of Lords is not in pari materia with the provision in the Indian Penal Code. However, one clarification is needed. If there is proof to the effect that the accused played a role, attended to certain things or took steps consistent with the common design underlying the conspiracy, that will go a long way in establishing the complicity of the accused, though it is not a legal requirement that the conspirator should do any particular act beyond the agreement to commit the offence.
12.9 In the case of Subramanian Swamy (supra), the Hon'ble Supreme Court has held and observed in paragraph no.52 as under:-
"52. Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the MoF and that of DoT and between two Ministers, which are all recorded. Suspicion, however, strong, cannot take the place of legal proof and the meeting between Shri P. Chidambaram and Shri A. Raja would not by itself be sufficient to infer the existence of a criminal conspiracy so as to indict Shri P. Chidambaram. Petitioners submit that had the Minister of Finance and the Prime Minister intervened, this situation could have been avoided, might be or might not be. A wrong judgment or an inaccurate or incorrect approach or poor management by itself, even after due deliberations between Ministers or even with Prime Minister, by itself cannot be said to be a product of criminal conspiracy."
12.10 In the case of Sardar Sardul Singh Caveeshar (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.8 and 13 as under:-
Page 73 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined "8. Before dealing with the individual cases, as some argument was made in regard to the nature of the evidence that should be adduced to sustain the case of conspiracy, it will be convenient to make at this stage some observations thereon. sec. 120-A of the Indian Penal Code defines the offence of criminal conspiracy thus.:
"When two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. "
The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence : it can be established by direct evidence or by circumstantial evidence. But sec. 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co-conspirators. The said section reads :
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. "
This section, as the opening words indicate, will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done Page 74 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything, said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour.
13. The next question is whether this appellant was a party to the Empire conspiracy. He was a close associate of Shankarlal in the Political field, he being the President of the Forward Bloc and Shankarlal being its Vice-President. That is how they were drawn together. There is also evidence that out of the 63,000 shares of the Jupiter that Page 75 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined were purchased in August 1949 by Shankarlal Group, 4475 shares were allotted to this appellant. It is, therefore, clear that Accused-6, though ex facie he was neither a Director nor an office-bearer in the Jupiter, had heavy stakes in it. We have already noticed that after the purchase of the said shares from and out of the Jupiter funds, a bogus loan in the name of Accused-6 for a sum of Rs. 25,15,000.00 was shown in the Jupiter accounts and later on it was substituted by other manipulations. That he was a willing party to these manipulations is also made clear by Exs. Z- 305A and Z-125 which record the second loan in favour of this accused. Ex. Z-305A is a receipt passed by Accused-6 to the Tropical acknowledging the receipt of a sum of Rs. 26,15,563/10/6 in full settlement of the amount advanced by him to them against the proposed purchase of their building and plots of land. It is not disputed that this transaction was only a bogus one brought about to cancel the fictitious loan given to Accused-6; and this indicates that this accused was taking active part in the manipulations of the Jupiter accounts. Ex. 125 is another receipt passed by Accused-6 to the Jupiter for having received a sum of Rs. 5,30,000.00 on 27.12.1949. This is, as we have already stated earlier, one of the devices adopted to cancel the earlier bogus loans. This also establishes the complicity of this accused in the Jupiter transactions. It is, therefore, clear that Accused-6 had an ample motive to join the conspiracy to lift the Empire funds to cover up the defalcations made in the Jupiter. Ex. F dated 17.03.1949 is a letter written by Accused-6 to one Chopra, a broker, wherein he authorized the said Chopra to negotiate the purchase of majority of the share of the Empire or at least a minimum of 2,200 shares of the above Company from M.S. Ram Ratan Gupta, Gulab Chand Jain and/or their nominees or friends. He informed Chopra that the rate would be approved "by us'' from time to time and that he would be paid a consolidated brokerage of Rs. 40,000.00. Though this letter was written about 1 1/2 years before the alleged conspiracy, it was subsequent to 29.01.1949 the date when the Jupiter securities were purchased from and out of the Jupiter funds by making necessary manipulations in their accounts. This was the first indication of the conception of the scheme of conspiracy to get at the Empire funds. This shows that, along with Shankarlal, Accused-6 was also a brain that gave the direction to the conspiracy. The letter also indicates that Accused-6 expected that the purchase of the majority of shares of the Empire would take considerable Page 76 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined time and also that it would be by bits or in small blocks, for he said in the letter that the rate would be approved by them from time to time. The words "by us" in the letter further show that he was not writing the letter only for himself but on behalf of a group and he was only one among many who were seeking to purchase the Empire shares P.W. 1, who was doing business in the name of Chopra and Co., deposed in regard to this document. He said that in pursuance of the authority given to him by Accused-6 he negotiated for the purchase of the Empire shares; he also spoke to the fact that the words "by us" in the authority meant the group consisting of Accused-6, Shankarlal and accused -1 and that he corresponded with Shankarlal subsequently in respect of the said negotiations. In the said circumstances, the time lag between the letter and the period of conspiracy for which the accused are charged is not in itself sufficient to detract from its evidentiary value. In the context of the subsequent events this letter certainly connects Accused-6 with the Empire fraud.
12.11 In the case of Surinder Kumar Khanna (supra), the Hon'ble Supreme Court has held and observed in paragraph no.14 as under:-
"14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of Page 77 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence."
13. Mr.Nanavati, learned advocate for appellant no.2 in Criminal Appeal No.2298 of 2019 has supported the arguments of Mr.Lakhani, learned senior advocate and has submitted that the appellant herein has not played any active role in the alleged offence. He has submitted that so far as the allegation with regard to hatching of criminal conspiracy is concerned, no independent evidence has been led by the prosecution to establish the alleged conspiracy and nevertheless the criminal conspiracy is a distinct offence and must be proved in law and it cannot be presumed. He has submitted that as per the prosecution case, the contraband article has originated from Avon Life Science Factory, however, no evidence has been led by the prosecution to show the place of origin of the contraband and the employees of the said factory examined by the prosecution does not speak about the material having been dispatched from the factory and does not identify the seized material which belonging to the factory. He has submitted that so far as the transportation of contraband article from Maharashtra to Page 78 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Ahmedabad is concerned, no evidence has been led by the prosecution on the aspect of date and time of loading of the contraband in the truck bearing registration No.GJ-12-AT-8544.
He has submitted that the prosecution has not led any evidence about the movement of the truck loaded with contraband article from Maharashtra to Gujarat and not led any evidence on the aspect of unloading of the contraband from the godown from where it was seized by the police. He has submitted that though the prosecution has examined the owner and driver of the truck, however, they have not supported the case of the prosecution and nothing has been elicited in the cross-examination of these witnesses and they have declared hostile. He has submitted that the witnesses, who examined by the prosecution, do not identify the appellant herein, who as per the case of the prosecution, had sent the contraband article from Maharashtra to Gujarat. He has submitted that the police officer who received secret information about the contraband article has not been examined by the prosecution and no any explanation has been offered by the prosecution for non-examination of such witness and it is incumbent upon the prosecution to have examined the said Page 79 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined witness. He has submitted that the prosecution has not led any evidence to establish that the secret information received by the police officer was reduced in writing and entry to that effect entered into a register and copy thereof sent to the superior officer and, therefore, there is a non-compliance of the statutory provisions of law. He has submitted that there is no evidence on record indicating existence of any emergent circumstances which warrants or justifies immediate non-compliance of the mandatory and obligatory requirement contained in Section 42 of the Act. He has also submitted that so far as the storage of contraband post seizure is concerned, it is settled law that failure on the part of the investigating agency to safely and securely store the seized contraband material is fatal to the prosecution and, this fact by itself vitiates the case of the prosecution. He has submitted that though according to the prosecution the appellant had purchased a sim card in the name of another person and used the same for making phone calls to discuss the transportation of the contraband article, no any evidence has been produced on record showing the relevance of the sim card which allegedly purchased by the appellant in the name of some Page 80 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined other person for the alleged offence. He has further submitted that the prosecution has failed to show that the said sim card was being used by the appellant for making phone for transaction of transportation of contraband article and no mobile phone has been recovered or discovered by the police which can be said to be belonging to or otherwise in conscious possession of the appellant in which the said sim card is alleged to have been used for making phone calls. He has submitted that the appeal deserves to be allowed and the impugned judgment and order deserves to be quashed and set aside.
14. Per contra, Mr.Pandya, learned Additional Public Prosecutor for the respondent - State of Gujarat has submitted that the appellants have committed the alleged offence. He has submitted that the concerned officers had complied with all the requirements of the provision under Section 42 of the Act. It is submitted that the compliance of Section 42 of the Act is apparent from the record and Section 42 of the Act is complied with by following procedure which as under:
On 14.04.2016, Mr. B. C. Solanki, ACP, SOG, Ahmedabad Page 81 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined city received a secret information which was reduced in writing as is required under Section 42(1) produced at Exhibit 113.
The said information was forwarded by Mr. B. C. Solanki to the Police Superintendent, ATS, Gujarat vide a letter dated 14.04.2016 produced on record at Exhibit 112.
The Police Superintendent orally informed the informant Mr. V. R. Malhotra, P.I., ATS, Gujarat and instructed him to arrange for raid in pursuance of the secret information which was reduced in writing as is reflected from Exhibit
82. This secret information was recorded in the ATS and the extract of the information registered is produced on record at Exhibit 81.
Exhibit 83 and 94 shows the entry in the station diary regarding the vehicle particulars, names and identification of the officers forming part of the raid and vehicle register showing date, time and vehicle used in commuting.
Subsequently, as the procedure of raid continued beyond sunset, the concerned officer Mr.V. R. Malhotra addressed a letter to the Superintendent of Police, ATS giving reasons and seeking permission to continue the raid after sunset.
14.1 Learned Additional Public Prosecutor for the respondent -
State has submitted that so far as the provision under Section 50 of the Act is concerned, the concerned In-charge Officer, informant had sought for consent of the accused as mandated in the said provision and pursuant to the consent being reduced in writing and signed by the accused and further procedure was undertaken. Learned Additional Public Prosecutor has submitted that as far as the compliance of Section 57 of the Act is Page 82 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined concerned, the In-charge Officer of the raiding party had prepared arrest panchnama and seizure panchnama and the same was reduced in writing and sent the same vide letter dated 15.04.2016 at Exhibit 95 and the same has been verified by the informant in his deposition at Exhibit 79.
14.2 Learned Additional Public Prosecutor has referred to and relied upon the depositions of P.W.29, P.W.32, P.W.34 and P.W.40 and has submitted that the muddamal article seized during the raid and kept the same in sealed containers which was handed over to the FSL on 16.04.2016 and the same was received by the FSL after following proper procedure. He has submitted that the appellants have not shown anything to prove their case and merely on baseless apprehension has raised such contention. With regard to the contention that the recovered contraband 'Ephedrine' is not a contraband substance as per the NDPS (Regulation of Controlled Substance) Order, 213 and the same is waste product, learned Additional Public Prosecutor has submitted that such contention is absolutely misplaced and on perusal of the contents of RCS Order, the order does not make Page 83 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined out any difference between isomers of ephedrine and there is nothing on record to show that recovered contraband was d-
ephedrine or any other derivative of ephedrine. He has submitted that from the report of FSL, it shows positive results for ephedrine and the appellants have not been able to establish that the samples collected were d-ephedrine and not anything which is not covered under the RCS Order. He has submitted that the trial Court has framed the question with regard to this issue and has given satisfactory reasoning while discarding the contentions of the appellants. He has submitted that as per the preliminary test or on spot test conducted during the raid by the FSL of the contraband found from accused no.1 - Narendra, it appears that the contraband is 'amphetamine derivatives'. He has submitted that P.W.2 Rajendrasinh Parmar has not supported the case of prosecution, however, in his statement under Section 164 of the Cr.P.C. has clearly stated that he had loaded the consignment containing 55 bags of ephedrine from Solapur, Mahrashtra by accused Bharat and then he delivered the same to accused Narendra at Ahmedabad, which fact is recorded by the trial court in the impugned judgment and order. He has Page 84 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined submitted that P.W.4 Yogi Vyas admitted that the flight tickets for four persons were booked for various places and such testimony corroborates with the case of the prosecution regarding link between the appellants of the conspiracy. While relying upon the depositions of P.W.7 Jayesh Patel and P.W.10 Mukeshbhai Nanubhai Patel, learned APP has submitted that it is evident that Narendra was the tenant of the shed located at Vehelal, Daskroi in 2016 and P.W.10 stated that he had given the shed on rent to the tune of Rs.1,00,000/- through the broker and he had seen the police entering the premises of Narendra Kacha.
He has submitted that the panchnama at Exhibit 46 corroborates the location of the shed and presence of Narendra at the shed on 14.04.2016. and in view of the said testimonies, it is evident that Narendra was in conscious possession of the contraband and hence, the presumption under Section 54 of the Act would be attracted. He has submitted that P.W.39 V. R. Malhotra, P.W.41 M. H. Thakar and P.W.42 M. C. Nayak have supported the case of the prosecution and their testimonies cannot be discarded and the testimonies of the first informant and other police officers including the investigating officers must be given Page 85 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined due weightage and the same cannot be discarded simply because most of the independent witnesses did not support the case of the prosecution. Mr.Pandya, learned Additional Public Prosecutor has referred and relied upon the decision of the Hon'ble Supreme Court in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120. It is submitted that the entire conspiracy has it's genesis from the FIR lodged against the accused persons in Thane, Mumbai and investigation with regard to similar offence with same modus operandi was underway at the relevant point of time, but in fact, the contact details of many appellants were obtained during the search and seizure carried out by the concerned officer in Mumbai. It is also submitted that Investigating Officer has produced a list of documents, which includes list of contact details which was used by the accused at the relevant point of time in furtherance to committing the offence and the independent witnesses, who have not supported the case of the prosecution had provided contact details during their statements to the police officers and based on those statements, the police officers verified the details from the concerned phone company.
Page 86 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined He has submitted that accused - Narendra found in conscious possession of the contraband and he was arrested by the investigating agency and investigating agency prepared seizure memo of recovered muddamal and articles seized from the spot.
He has submitted that the CDR details of all the concerned mobile numbers were obtained which were initially given tentative marks owing to the objection raised by the defence and the relevant CDR summary substantiates that the accused persons were in constant touch with each other through the mobile numbers and, therefore, the aspect of hatching conspiracy by all the accused stands proved beyond reasonable doubt. It is submitted that the defence side has miserably failed to dispel the rigors of Section 54 of the Act with regard to the presumption and the contraband was recovered from the accused Narendra and, therefore, the law presumes the accused of being guilty of the offence under the provisions of the Act. It is submitted that the burden to dispel such presumption lies on the accused which is not dispelled by the accused in his statement recorded under Section 313 of the Cr.P.C. It is submitted that though P.W.2, the truck driver, turned hostile during the trial, the Page 87 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined prosecution was able to establish the presence of the truck and the contraband at the place of incident by preparing panchnama and the presence of the accused at the shed has been corroborated by the evidence of independent witnesses i.e. P.W.7 and P.W.10 who confirmed that they had seen the appellants entered in the premises of accused Narendra and, therefore, it is established that the accused Narendra was present at the premises at the time of raid. It is submitted that considering the seriousness of the offence and the nature of the offence, the criminal appeals being meritless deserve to be dismissed.
14.3 Mr.Pandya, learned Additional Public Prosecutor for the respondent - State has relied upon the following decisions:-
(1) C. Muniappan and others Vs. State of Tamil Nanu reported in (2010) 9 SCC 567;
(2) Baldev Singh Vs. State of Haryana reported in (2015) 17 SCC 554;
(3) Sanjeetkumar Singh @ Munnakumar Singh Vs. State of Chhatisgarh, Criminal Appeal No.871 of 2021 dated Page 88 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 30.08.2022;
(4) Neeraj Dutta Vs. State (Govt. of NCT of Delhi) reported in AIR 2023 SC 330;
14.4 In the case of C. Muniappan and others (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.55, 78, 81, 82, 83 and 84 as under:-
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi V/s. State of Maharashtra, AIR 1974 SC 220; Karnel Singh V/s. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav V/s. State of Bihar, AIR 1998 SC 1850; Paras Yadav V/s. State of Bihar, AIR 1999 SC 644; State of Karnataka V/s. K. Yarappa Reddy, AIR 2000 SC 185; Amar Singh V/s. Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri V/ s. State of Gujarat, AIR 2002 SC 1051; and Ram Bali V/s. State of U.P., AIR 2004 SC 2329).Page 89 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023
NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined
78. In Aloke Nath Dutta & Ors. V/s. State of West Bengal, (2007) 12 SCC 230, this Court disapproved the exhibiting and reading of confessional statement of the accused before the police as a whole before the court, as it had not been brought on record in a manner contemplated by law.
The Court held as under : (SCC p. 257, para 53) "53.... Law does not envisage taking on record the entire confession by making it an exhibit incorporating both the admissible or inadmissible part thereof together. We have to point out that only that part of confession is admissible, which could be leading to the recovery of dead body and/or recovery of articles....; the confession proceeded to state even the mode and manner in which they allegedly killed. It should not have been done. It may influence the mind of the Court."
While deciding the said case, this Court placed reliance on the judgments in Pulukuri Kotayya V/s. King-Emperor, AIR 1947 PC 67; the State of Maharashtra V/s. Damu Gopinath Shinde & Ors., AIR 2000 SC 1691; and Anter Singh V/s. State of Rajasthan, AIR 2004 SC 2865.
81. It is settled legal proposition that:
"6. ..... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof."
(vide Bhagwan Singh V/s. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey V/s. State of Orissa, AIR 1977 SC 170; Syad Akbar V/s. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari V/s. State of Madhya Pradesh, AIR 1991 SC 1853).
82. In State of U.P. V/s. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of Page 90 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde V/s. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. V/s. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. V/s. State of U.P., AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and Subbu Singh V/s. State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature."
14.5 In the case of Baldev Singh (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.10 and 11as under:-
"10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated.Page 91 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023
NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.
11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad (dead) by LRs. vs. State of M.P., AIR 2007 SCW 5589 = (2007) 7 SCC 625, it was held as under:-
"[24] In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.
[25] It is not necessary to refer to various decisions on the point. We may, however, state that before more than half- a-century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated:
"The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration".
(emphasis supplied) [26] In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated:
Page 92 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
14.6 In the case of Sanjeetkumar Singh @ Munnakumar Singh (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.17 and 18 as under:-
"17. At the outset we would take note of some propositions of law on which there can be no controversy. They are, (i) that as per the decision of the Constitution Bench of this Court in Mukesh Singh (supra), the fact that the informant also happened to be the investigator, may not by itself vitiate the investigation as unfair or biased; (ii) that it is not always necessary that the evidence of the police witnesses have to be corroborated by independent witnesses, as held in Dharampal Singh and Mukesh Singh (supra); (iii) that the independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice as held in Rizwan Khan (supra); and (iv) that once it is established that the contraband was recovered from the accused's possession, a presumption arises under Section 54.
18. But of the Court has - (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always Page 93 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats.
33-A. It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co-accused."
14.7 In the case of Neeraj Dutta (supra), the Hon'ble Supreme Court has held and observed in paragraph no.67 as under:-
"67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
15. Over-and-above the oral and written submissions, learned Page 94 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined advocates appearing on behalf of the respective appellants have commonly raised the contention with regard to the non-
compliance of the statutory and mandatory provision of the Act and they unanimously raised the contention with regard to the following aspects:-
(a) The case of the prosecution against the accused with regard to the conspiracy is concerned, the accused in connivance with each other conspired to get narcotic substances from the appellant of Criminal Appeal No.2349 of 2019, who is being Director of Avon Life Science Private Limited earlier known as Avon Organics Limited situated at Maharashtra where the huge quantity i.e. 400 kilogram and odd control substance ephedrine was purchased with a view to supply the same to the foreign countries with the help of absconding accused namely Vijaygiri @ Vikki Anandgiri Goswami and Dr. Abdullah and till date not in India. Both the said persons are in foreign country with the help of the appellant of Criminal Appeal No.2298 of 2019, who has procured the said substance from the accused Manoj Jain and brought at Ahmedabad, which was kept in the custody of Page 95 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Narendra Kacha of Criminal Appeal No.2328 of 2019. The said information received by ATS Ahmedabad and one of the A.C.P. Mr.D. B. Solanki has received the secret information and sent the same to his higher office and on the basis of such information, raiding party arraigned the raid and with the help of the police personnel and other persons raided the premises being industrial shed of one Jayesh Patel situated near the connecting road of Village Vahelal, Taluka Daskroi, District Ahmedabad. The said industrial shed was landed to accused - Narendra Kacha and in whose presence, the substance ephedrine were found in 55 bags totally weighing 1364 kilogram which was transported from Avon Life Science Private Limited. In presence of the panchas, the raiding party seized the substance from Narendra Kacha and subsequently the said substance was sent to the FSL and the FSL confirmed the same as control substance which is used for preparing some narcotic drug as subsidiary agent and, therefore, the complaint came to be registered by ATS Ahmedabad against the accused and during the course of investigation, all the accused have been found to be involved in the alleged offence. The contention with regard to the conspiracy Page 96 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined hatched by the Investigating Officer, all the appellants have unanimously raised voice. It is submitted that with regard to the so-called conspiracy, the prosecution has failed to establish the case against the accused persons and there is no documentary as well as oral evidence led by the prosecution and hence, the prosecution has failed to establish the said fact beyond reasonable doubt. It is submitted that Trial Court has considered such fact against the accused while passing the impugned judgment and order of conviction and sentence which is erroneous.
(b) It is submitted that the another contention raised by the appellants is common in nature that the prosecution has failed to establish the case against the appellants with regard to the mandatory and statutory provisions of the Act, however, the Trial Court has not given the benefit in favour of the accused. It is further submitted on behalf of the appellants that the very same investigating officer has recorded the complaint, carried out the investigation till the filing of the report, recorded the panchnama and collected the documentary evidence and, therefore, the Page 97 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined same is bias and to prove the case against the accused, the investigating officer has to carry out proper investigation.
(c) So far as accused of Criminal Appeal No.2298 of 2019 is concerned, it is submitted that as alleged by the prosecution that the appellants visited the foreign country and met the accused who are yet to be arrested namely Vijaygiri @ Vikki Anandgiri Goswami and Dr. Abdullah where they have conspired for the purpose of procurement of the psychotropic substance accompanied with accused Manoj Jain. It is further contended on behalf of the appellants that there was no any oral as well as documentary evidence led to that effect and not produced any details with regard to the fact that all the accused have visited the foreign country and if so, the prosecution has neither seized the passports nor produced the details of travelling or the date on which the accused have travelled to the foreign country.
It is also contended that the prosecution has miserably failed to establish the link and chain to the alleged offence and, therefore, the Trial Court ought to have come to the conclusion that the prosecution has failed to establish the case beyond reasonable Page 98 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined doubt and, therefore, the impugned judgment and order deserves to be quashed and set aside. It is also contended on behalf of the appellants that how the substance transported from Maharashtra to Solapur and from Solapur to Ahmedabad and for that there is no any concrete proof as to how and in which manner the said substance was transported and reached to Ahmedabad. It is further contended on behalf of the appellants that the prosecution has not collected any evidence with regard to the fact that from which road the truck was passed and reached to Ahmedabad and also not collected any evidence i.e. toll receipt or CCTV footage from any tollbooth from Maharashtra to Ahmedabad to prove the transportation of the psychotropic substance and, therefore also, the Trial Court has committed an error in coming to the conclusion that the accused have committed the alleged offence while passing the impugned judgment and order of conviction. It is further argued on behalf of the appellants that the prosecution has completely ignored the mandatory provision with regard to the search and seizure as provided under the statute and not followed the procedure as enumerated under the Act and, therefore, the appellants are Page 99 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined entitled to get the benefits of non-compliance of the provision of the Act. It is contended on behalf of the appellants that the prosecution has withheld material facts by not examining the material witnesses and, therefore, the prosecution has not established the case against the accused. It is contended on behalf of the appellants that so far as the psychotropic substance which is found from the possession of Narendra Kacha which is lifted from the godown of Avon Life Science Private Limited is concerned, the prosecution has not collected any evidence with this regard. It is further argued on behalf of the appellants that the FSL officer has not supported the case as the officer is not in a position to say that whether the substance is ephedrine or d-
ephedrine or any other derivative of ephedrine and the case of the prosecution is baseless as there is no material to prove that the said substance seized from the possession of the accused -
Narendra Kacha, which substance is lifted from the godown of Avon Life Science Private Limited run by accused Manoj Jain. It is further contended on behalf of the appellants that there is no material come on record to connect the accused with the alleged conspiracy and there is no any evidence on record how the Page 100 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined psychotropic substance found from the possession of Narendra Kacha and whether there is any conspiracy with regard to procurement and transportation of the said substance to the foreign country. It is submitted that the prosecution has not led any sufficient evidence and, therefore, the present appeals deserve to be allowed and the impugned judgment and order deserves to be quashed and set aside.
16. Further, learned Additional Public Prosecutor for the respondent - State has vehemently submitted that the prosecution has proved the charge levelled against the accused persons beyond reasonable doubt by producing sufficient material evidence before the Trial court and hence, no interference is required to be called for in the present appeals.
17. Considering the aforesaid facts and circumstances of the case, I am of the considered opinion that it is true that though the ATS Ahmedabad received an information with regard to the huge quantity of psychotropic substance which is to be reached at Ahmedabad for the purpose of transportation to the foreign Page 101 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined countries for manufacturing narcotic drug, has not carried out the investigation and there is certain lacuna in the investigation but because of this lacuna, the question arises as to whether the accused can be acquitted or not. I decide as under:-
17.1 So far as the case of the prosecution with regard to the alleged transaction of psychotropic substance from Avon Life Science Private Limited firstly from Maharashtra to Solapur and secondly from Solapur to Ahmedabad is concerned, the accused Narendra Kacha from whose possession mobile number was found and he was in constant touch with the driver of the truck wherein psychotropic substance was transported from Solapur to Ahmedabad. The prosecution has produced the CDR details on record. From bare perusal of the CDR report, it is relevant to note here that the prosecution has established the fact that Narendra Kacha who is in constant touch with the driver of the truck who is being shown as prosecution witness has not supported the case of the prosecution and subsequently declared hostile, but, mere declaration of hostile, his deposition cannot be ignored in toto which is recorded by the Trial Court. It is relevant to note here Page 102 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined that the statement of the driver under Section 164 of the Cr.P.C.
was recorded and during the course of examination, the prosecution has examined the driver and has brought said facts and genesis on record. Thus, mere declaration of hostile witness or there is any irregularity with regard to proving the evidence, under Section 164, the whole case of the prosecution cannot be discarded and the accused cannot be acquitted. When there is a case of huge quantity of psychotropic substance which is recovered from the possession of the accused Narendra Kacha, the prosecution has also examined the witness i.e. owner of the industrial shed and also the broker who is dealing with Narendra Kacha to the original owner of the said industrial shed for the purpose of tenancy. From the deposition of the said witness, it reveals that Narendra Kacha has entered into an agreement to rent of the said premises with the original owner and from the said premises, in presence of Narendra Kacha along with two other workers, carried out the raid and psychotropic substance was in concealed in the said industrial shed and, therefore, mere irregularity or lapse on the part of the prosecution, the whole case cannot be discarded and thus the Trial Court has rightly Page 103 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined passed the impugned judgment and order of conviction after dealing with the submissions and discussing the fact that the date on which the search and seizure was carried out by the Investigating Officer at the place where the accused Narendra Kacha was found and control substance was also kept there and from further investigation, the said fact was proved beyond reasonable doubt. It appears that the Trial Court has, by examining P.W.10 at Exhibit 38 passed the impugned judgment and order of conviction and even the accused Narendra Kacha in his statement under Section 313 of the Cr.P.C. has not given any satisfactory explanation that on the date of search and seizure why he was present at the place and he has connection with the alleged incident of procurement and conspiracy with other accused to transport the contraband article to the foreign country. By mere raising contention that the prosecution has not complied with the statutory and mandatory provisions of law, the whole case cannot be discarded and hence, the findings recorded by the Trial Court is not at all perverse or illegal.
18. I have gone through the impugned judgment and order of Page 104 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined conviction and I have minutely scrutinized the materials available on record. It appears that the Trial Court has dealt with all the contentions raised by the accused in detailed and under different heads. The Trial Court has observed that the prosecution has established the case against the accused persons beyond reasonable doubt. The Trial Court has rightly discussed that the control substance is covered under the Control Substance Order of 2013, however, the accused have tried to deficit the control substance order, 2013 on the ground that there is no mentioned with regard to ephedrine and d-
ephedrine or any other derivative of ephedrine which is covered under the control substance order, 2013.
19. With regard to non-compliance of the mandatory provisions under Sections 42, 50, 52 and 57 of the Act, from perusal of the evidence of the witnesses, it appears that the prosecution has proved the said facts by leading cogent and material evidence on record in detailed while referring and relying upon the various decisions of the Hon'ble Supreme Court and, thus, the findings recorded by the Trial Court is in consonance with the settled Page 105 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined principles of law and there is no any infirmity in the findings recorded by the Trial Court. With regard to the non-compliance of Section 50(2) of the Act which provides for sealing and sending the sample to the FSL, the Trial Court has referred to and relied upon the oral and documentary evidence led by the prosecution i.e. P.W.29, P.W.32, P.W.34, P.W.39 and P.W.40 and proved the charge levelled against the present appellants. The prosecution has also led the sufficient evidence and the material against the accused before the Trial Court to prove the case and the charge levelled against them and, therefore, the Trial Court has summarised the case in paragraph no.34 against the accused. Considering the averments and the arguments advanced on behalf of the accused and on perusing the documentary evidence at Exhibit 81, 83, 84, 85, 86, 94, 112 and 113, it appears that the prosecution has elaborately and substantially complied with the provision of Section 42 of the Act following the procedure to the fact that one Mr. B. C. Solanki, ACP, SOG, Ahmedabad City received a secret information on 14.04.2016 which came to be reduced in writing and forwarded to the higher officer under Section 42(1) of the Act. Such Page 106 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined information is conveyed to the informant Mr.Malhotra by the office of the Superintendent of Police orally and the same is reduced in writing as reflected from Exhibit 82. The extract of the information register is also placed on record at Exhibit 81 and the entry mutated in the station diary at Exhibit 83 and 84. From bare perusal of Exhibit 85 and 86, it reveals that while carrying out the search and seizure after the sunset, the concerned officer has given sufficient reasons and seek permission from the higher authority to continue the raid and after informing the accused - Narendra Kacha, they have continued the process of raid. So all these materials suggest that the concerned officer has complied with the provision of law and the case is proved beyond reasonable doubt. It is also not the case of the accused that the informant or any person carried investigation has any grudge or any bias against the accused or any animosity to implicate the accused in the alleged offence. Thus, mere lapse on the part of the prosecution cannot be thrown away and there is no any illegality or perversity in the findings recorded by the Trial Court while convicting the accused.
Page 107 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined
20. It is evident from the investigation papers and the evidence recorded by the Trial Court that there is sufficient compliance of Section 50 of the Act which fact is established by the prosecution. The concerned officer has sought consent of the accused who found from the place where psychotropic substance was seized and after getting his consent, the search and seizure was carried out by the Investigating Agency of the place where the huge quantity of psychotropic substance was found. The said consent being reduced in writing and signed by the accused and further procedure is undertaken by the Investigating Officer which is produced at Exhibit 84. The said fact is substantiated that there is sufficient compliance of the law by the concerned Investigating Officer during the course of the investigation and, therefore, the contention raised by the appellants' side has no force. So far as compliance of Section 57 of the Act is concerned, since the prosecution has proved the document at Exhibit 95 beyond reasonable doubt, the contention raised by the appellants is not in consonance with the facts of the present case and the materials on record. Neither of the accused have raised any objection that they have been falsely implicated in the Page 108 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined alleged offence nor there is any prior animosity or grudge against any of the accused with the police officers, who have investigated and carried out the search and seizure of the place.
There is neither any evidence on record nor suggestion with regard to implication in the alleged offence, therefore, the finding recorded by the Trial Court is in consonance with the facts of the present case. Mere defect or negligence in the investigation on the part of the investigation officer, the whole case of the prosecution cannot be discarded. Now, it is well settled by the Hon'ble Supreme Court in the case of C. Muniappan and another (supra) that "defect in the investigation by itself cannot be a ground for acquittal.
Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. The conclusion Page 109 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Learned advocates for the appellants has relied upon the decision of the Hon'ble Supreme Court in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539, wherein the Hon'ble Supreme Court has decided the issue with regard to the non-compliance of the statutory provision of Section 42(1) and (2). No doubt, I am in fully agreement with the observation and the ratio laid down by the Hon'ble Supreme Court that there is no any second opinion with regard to the ratio laid down by the Hon'ble Supreme Court.
Here in the present case, this Court has already discussed the evidence at Exhibit 82, 83, 84, 85, 86, 94, 112 and 113 which establishes that there is sufficient compliance of the said Page 110 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined provision by the Investigating Agency during the course of the Investigation. Therefore, this Court is of the opinion that the prosecution has proved the case against the accused by leading cogent and convincing evidence. It also appears that the police witnesses have supported the case of the prosecution and, therefore, their evidence cannot be ignored or discarded on account of the fact that they are the interested witnesses or their evidence is with a view to support the case of the prosecution and, hence, their whole evidence cannot be ignored. The conclusion cannot be drawn that accused are falsely implicated in the alleged offence, merely on the ground that the independent witnesses have not been examined. The said issue is well settled by the Hon'ble Supreme Court in the case of Surinder Kumar Khanna (supra). By the said decision, the ratio laid down by the Hon'ble Supreme Court in the case of Jarnail Singh Vs. State of Punjab reported in (2011) 3 SCC 521 is affirmed by the Hon'ble Supreme Court for mere non-
examination of the independent witnesses and hence, the case of the prosecution cannot be discarded. The relevant obervation of the Hon'ble Supreme Court in the case of Kallu Khan Vs. Page 111 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined State of Rajasthan reported in AIR 2022 SC 50, reads thus:-
"(B) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), Ss. 21, 43. Illegal possession of smack. Search and seizure. Plea of accused that seizure of contraband from motorcycle cannot be connected to prove guilt of accused.
Members of patrolling team and witnesses of seizure of contraband from vehicle driven by accused. Recovery of contraband from motorcycle of accused was chance recovery on public road. Accused was unable to show any deficiency in following procedure of search and seizure. Question of ownership of vehicle not relevant. Conviction, proper."
21. In the case of State of Punjab Vs. State of Punjab Vs. Baljinder Singh and another reported in (2019) 10 SCC 473, some what in similar facts of the case, the Hon'ble Supreme Court has considered that the conviction recorded by the Trial Court is on the facts of the case and after examining material and documentary evidence and after considering the arguments in detailed, the Trial Court has rightly passed the impugned judgment and order of conviction and sentence which is restored by the Hon'ble Supreme Court. Considering the evidence available on record and the decisions cited at the Bar, I am of the considered opinion that the present appeals filed by the respective appellants deserve to be dismissed.
Page 112 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined
22. It is worthwhile to refer to and relied upon the decision in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120, the head note of the said judgment reproduced hereinafter:
"A. Constitution of India - Art. 21 - Investigation by an officer who himself is informant / complainant in the case - Held, is not barred under NDPS Act or CrPC - Hence, in a case where informant officer himself is investigator, by that itself it cannot be said that investigation is vitiated on ground of bias or the like factor - Question of bias or prejudice would depend upon facts and circumstances of each case - Thus, on sole ground that the informant himself is investigator in the case, accused is not entitled to acquittal - Matter in this regard has to be decided on case - to - case basis without any universal generalisation having regard to proof of hias and prejudice against accused."
22.1 In the case of Mukesh Singh (supra), the Hon'ble Supreme Court has held and observed in paragraph no.10.3, 12.3 and 13(II) as under:-
10.3 Now let us consider the relevant provisions under the NDPS Act with respect to the procedure to be followed to issue warrant, authorisation of entry, search, seizure and arrest without warrant or authorisation; seizure and arrest in public place; entry; stop and search conveyance and the conditions under which search of persons shall be conducted. The relevant provisions are Sections 41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 57, 57A, which are as under:
41. Power to issue warrant and authorisation. (l) A Page 113 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.
Page 114 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub- section (2) shall have all the powers of an officer acting under section 42.
42. Power of entry, search, seizure and arrest without warrant or authorisation. (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order 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 narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish Page 115 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to believe that a search warrant or authorisation 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 within seventy-two hours send a copy thereof to his immediate official superior.
43. Power of seizure and arrest in public place. Any officer of any of the departments mentioned in section 42 may
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Page 116 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled 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 authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance 2 [or controlled substance], in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in the conveyance;
(c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon.
50. Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so Page 117 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]
51. Provisions of the code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.
52. Disposal of persons arrested and articles seized.
Page 118 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under warrant issued under subsection (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under sub- section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or article is forwarded under subsection (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.
53. Power to invest officers of certain departments with powers of an officer in-charge of a police station. (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence [or any other department of the Central Government including paramilitary forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.
(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise 3 [or any other department] or any class of such officers with the powers of an officer-incharge of a police station for the Page 119 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined investigation of offences under this Act.
54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily].
55. Police to take charge of articles seized and delivered. An officer - incharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in- charge of the police station.
57. Report of arrest and seizure. Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a Page 120 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined full report of all the particulars of such arrest or seizure to his immediate official superior.
57A. Report of seizure of property of the person arrested by the notified officer. Whenever any officer notified under section 53 makes an arrest or seizure under this Act, and the provisions of Chapter VA apply to any person involved in the case of such arrest or seizure, the officer shall make a report of the illegally acquired properties of such person to the jurisdictional competent authority within ninety days of the arrest or seizure.
10.3.1 Section 67 of the NDPS Act authorises/permits any officer referred to in section 42 to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the NDPS Act or any rule or order made thereunder, during the course of any enquiry. Section 68 of the NDPS Act provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to the commission of any offence.
10.3.2 From the aforesaid scheme and provisions of the NDPS Act, it appears that the NDPS Act is a complete Code in itself. Section 41(1) authorises a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act, or for the search, whether by day or by night......Sub- section 2 of Section 41 authorises any such officer of gazetted rank of the Departments of Central Excise...... as is empowered in this behalf by general or special order by the Central Government, or any such officer of the Revenue.......police or any other department of a State Government as is empowered in this behalf by general or special order, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under the NDPS Act, authorising any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, Page 121 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.
10.3.3 As per Section 42, any officer of the Department of Central Excise.... as is empowered in this behalf by general or special order by the Central Government or any such officer.....of the revenue, drugs control...police or any other department of a State Government as is empowered in this behalf by general or special order 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 narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the NDPS Act has been committed, enter into and search any such building, conveyance or place; in case of resistance, break open any door and remove any obstacle to such entry; seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act.
10.3.4 As per sub-section 2 of Section 42, such an officer has to send a copy of the information taken down in writing under sub-section 1 or his grounds for belief, to his immediate official superior within 72 hours.
10.3.5 There are inbuilt safeguards provided under the NDPS Act itself, such as, Sections 50 and 52. Section 50 of the NDPS Act provides that when any officer duly authorised under section 42 is about to search any person under the provisions of section 41, 42 or 43, he shall inform the person to be searched in the presence of a Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such person Page 122 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined so desires, he shall take such person without unnecessary delay to the nearest Gazetted Officer as mentioned in sub- section 1 of Section 50. As per sub-section 5 of Section 50, when an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. Subsection 6 of Section 50 provides that after a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
10.3.6 Section 52 of the NDPS Act mandates that any officer arresting a person under Sections 41, 42, 43 or 44 to inform the person arrested of the grounds for such arrest. Sub-section 2 of Section 52 further provides that every person arrested and article seized under warrant issued under sub-section 1 of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. As per sub-section 3 of Section 52, every person arrested and article seized under sub-section 2 of Section 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station, or the officer empowered under section 53. That thereafter the investigation is to be conducted by the officer in charge of a police station.
10.3.7 As per Section 51 of the NDPS Act, the provisions of the Cr.P.C. shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Therefore, up to Section 52, the powers are vested with the officers duly authorised under Sections 41, 42, or 43 and thereafter so far as the investigation is concerned, it is to be conducted by an officer in charge of a police station.
Page 123 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 10.3.8 Section 53 of the NDPS Act provides that the Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act. Sub-section 2 of Section 53 further provides that the State Government, may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act. Therefore, other persons authorised by the Central Government or the State Government can be the officer in charge of a police station for the investigation of the offences. Section 53 does not speak that all those officers to be authorised to exercise the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act shall be other than those officers authorised under Sections 41, 42, 43, and 44 of the NDPS Act. It appears that the legislature in its wisdom has never thought that the officers authorised to exercise the powers under Sections 41, 42, 43 and 44 cannot be the officer in charge of a police station for the investigation of the offences under the NDPS Act.
10.4 Investigation includes even search and seizure. As the investigation is to be carried out by the officer in charge of a police station and none other and therefore purposely Section 53 authorises the Central Government or the State Government, as the case may be, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act. Section 42 confers power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 including any such officer of the revenue, drugs control, excise, police or any other department of a State Government or the Central Government, as the case may be, and as observed hereinabove, Section 53 authorises the Central Government to invest any officer of Page 124 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government....or any class of such officers with the powers of an officer in charge of a police station for the investigation. Similar powers are with the State Government. The only change in Sections 42 and 53 is that in Section 42 the word police is there, however in Section 53 the word police is not there. There is an obvious reason as for police such requirement is not warranted as he always can be the officer in charge of a police station as per the definition of an officer in charge of a police station as defined under the Cr. P.C. 10.5 Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.
12.3 As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal.
13(II) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that Page 125 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled."
23. Though the panch witnesses have declared hostile and have not supported the case of the prosecution, but merely declaring the witnesses as hostile their evidence is required to be closed scrutiny and it cannot be brushed aside.
23.1 PW-29 Sandeep S. Modi was on duty as P.S.O. at ATS Police Station, in the night of 14/15.04.2016 the first informant, PW-39 gave him the written complaint, the case papers and also recovered muddamal on the basis of which he registered the offence at Cr. Reg. No. III-02/2016 for offences under Section 25- A of Act and Section 120B of the Indian Penal Code. On the next day he handed over the muddamal pavti to the investigating officer and the possession of muddamal was handed over to PW-
34 Shri M. A. Sumra, P.S.I. Page 126 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 23.2 PW-30, Jayantilal B. Ghoghra, was working as P.S.O. on 14.04.2016 at about 14.50 hours the PW-39 came and made an entry of leaving for raid; later he received a telephonic verdhi for the requirement of an F.S.L. officer on the spot which he forwarded accordingly.
23.3 PW-31 Ranjitsinh S. Rathod is the police constable who had received the remnant samples and the final analysis report from the F.S.L. and handed over it to P.I., M. H. Thaker.
23.4 PW-32 Pradeepsinh D. Vaghela is the police constable who had gone to deliver the sample parcels for analysis to F.S.L., Gandhinagar.
23.5 PW-33 Amraji was working as writer on 06.06.2016 he received the remnant samples from PW-31 and kept it in the locker in ATS Police Station.
23.6 PW-34 Mohammad S. Sumra, was working as Writer on Page 127 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined 15.04.2016 he received the recovered muddamal from PW-29 and handed over the samples to PW-32, Pradeepsinh, for taking them to F.S.L., Gandhinagar and made entries in the relevant register accordingly.
23.7 PW-35 Praveensinh G. Parmar is one of the driver of the police vehicles which were used by the raiding party to approach the raiding spot. He has just drove his vehicle to the spot and then kept sitting in the vehicle hence, he did not know about the procedures done at the spot.
23.8 PW-38, R. K. Solanki, Police Inspector, ATS had arranged for the two panchas and then accompanied the raiding team;
whereas PW-39, V. R. Malhotra, Police Inspector, ATS is the official who prepared the raiding team and raided the spot being in-charge of the team and finally lodged the F.I.R. at ATS Police Station. Their depositions have been recorded vide Exhibit 77 and 79. In their examination-in-chief they have narrated the prosecution story as it is described in para-2 of this judgment.
PW-39 further verified all the documentary evidence on record Page 128 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined and they were accordingly exhibited. PW-39 was also shown the muddamal, viz. the remnant sample boxes which he identified and the panch slips and F.S.L. slips were also exhibited. The entire consignment of the recovered contraband marked as Article No.1, i.e. the fifty-five bags (each weighing twenty-five kg.
approx.) were also produced before the Court which were further identified by PW-39. All the fifty-five bags were in sealed condition and from two of such bags panch slips were plucked out in which PW-39 identified the signatures of the panchas and of himself; the panch slips were accordingly exhibited.
23.9 PW-41, Manishkumar H. Thaker, in his deposition before the Court has stated that on 15.04.2016 he received the investigation of the offence from the P.S.O., ATS Police Station.
That after taking in to his hands the investigation he recorded the statements under section 161 of CrPC of all the members of the raiding team including the first informant and also that of the labour/employees present in the shed of accused Narendra Kacha at the time of the raid. The truck driver of the truck in which the recovered contraband is stated to have been Page 129 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined transported from Solapur, Maharashtra to the shed in question in Ahmedabad was produced before the Magistrate and his statement was recorded under section 164 of CrPC. He has further deposed that he has recorded the statements of all other witnesses of the case including the persons who arranged for the tickets for the accused persons; who arranged for the SIM cards;
who transferred the cash from Bharuch to Mumbai; employees and officers of Avon Life Sciences Ltd, Solapur, Maharashtra and various other witnesses. PW-41, finding sufficient evidence on record filed the charge-sheet and first supplementary charge-
sheet against the accused persons. The witness further testified about the documentary evidence collected by him during investigation and verified the documents included in the documentary list and the documents were thus exhibited accordingly. The witness further testified the statements u/s 161 CrPC of those prosecution witnesses who did not support the case of the prosecution in their on oath depositions in the Court.
23.10 As PW-41, M. H. Thaker, was promoted further investigation of the offence was transferred to PW-42, M. C. Nayak, Police Inspector, ATS. PW-42 has done investigation with Page 130 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined respect to accused Kishoresinh Rathod and Bharatsinh Kathiya.
After recording the statements of the relevant witnesses and upon completion of the investigation finding sufficient evidence on record he submitted second supplementary charge-sheet in the case against these two accused.
The witnesses have been cross-examined at length by all the defence counsel but the merits and demerits of these cross-
examinations shall be discussed in the later part of the judgment while appreciating the entire evidence of the case.
24. The relevant observations of the Trial Court reads as under:-
"Now, taking into account the submissions of the contesting advocates for both the sides, the object of the legislation and the facts and circumstances of the present case we go for deciding the quantum of sentence required to be imposed on the present convicts.
With the help of entire evidence on record the prosecution has proved its case beyond reasonable doubt against the convicts. It has been proved that all the convicts entered in to this illegal trade of Controlled Substance voluntarily and for fulfilling their greed of money. The defence also could not show any extenuating circumstances which could lessen the seriousness of the offence committed by the convicts. The convicts were young, hale and hearty and Page 131 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined were even earning bread and butter for their family but they opted for this illegal trade in greed of easy money.
It has also been proved that the quantity of Ephedrine recovered in this case is more than 1300 ( thirteen hundred) kg. which is stated to have a market value of more than two hundred and fifty crores. We can not say that the quantity of the contraband does not have any bearing on the quantum of sentence because the Act itself has been amended introducing higher sentence for higher quantity and lesser sentence for lesser quantity of Narcotic Drugs and Psychotropic Substances and in a manner it is also reasonable to apply the same principle while passing sentence for controlled substances. Although for controlled substances no such categorization of 'small' and 'commercial' quantity has been given but in any case the quantity which is recovered in this case can be said to be a commercial quantity which is 1364 kg. valuing Rs. 2,72,84,00,000/- and this fact, in my considered opinion, has a direct and strong bearing on the quantum of sentence required to be imposed on the convicts.
Finally, the intent and object of the legislature must be borne in mind. The offence under the NDPS Act are the offence against the society at large; the drug trafficking is a menace to a healthy society; these offence affects especially the younger ones and gives a deep impact on the overall progress of the nation."
25. In view of the evidence on record, it is clearly found that the Trial Court has minutely examined the evidence and has properly appreciated the evidence on record and also not committed any error of fact and law in convicting the accused for the charges levelled against them.
Page 132 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined
26. On perusal of the impugned judgment and order, it clearly transpires that the Trial Court has not committed any error of fact and law in appreciating the evidence on record and in convicting the accused from the charges levelled against them.
Even on reappreciation of the evidence, it clearly transpires that the prosecution has successfully proved the charge levelled against the accused beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeals are liable to be dismissed.
27. In view of the above, the present appeals fail. The appeals are dismissed. The impugned judgment and order passed by the Trial Court is hereby confirmed. If any of the accused are on bail, they shall surrender to the concerned jail authority forthwith.
Record and proceedings of the case be sent back to the concerned Trial Court forthwith. All pending applications, if any, are also hereby dismissed.
(HEMANT M. PRACHCHHAK,J) FURTHER ORDER
1. On 06.08.2023, after pronouncement of the judgment, the Page 133 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined learned counsel appearing for the respective appellants have requested the Court for hearing and, therefore, the Court has passed the following order.
"The learned counsels appearing for the respective appellants have jointly come to the consensus and made a request before the Court that, as all the appellants accused have undergone almost sentence of 7 years and more in custody, let the conviction be confirmed and the period already undergone in custody be taken into consideration as undergone.
Let the matters be placed for further hearing on 08.09.2023."
2. Though judgment was pronounced on 06.09.2023, today all these criminal appeals along with criminal misc. applications are listed in view of the request made by the learned counsel appearing for the appellants for reducing the quantum of sentence.
3. In support of their submissions, learned counsel appearing for the appellants have relied upon and referred to the observations made by the Hon'ble Apex Court in following decisions:-
(1) In the case of S K Sakkar alias Mannan vs. State of Page 134 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined West Bengal reported in (2021) 4 SCC 483 the Hon'ble Apex Court in paragraph No. 11 has observed as under:-
"11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs. 50,000/ was prescribed but there was no minimum mandatory sentence. The Legislature had in its wisdom left it to the judicious discretion of a court to award the minimum sentence albeit guided by the well known principles on the proportionality of sentence. Taking into consideration the peculiar facts and circumstances of this case, it appears to us that the ends of justice would be adequately met if the appellant's sentence is reduced to the extent of the period he has already undergone. We order accordingly."
(2) In the case of Budhiyarin Bal vs. State of Chattisgarh reported in 2022 SCC Online SC 992 the Hon'ble Apex Court in paragraph nos. 17 and 19 observed as under:-
"17. We are of the considered view that the offences under the NDPS Act are very serious in nature and against the society at large and no discretion is to be exercised in favour of such accused who are indulged in such offences under the Act. It is a menace to the society, no leniency should be shown to the accused persons who are found guilty under the NDPS Act. But while upholding the same, this Court cannot be oblivious of the other facts and circumstances as projected in the present case that the old illiterate lady from rural background, who was senior citizen at the time of alleged incident, was residing in that house along with her husband and two grown up children who may be into illegal trade but that the prosecution failed to examine and taking note of the procedural compliance as contemplated under Sections 42, 50 and 55 of the NDPS Act, held the appellant guilty for the reason that she was residing in that house but at the same time, this fact was completely ignored that the other coaccused were also residing in the same house and what was their trade, and Page 135 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined who were those persons who were involved into the illegal trade providing supplies of psychotropic substances, prosecution has never cared to examine.
18. We are not going to examine the question any further but taking in totality of the matter and the background facts which have come on record that she was an illiterate senior citizen on the date of the incident, i.e., 15 th January 2011, having no criminal record, and was from the rural background, completely unknown to the law and unaware of what was happening surrounding her, all these incidental facts have not been considered by the learned trial Court while awarding sentence to the appellant.
19. In the given facts and circumstances, while upholding conviction of the appellant, and considering the old age of the accused appellant, who is a poor illiterate lady completely unaware of the consequences, we consider it appropriate that the sentence of the accused appellant be reduced to 12 years' rigorous imprisonment and a fine of Rs. 1 lakh and in default, to further undergo rigorous imprisonment of six months which shall meet the ends of justice. Ordered accordingly."
(3) In the case of Issak Nabab Shah vs. State of Maharashtra reported in AIR 2021 SC 832, the Hon'ble Apex Court in paragraph Nos. 3 to 5 observed as under:-
"3. Learned Advocate appearing on behalf of the appellant has submitted that the appellant was found to be in possession of 6.300 kilogram of Ganja - Narcotic Substance, which is above the small quantity and below commercial quantity. It is submitted that under the NDPS Act, 20 kilogram of Ganja is considered to be commercial quantity and the punishment for commercial quantity is 10 years rigorous imprisonment and above. It is submitted that however for the quantity between small quantity and commercial quantity, the punishment is up to 10 years Page 136 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined rigorous imprisonment. 3.1 It is submitted that the appellant has already undergone six years rigorous imprisonment out of ten years rigorous imprisonment imposed by the learned trial court and confirmed by the High Court. Therefore, it is prayed to modify the sentence imposed by the learned trial Court, confirmed by the High Court, to the sentence already undergone, considering the fact that at the relevant time the appellant was aged 2425 years of age and he has learned a lesson and that there was no antecedents and is married and having children and the family depend upon him.
4. Learned Advocate appearing on behalf of the respondent State has submitted that the appellantaccused was heard by the learned trial Court on sentence and after considering the aggravating factors and that the appellant has been convicted for the offence under the NDPS Act, maximum punishment has been imposed by the learned trial Court which has been confirmed by the High Court. Therefore, it is prayed not to interfere with the punishment imposed by the learned trial Court, confirmed by the High Court.
5. Having heard the learned Advocates appearing for the respective parties and in the facts and circumstances of the case, more particularly when the quantity/Ganja recovered from the appellant was 6.300 kilogram, which is between small quantity and commercial quantity and considering the fact that the maximum punishment for such offence is 10 years rigorous imprisonment, out of which the appellant has already undergone six years rigorous imprisonment, we allow the present appeal in part and modify the impugned judgment and order passed by the learned trial Court, confirmed by the High Court, to the extent of imposing the sentence of six years rigorous imprisonment in place of ten years rigorous imprisonment as imposed by the learned trial Court and confirmed by the High Court. Rest of the judgment and order passed by the learned trial Court, confirmed by the High Court, is hereby confirmed."
4. Learned counsel appearing for the appellants have Page 137 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined submitted that against all the accused persons there is no any antecedents is reported. Learned counsel further have submitted that if any of the accused persons have not paid the amount of fine, they will pay the same before the concerned Court. Learned counsel for the appellants have submitted that the appellants have completed more than 60% sentence imposed by the Trial Court and therefore, they are requested to reduce the quantum of sentence.
5. Learned Additional Public Prosecutor for the respondent -
State of Gujarat has produced on record the police report of all the accused persons. Learned Additional Public Prosecutor further submitted that considering the seriousness of offence and considering the allegations made against all the accused persons and since this Court, once come to the conclusion that the appellants are held guilty and confirmed the judgment and order of conviction and sentence passed by the Trial Court, this Court may not reduce the quantum of sentence, as requested by learned counsel for the appellants and the request made by learned counsel for the appellants may not be considered. The Page 138 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined report produced by the learned Additional Public Prosecutor are taken on record.
6. As per the report submitted by learned Additional Public Prosecutor, the accused namely Narendrabhai Dhirajlal Kacha has served sentence of 7 years 4 months and 22 days including period of set-off. The accused Manoj Tejraj Jain has served sentence of 7 years 2 months and 3 days including period of set-
off. The accused Kishorsinh Bhavsinh Rathod has served sentence of 6 years 7 months and 28 days including period of set-off. Further, it appears that on similar set of fact, one other complaint is also filed before the Thane Police Station against the accused persons.
7. At this stage, it is appropriate to take into account Section 25A of the Narcotic Drugs and Psychotropic Substances Act, 1985, which reads as under:-
"25A. Punishment for contravention of orders made under section 9A.If any person contravenes an order made under section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees: Provided that the court may, for reasons to be Page 139 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined recorded in the judgment, impose a fine exceeding one lakh rupees."
8. In view of the above, it is clear that since there is no provision with regard to minimum sentence, Trial Court has imposed maximum sentence after considering the history and role of each of the accused persons. Further, if any person contravenes an order made under Section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and also be liable to fine which may extend to one lakh rupees.
9. The judgments which are referred to and relied upon by the learned counsel for the appellants are on respective facts of that particular cases. In present case, the allegations against all the accused persons are that they are in connivance with each other conspired to transport the contraband articles of almost 1400 k.g. of which market price is Rs.2,92,00,000/- (Rupees Two Crores Ninety Two Lacs). Further, the case is pending before the concerned Trial Court at Maharashtra, which is directly bearing upon the findings recorded by this Court. Therefore, this Court is Page 140 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023 NEUTRAL CITATION R/CR.A/2328/2019 JUDGMENT DATED: 08/09/2023 undefined of the opinion that once this Court pronounced the judgment on 06.09.2023 confirming the judgment and order conviction and sentence recorded by the Trial Court, there is no need to alter the quantum of sentence awarded by the Trial Court. Hence, no interference is called for in the impugned judgment and order of Trial Court. The request made on behalf of the learned counsel for the appellants to reduce the quantum of sentence is hereby rejected.
Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL/SURESH SOLANKI Page 141 of 141 Downloaded on : Sat Sep 16 16:28:05 IST 2023