Gujarat High Court
Prakash Krushna Bavlekar vs State Of Gujarat & ... on 13 August, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.A/188/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 188 of 2012
With
CRIMINAL APPEAL NO. 343 of 2012
With
CRIMINAL APPEAL NO. 438 of 2012
With
CRIMINAL APPEAL NO. 957 of 2012
With
CRIMINAL MISC.APPLICATION NO. 11425 of 2015
In CRIMINAL APPEAL NO. 957 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PRAKASH KRUSHNA BAVLEKAR....Appellant(s)
Versus
STATE OF GUJARAT & 1....Opponent(s)/Respondent(s)
==========================================================
Appearance:
Criminal Appeal no.188 of 2012
MR SUNIL MEHTA, ADVOCATE with MS P J.JOSHI, ADVOCATE for the
Appellant(s) No. 1
MR HRIDAY BUCH, ADVOCATE for the Opponent(s)/Respondent(s) No. 2
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1
Page 1 of 72
HC-NIC Page 1 of 72 Created On Fri Aug 14 13:24:33 IST 2015
R/CR.A/188/2012 CAV JUDGMENT
Criminal Appeal no.343 of 2012
MR LR PATHAN, ADVOCATE for the Appellant(s) No. 1
MR HRIDAY BUCH, ADVOCATE for the Opponent(s)/Respondent(s) No. 2
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1
Criminal Appeal no.438 of 2012
MR PRATIK BAROT, ADVOCATE for the Appellant(s) No. 1
MR HRIDAY BUCH, ADVOCATE for the Opponent(s)/Respondent(s) No. 2
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1
Criminal Appeal no.957 of 2012
MS SADHANA SAGAR, ADVOCATE for the Appellant(s) No. 1
MR HRIDAY BUCH, ADVOCATE for the Opponent(s)/Respondent(s) No. 2
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 13/08/2015
CAV JUDGMENT
All these appeals are arising out of a common impugned judgment and order of conviction dated 28.12.2011 in Sessions Case no.414 of 2006 by Addl.Sessions Judge of City Sessions Court no.12, Ahmedabad City. Chargesheet was filed against in all six accused, out of which accused no.2 Manoj Arjanbhai Gohil expired after framing the charge, but before completion of trial, and therefore, proceedings against him were abated. Initially, charge was framed on 18.1.2007 against accused nos.1 to 5, disclosing accused no.6 as absconder and, therafter, accused no.2 died on 27.3.2007. Thereafter, pending trial, when accused no.6 was arrested, additional charge was framed against him on 15.2.2010. For the sake of brevity and to avoid confusion with reference to identity of Page 2 of 72 HC-NIC Page 2 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT appellants - accused, they are referred in this judgment as per their original identification before the trial Court in sessions case. However, their details and conviction can be summarised as under:-
Accused no. Appeal Conviction Imprisonment Fine In before the no. under default Sessions Sections Court Accused no.1 Cr.A. 22 & 23 10 years Rs.1 S.I for
- Subhashsingh no. of NDPS R.I Lac 2 years Samshersingh 438 Act.
of
2012
Accused no.2 Sessions Case is abated because of his
- Manoj death.
Gohil
Accused no.3 Cr.A. 22 & 23 10 years Rs.1 S.I for
- Jai no. of NDPS R.I Lac 2 years
Babulal 343 Act.
Rathod of
2012
Accused no.4 Cr.A. 22 & 23 10 years Rs.1 S.I for
- Suresh no. of NDPS R.I Lac 2 years
Babulal 957 Act.
Sanchla of
2012
Accused no.5 She has not preferred appeal though
- Smt convicted and awarded same imprisonment.
Kamaljeet
Kaur
Accused no.6 Cr.A. 22 & 23 10 years Rs.1 S.I for
- Prakash no. of NDPS R.I Lac 2 years
Krushna 188 Act.
Bavlekar of
2012
2. However, the Sessions Court has not awarded any separate sentence u/ss.28 and 29 of the NDPS Act as well as u/s.120B of the IPC with a Page 3 of 72 HC-NIC Page 3 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT direction that all the sentences shall run concurrently. Though all the accused have been tried together and convicted by common order, by equal punishment, since their involvement in commission of main crime is based upon circumstantial evidence and atleast some of the accused are joined as accused and convicted because of conspiracy to commit the main offence, so far as their activities and nature of involvement in commission of main crime is concerned, it has some different story since all of them have probably played a limited part to complete the full conspiracy, and therefore, all of them have filed separate appeals and for all of them separate arguments are advanced though their defence is common to the effect that there was no proof of conspiracy, there is no evidence to prove the complete chain of conspiracy, there is no evidence about their actual involvement in commission of alleged crime, no contraband material was recovered from them and in general, there is no compliance of statutory provisions of the Act, which vitiates the entire investigation and thereby trial. Therefore, the role of each accused - appellant is scrutinized when they have played different role, limited to certain activities, but if we gather all such evidence, prima facie it seems that they all have played though limited, but specific role in commission Page 4 of 72 HC-NIC Page 4 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT of main offence, and therefore, if they are not restrained from committing such offence, then, they would certainly commit some major offence.
In short, role of each of them does not seem to be genuine or without any intention or motive to commit such a crime. If we consider the overall arguments of all the advocates, it seems that now this is a different type of modus operandi by the criminals in performing piecemeal activity by different persons so as to prove that none of them have committed the offence since there is no evidence regarding performance of full offence by any one of them. In view of such background, we have to scrutinize the evidence on record to ascertain that whether there is actual non- compliance of statutory provision or lack of sufficient evidence to confirm the guilt of the appellants. However, for the purpose, though some of the evidence is co-related and concerned for more than one appeal, we have to scrutinize the evidence and defence of each accused/appellant separately.
Criminal Appeal no.438 of 2012 by Subhashsingh Samshersingh
3. Accused no.1 was caught by the raiding party based upon intelligence report received by them on 25.7.2006 that a truck bearing no.JK-02L-0427 would be parked near Adalaj Cross Roads near Gandhinagar at around 23.00 hours on 27.7.2006 Page 5 of 72 HC-NIC Page 5 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT carrying around 250 Kgs. Of Hashish concealed in it. Such incidence is noted by I.O, D.R.I., Mumbai, namely, Deepak Jyala (Zala) on the same day at about 10 p.m., which is produced and proved on record on Exh.202. Thus, when there is specific intelligence report with registration number of truck and place where it would be parked with contraband material, after following internal process, the department of revenue intelligence has sent their I.O with panch witnesses at such place i.e. Adalaj cross roads and when they found such truck parked on road, they inquired about the driver and asked him for carrying search of truck to ascertain that whether any contraband material or any prohibited or illegal material is being transported in such truck or not. Thereupon, accused no.1 has shown that where 250 Kgs. Hashish was concealed in the truck and thereupon he was taken to the office of the D.R.I at Paldi, Ahmedabad since it was raining at the relevant time, where necessary panchnama was drawn. Therefore, so far as involvement of respondent no.1 is concerned, there is a positive evidence against him when huge quantity of contraband material was found from the truck which was in his control and which he was driving from one place to another with some normal goods, but with contraband material in the same truck in concealed area behind his cabin.
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4. Relevant evidence in that regard is in form of Exh.202, secret information report; Exh.15, statement of the accused under the NDPS Act, Exh.101, seizure panchnama and Exh.210, evidence of Indrakishan Purohit, panch witness. Before proceeding further to discuss the evidence referred herein above, if we consider the submissions made by learned advocate Mr.Pratik Barot for the accused no.1, he has limited submissions to be made for the simple reason that appellant no.1 - accused was found with huge quantity of contraband material, and therefore, the sum and substance of the submissions and defence by the accused no.1 is to the limited extent that there is non-compliance of statutory provision of the NDPS Act, and more particularly, Sections 42 and 50 of the NDPS Act and that prosecution has failed to examine Vinaykumar, who was termed as informant and to disclose the actual time of receipt of such information. So far as contraband material recovered from the truck is concerned, it is submitted that there is no positive evidence to link the appellant with the material and his statement alone cannot be treated as a conclusive proof without any independent corroborating evidence beyond reasonable doubt to confirm the posssesion of contraband material by the appellant - accused.
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5. To ascertain such issues, we have to examine the above-referred documentary evidence as well as supporting oral evidence.
6. At Exh.202, there is an intelligence note dated 25.7.2006, details of which are disclosed herein above, wherein, practically, two secret intelligence notes are disclosed, (1) regarding transportation of contraband material in the truck with date, time and place of presence of such truck near Gandhinagar and (2)name of the person who has to take delivery of such contraband material from the truck. Such name is disclosed as Manoj being accused no.2 with specific information that he has checked in Hotel Yatri in Sector 16 of Gandhinagar and is going to receive the contraband material from the truck driver. Such intelligence note was submitted by Intelligence Officer Mr.Deepak Jyala to Sr.Intelligence Officer of D.R.I., Mumbai, who in turn endorsed it at 10.05 p.m. and forwarded it to his senior i.e. Dy.Director of D.R.I., who has at 10.15 p.m. endorsed and directed the Intelligence Officer to proceed to Ahmedabad and to take necessary action in the matter. Such endorsement was forwarded to Sr.Intelligence Officer Mr.Amin. Therefore, though several submissions are made against genuineness of such intelligence note, the fact remains that there is a specific intelligence note on record, which is Page 8 of 72 HC-NIC Page 8 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT generated by investigating officer and forwarded to Sr.Officer and in turn the Sr.Officer has directed to proceed to Ahmedabad. Thereby, it cannot be said that there is no proper compliance of provision of Section 42 of the NDPS Act,. The detailed history of recording such intelligence note till search and arrest of accused no.1 is well described in oral evidence of Pws-1, 2, 7, 8, 9, 10, 19 and 20. Therefore, if we peruse the evidence of such witnesses, it becomes clear that there is a perfect link of investigation right from the intelligence note till the arrest of the appellant and, thereafter, he was charged and tried as aforesaid.
6.1 PW-1 at Exh.25 is Upendra Prabhudas Rathod, Inspector of Central Excise at Ahmedabad. He has deposed before Court that their office has received the intelligence note as per Exh.202 at their Ahmedabad office, and therefore, since he is authorized to lodge the complaint he has lodged the FIR of such incident and advised that his office has managed to seize the truck and to bring it to their office at Paldi, but he was not present when the truck was seized. Therefore, his evidence is material for proving lodging of FIR only so far as accused no.1 is concerned.
7. Whereas, PW-2 at Exh.99 is also Inspector of Central Excise, namely, Shyam Sundaram Shekharan Page 9 of 72 HC-NIC Page 9 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT Warrier. It is his case that on 27.7.2006, he was called at about 8 p.m. in his office near Jain Merchant Society in Rupam Bungalow at Paldi, Ahmedabad by his Dy.Director Mr.Prashant Kumar where other staff were present so also the Officers of D.R.I., Mumbai and it was conveyed to him that there is an intelligence note as per Exh.202, and therefore, they have to prepare for raid and search to ascertain such intelligence. For the purpose, two panchas were called upon. However, witness was not aware that who had called them, but he confirms that he with Mr.Tanuj Bisht, I.O., Rakesh Rajani, I.O., Mahesh Solanki, driver and officers of Mumbai, namely, S.A. Amin, I.O., B.Sreedhar, I.O., Deepak Jyala, I.O. and two panch witnesses had started in a Gypsy car towards Adalaj after confirming their personal search to ascertain that none of them are having any objectionable material in their possession. He also confirms that both the panch witnesses have agreed in their presence to be a panch witness and to accompany them as panch. He further states that near Adalaj cross-roads, after searching for a long time, they were able to find out a parked truck having registration no.JK-02L-0427 about which intelligence note had indicated, and since it was raining heavily at that time, the truck was closed from all sides and there was light inside the truck. Therefore, Page 10 of 72 HC-NIC Page 10 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT they have knocked the door of the truck. Thereupon, the truck was opened from inside by one Sardarji and upon inquiry, he has disclosed his identity as Subhashsingh i.e. accused no.1. Thereafter, witness has disclosed his own identity to accused no.1 and shown him a search warrant and also disclosed the identity of other officers and obtained signature of accused no.1 on such search warrant in presence of both the panch witnesses and in confirmation thereof, search warrant was signed by both the panchas also. During search of the vehicle, they found one cleaner, namely, Rafik in the truck and key of the truck was in the truck itself, but the engine of the truck was off i.e. it was a parked vehicle. Thereupon, they have inquired about the details of the driver and goods or other material being stored in the truck, when accused no.1 has disclosed his name as Subhashsingh and he has shown bundles of Hashish stored in the cavity within the truck created for hiding such material. At that time, as recorded herein above, it was raining and being cross-road on highway, there was no other facility to record the details of panchnama and other things, the raiding party has thought it fit to get the truck shifted to their office at Paldi and for the purpose, I.O. Rakesh Rajani has travelled with the truck driver in his truck and started for their office Page 11 of 72 HC-NIC Page 11 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT followed by other officers in Gypsy after reaching the office, but before executing the actual search of the truck, they have conveyed the provisions of Section 50 of the NDPS Act to the accused no.1 and explained him that if he so desires, such search can be conducted in presence of Executive Magistrate. However, accused no.1 has denied to avail any such option and, thereafter, on inquiry, accused no.1 has disclosed that the cavity is created behind the driver's seat and attached to ceiling. Whereas, on opening such cavity, the raiding party has found one locked compartment with some clothes etc. Thereupon, accused no.1 has removed his clothes and provided key from his possession to the raiding party to open the locked compartment within such cavity. Thereupon, 2 - 3 bundles were removed from the cavity and, thereafter, on inquiry, accused no.1 has explained that a panel behind his seat, fixed by nut-bolt can be opened, and therefore, such partition was opened by opening the nut-bolt and it was found that there was a single big cavity wherein in all 73 bundles were stored, amongst which 72 packets each, containing seven small packets within it; whereas, 73rd packet was containing only three packets in it. Thereby, in all there was 507 packets and they were sealed in brown coloured packing with a label of cappuccino chocolates Page 12 of 72 HC-NIC Page 12 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT with its wrapper; whereas on opening one of such packet, 3 to 4 plastic layers were found inside and on opening the packet fully, there was brown coloured material in rectangle shape and on its preliminary inspection, it was identified as Hashish. Thereupon, on inquiry, accused no.1 has confirmed that all 507 packets are containing the same material i.e. Hashish. Thereby, all the packets were assigned numbers and it was found that total weight of all such material is 278.180 Kgs. All such details were recorded in panchnama and it was bifurcated into 13 lots and out of each lot, 5 to 10 gms. of substance was taken for sample and after preparing homogeneous mixture of such collection, three samples each of 70 gm. were collected and numbered as 1,2 and 3. Similar process was followed for all 13 lots and total 30 samples were collected and seals were applied on each such sample. He further narrates the activity of sending it for examination, but since it is not disputed, such story and history need not be reproduced. Whereas on inspecting the other goods in the truck, it was found that there were several drums of phenyl on which there was endorsement for transportation from Jammu to Bombay with name of the manufacturer as Sood Fines. Since it is also chemical liquid material, sample of 50 ml. each was collected from each barrel; whereas, there were several other 15 Page 13 of 72 HC-NIC Page 13 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT drums or barrel having Rosene material, which was sold in nature, and therefore, two random samples were collected from such barrel. So far as recovery of key and other small materials like RC book, insurance policy, bills of toll-tax and other papers are concerned, with currency notes of Rs.500/-, a separate panchnama was made and such articles were returned to accused no.1 - Subhashsingh. However, a Kirpan which was recovered from the truck was taken in custody as a muddamal after noting in annexure of recovered material. Thereupon, again accused no.1 was conveyed about his right to proceed u/s.50 for his search and he was searched only when he refused to exercise such right. During his search, I.O. has found a personal diary of telephone numbers, slip of making phone from STD booth. All such materials were listed in different annexures with the panchnama and all such documents were exhibited on record between Exhs.100 to 107. If we peruse the cross- examination of this witness, which is jointly for accused nos.1 and 3 by their learned advocate Mr.J.M.Pathan before the trial Court, an attempt was made to prove that witness has not followed the practice and procedure of such raid within his office and that he is not much aware about the geography and topography of the place of search and raid being Adalaj cross-roads.
Page 14 of 72HC-NIC Page 14 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT However, though several questions are put for such issues, the accused could not rebut the evidence of witness in any manner whatsoever and could not prove anything in his own favour so as to conclude that he is innocent. An attempt was made to instigate or provoke the witness that since these offences are of serious nature, there is possibility of danger of life, and therefore, he should have taken security in the form of police force with him. However, the witness though agrees that the nature of offence is serious, confirms that he does not find any need to take help of police force or security or to keep weapon available with them to protect themselves. An attempt was also made to prove that sample was not proper or that witness was not aware about the panch witness. An attempt was also made to prove that accused has no reason or he has neither met or nor seen any other accused. However, accused could not prove anything in his favour. The Court has put some question on its own and witness has explained it property, but thereupon, he was allowed to be cross-examined by accused no.1. However, even after such further examination, accused no.1 could not prove anything in his favour or could not rebut the evidence of the witness. Thereby, such witness proves that muddamal contraband material was found from the truck, which was not only in Page 15 of 72 HC-NIC Page 15 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT control of the appellant - accused, but it was containing huge quantity of contraband material.
8. PW-7 at Exh.200 is Prashant Kumar Singh, who was Dy.Director (Intelligence) at Ahmedabad at relevant time. He received intimation from Bombay office regarding the intelligence note which is proved at Exh.202, details of which are disclosed herein above. Therefore, after informing his superior, and after receiving information from his superior, he managed the search and raid as disclosed by PW-2 and disclosed herein above. He also narrates the details of preparation of such raid and seizure and narrated his knowledge about the activities carried out by PW-2. He received the report of seizure submitted to him by raiding party. Referring to cross-examination of such witness by accused nos.1 and 2 by their advocate before the trial Court, namely, Shri J.M.Pathan, it was emphasised that the witness has categorically disclosed that when he received the information, the same was "reduced into writing"
by him and thereafter he states that information reduced into writing was in fact typewritten and the typing was done by the witness personally and thereby he confirms that writing was not in his own handwriting. Since such intelligence report is also a typed document with endorsement of concerned officer by their own hand, it is argued by learned advocate Mr.L.R.Pathan for accused Page 16 of 72 HC-NIC Page 16 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT no.1 that the witness has changed his version in deposition by taking a turn, since though once he stated that information was "reduced into writing", he thereafter tried to explain that it was not in his handwriting, but typed by him, and therefore, such information cannot be believed, because it might have been created afterwards. However, it is clear and certain that phrase 'reduced into writing' does not strictly mean that it is in handwriting only, but the broad meaning of the phrase is quite simple that whatever is known or to be disclosed by a person is placed on paper. The phrase simply denotes that the information is now placed on record in black and white i.e. in writing without disclosing the manner and method of writing such information on paper. It is well-known fact that in legal parlance 'reduced to writing', is a term of art that simply means that something, usually evidence of an agreement of some kind, is in written form as opposed to oral. Therefore, the simple meaning or understanding of the phrase 'reduced into writing' is quite simple that the information, which was otherwise in oral communication is now brought into black and white on paper by making it in a form of writing. However, the method and manner or means of writing is nowhere included in such phrase, and therefore, it cannot be said that there is any Page 17 of 72 HC-NIC Page 17 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT material contradiction, ommission or modification in the evidence of the witness when he explains that 'reduced into writing' means that he has not written the information in his own handwriting, but he personally typed the same and signed it. What is material is signature of the person and not the manner of writing. In addition to this issue, though the witness was cross-examined at length by advocate for the accused no.1, there is nothing in his cross-examination, which rebuts the prosecution evidence in any manner whatsoever or proves the accused no.1 as innocent as if he was not involved in the crime at all. Minute details about prosecution and raid may not be that much material when there is neither contradiction, omission nor modification in the evidence by the witness.
9. PW-8 at 205 is Sr.Intelligence Officer Mr.Satish Anand Amin, who has acted pursuant to directions issued by PW-7 being a superior officer, who also confirms the receipt of intelligence note at Exh.202 and discloses the details of search and raid conducted by PW-1. During his cross-examination, the only admission is to the effect that he has not received the intelligence directly, but denies the suggestion that it is not true that he has not reduced it into writing when he has endorsed it, on receiving it through superior officer, by his Page 18 of 72 HC-NIC Page 18 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT signature. Thereafter, he also confirms that when he received information from other officer, he himself has not reduced it into writing, but he has endorsed it, and therefore, it is certainly the disclosure of information in accordance with law when he received it from higher officer and with their endorsement and when he himself also endorsed it and, thereafter, acted upon such intelligence. Thereby, it is certain that there is nothing in favour of the accused no.1 to prove him innocent and accused no.1 has also failed to rebut the evidence of such witness in any manner whatsoever.
10. PW-9 at Exh.207 - I.O. Deepak Lalsinh Jyala (Zala), who has initiated the original intelligence at Exh.202 with his own signature, and therefore, he proves it. He specifically proves the contents of such intelligence and that he forwarded it to his higher officer, which can be seen from Exh.202. The witness has explained his part in investigation in detail.
11. During cross-examination of such witness jointly by all the accused nos.1 to 6, he refused to disclose the source of information so also the place and time of such source and it is certainly within his power not to disclose such details, as its position pursuant to the provisions of the Section 68 of the NDPS Act. Therefore, when he Page 19 of 72 HC-NIC Page 19 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT was cross-examined at length, wherein he denies to disclose the source of information as well as nature, place and time of such source of information, it cannot be said that only because of such non-disclosure, the evidence of the witnesses cannot be relied upon. Similar is the situation with the understanding of terminology "reduced into writing" because this witness has also signed details of intelligence. It is on a typed paper, and therefore, it cannot be said that he has not placed the information on record in writing. He was also cross-examined at length so far as topography and other minute details at the time of raid and seizure are concerned. However, though he was not aware about such minute fact, it does not help the accused to prove himself innocent because this witness is from D.R.I. Office, Mumbai, and therefore, he may not be much aware about the geography of Ahmedabad. It is otherwise not much material when other witnesses have categorically disclosed the intelligence in detail and proved the same on record.
12. PW-10, Exh.210 is panch witness, namely, Inder Kishan Purohit. He also specifically deposed and supports the investigation and prosecution case and confirms that how they were called upon, then reached place of raid, how vehicle was searched and the details of 72 Page 20 of 72 HC-NIC Page 20 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT bundles of Hashish recovered from the cavity of the cabin of the truck and proves the panchnama at Exh.100 with signature of all concerned. He also deposed in detail about his activity during the search and confirms that the name of the cleaner was Rafik and his signature was also taken. An attempt was made to emphasise that when Rafik is not added as an accused, the driver alone cannot be prosecuted. However, if key of the hidden cavity, which is locked, was provided by the accused no.1 driver and when in his statement u/s.67 of the Act, driver has not confirmed that Rafik is co-owner of the contraband material, there is no reason to prosecute the cleaner of the truck. In any case, if at all accused no.1 thinks that Rafik was also co-accused, then, he should have initiated appropriate proceeding u/s.319 of the Cr.P.C. or should have disclosed it in his statement u/s.313 of the Cr.P.C., but only by such submission at appellate stage, even if we believe that Rafik was also co-accused, it would not give any benefit of acquittal to the accused no.1. There is clear evidence that he was well aware about the search and possession of contraband material in the truck, it is handled by him, and more particularly, when the hidden storage in the truck was controlled by him lock and key. Panch witness was cross-examined at length to certain Page 21 of 72 HC-NIC Page 21 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT extent, but accused could not rebut his evidence in any manner or could not prove his innocence.
13. PW-19, Exh.265 is Scientific Officer of FSL at Gandhinagar, namely, Chand Mohammad Fakirbhai Munsuri. He explained the manner in which muddamal samples were received by them and how it was tested. He also identifies the relevant documents, samples and their report at Exh.78. He has specifically deposed that the samples examined by them were identified as Charas extract and having tetra hydro cannabinol(THC), Cannabinol (CBN) and cannabinoid (CBD). It is his clear statement that the material of such samples received by them for examination is identified as Charas as defined under the NDPS Act. During cross-examination, he has admitted that every packed sample had a different shape of material with different number on pieces and having different weight, and none of the sample was having a single piece of 70 gms. and none of the sample was having substance in a powdered form but it was in pieces. He admits that some of the envelopes were having two pieces. It is also disclosed by him during cross-examination that it is true that percentage of narcotic material can be ascertained by using gaschromatography and though he has used such technique, he has not disclosed it in the report. However, he admits that he has not disclosed the percentage of Page 22 of 72 HC-NIC Page 22 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT Charas in each sample. However, he clarified that it was reported by him that entire sample is Charas and thereby he tried to explain that when entire piece of sample is Charas, then, there is no requirement to consider the presence in percentage. He also admits that if Charas is blended with such other material and if such blended material is tested, then also, there would be a positive test for Charas and in that case, percentage of Charas in such sample is to be ascertained. He also admits that in such cases, nature of other substance needs to be examined and that their laboratory is well equipped for conducting all such tests. With such reference, when it was asked that his report does not disclose the presence of other substance in the sample, the witness has confirmed that since entire piece of sample was Charas, there was no need to examine other substance. Thereby, now, the fact remains that though accused have tried to prove that FSL report is not proper, on the contrary, during cross-examination, it has now been brought on record by the witness that in fact, the entire piece of sample forwarded to them was containing Charas and no other material, and thereby, there was no need to check for presence of other substance in the sample and so also the percentage of Charas in the sample. Thus, accused could not prove anything in their Page 23 of 72 HC-NIC Page 23 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT favour even from such witness so as to conclude that there was no contraband material recovered from him or that material recovered from him was not having pure narcotic drug, and therefore, their submission to consider the quantity as one step down has no force.
14. PW-20 at Exh.266 is another Scientific Officer and Biologist of the same FSL at Gandhinagar, who has tested the sample biologically and confirmed that chemical analysis was done by PW-19 Mr.Mansuri whereas microscopic and botanical test was carried out by her wherein she found that the seized material was cannibis plant having tissues of cannibis plant and there was no other substance and material at all. She was cross-examined to bring on record irregularities in their testing, but accused could not succeed in proving any irregularity in testing of the sample muddamal. She was also asked about some other plants where she admits that morphological report of different part of plant would be different. However, when there is positive evidence by both the witnesses that material tested by them was nothing, but Charas and having no other substance in it, this suggestive cross-examination has no value.
15. During his further statement u/s.313, accused has stated in reply to the question that whether Page 24 of 72 HC-NIC Page 24 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT he wants to say anything more that he was not driver of such truck and that he brought one truck on contract basis from Mumbai with one Rajarani Saheb and one Rafik and he was brought to Custom Office where he was detained and signature on some blank and written papers were taken by threat, coercion and force and driver who brought the truck was allowed to go and that he is not knowing Hindi.
16. If we peruse the seizure panchnama at Exh.101, which is proved by panch witnesses, it becomes clear that when panch witnesses have tried to find out the truck near Adalaj cross- roads, with relevant information, which is discussed herein above, such truck was noticed at about 23.45 hours as parked adjacent to the road along with other trucks and when raiding party, including panchas have reached to such truck, the cabin of the truck was found closed. After noticing presence of such truck at the given place, regarding manner and method of raid and search, in such panchnama, it is categorically disclosed that how accused no.1 had informed about the presence of contraband material in the truck and how officers have performed their duty regarding compliance of provisions of NDPS Act and, thereafter, why truck was taken at the office of the Narcotic Board, confirming the total weight of the contraband material as 278.18 Page 25 of 72 HC-NIC Page 25 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT kgs. Such panchnama is signed by both the panchas and appellant - accused no.1 also on all the pages. The panchnama was having three annexures, which are also signed by all of them, wherein details of other material is disclosed so also the details of all packets recovered from the truck with its weight as there are as many 507 packets of weight between 500 - 600 gms. approximately. The driving license, RC book and other relevant material of the truck was also annexed with such panchnama, which does not leave any doubt about possession and control of the truck so also the contraband material by the appellant - accused no.1. There is also relevant material in the form of statement of Smt. Kamaljit Kaur, widow of Late Shri Harbhajansingh, resident of Jammu u/s.67 of the NDPS Act, which is recorded at Jammu itself by D.R.I on 30.8.2006. Before recording her statements, dated 2.8.2006, 4.8.2006 and 5.8.2006, officers have conveyed her that she is entitled to remain silent and not to disclose anything if she does not want and that such statement can be used against her in such proceeding. Thereafter, when she has agreed to give a statement, the same was recorded in Hindi by S.I.O. of D.R.I., Ahmedabad
- Mr.A.H.Hansotia, Inspector of Customs & Central Excise as well as of Jammu Ms.Daljit Kaur - PW-14 and she has endorsed her true signature on each Page 26 of 72 HC-NIC Page 26 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT page. She has also endorsed on all small corrections in the statement. Therefore, it cannot be said that such statement is not properly recorded and when now said lady being owner of the truck JK-02L-0427 has not challenged her conviction by impugned judgment itself, there is no reason to doubt or discard such statement. Thereby, if we peruse such statement, the truck owner and co-accused with the present appellant has categorically stated that Subhashsingh i.e. present appellant was driver of such truck and he has started for Mumbai on 22.7.2006. She further confirms that initially Subhashsingh was serving as cleaner with her husband, who was driving such truck as an owner, but after the death of her husband, she has engaged Subhashsingh as driver and till then Subhashsingh is managing the truck and nobody else is plying it except him. Such statement of Kamaljit Kaur was reduced into writing by one Daljit Kaur, Inspector of Customs and Central Excise. Therefore, there is no reason to disbelieve or discard such statement. Thereby, now, it is proved on record that present appellant is driver of the truck and he had started from Jammu for Mumbai. He was caught near Ahmedabad with contraband material in his truck.
17. Whereas, similar statement of Subhashsingh is recorded on 28.7.2006 u/s.67 of the NPDS Act in similar manner about disclosing his right to Page 27 of 72 HC-NIC Page 27 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT remain silent or not to say anything and that whatever he disclosed can be considered as evidence against him. Such statement is also recorded in Hindi, which is countersigned by Kamaljit Kaur and signed on all the pages by present appellant also. The perusal of such statement makes it clear that appellant was driving such truck and he was in control of the truck and he was aware about the transportation of muddamal narcotic drug in his truck so also the details of mobile numbers to whom he has to convey to accept the delivery after reaching at particular place. He specifically discloses about hidden compartment in the cabin and storage of muddamal material in such compartment and amount involved in such transaction as well as where to deliver it.
18. Other relevant documentary evidence are in the form of call records and statements of other accused, so also different statement of other accused, which confirms that appellant was the only person, who was holding the truck as driver at the relevant time, and therefore, now, appellant has no option, but to undergo the sentence as awarded since there is no evidence in rebuttal to prove his innocence and thereby practically there is no substance in the appeal. However, learned advocate for the appellant is relying upon following decisions for getting Page 28 of 72 HC-NIC Page 28 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT benefit of doubt and thereby acquittal.
19. (2011)1 SCC 609 between Vijaysinh Chandubha Jadeja v. State of Gujarat, wherein full bench of the Hon'ble Supreme Court has held that failure to inform the suspect about the existence of his right u/s.50 of the Act would cause prejudice to him and render the recovery of the contraband article suspectable and vitiate the conviction. However, while holding so, it is also stated in categorical terms that such would be a situation only if conviction is recorded on the basis of the recovery only and thereby in absence of other corroborating evidence. Whereas, legal dictum is in clear words that proof of compliance of Section 50 is a matter of trial and no absolute formula can be laid down and that it is not necessary that the information required to be given u/s.50 should be in a prescribed form or in writing. Therefore, though the head-note reads that requirement of informing the suspect person of his right u/s.50 and if suspect so desires, search is to be carried out in presence of gazetted officer or a Magistrate are mandatory, it nowhere confirms that how compliance is to be made. On the contrary, it confirms that proof of compliance is a matter of trial and thereby there may be sufficient compliance. In the said set of circumstances and evidence in the present case, when there is categorical disclosure regarding Page 29 of 72 HC-NIC Page 29 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT compliance of provisions of Section 50 of the Act and when there is categorical admission by the appellant that he was being informed about such provision, this decision would not help the appellant to get rid-off the conviction.
20. In AIR 2007 SC 369 between Dilip and Anr. v. State of M.P. wherein the Division Bench of Supreme Court has held that if search and seizure is carried out in violation of the provision of the law, then, conviction of the accused is liable to be set-aside. There cannot be a conceptual dispute on such principle, but as observed by the full bench in case of Vijaysinh Jadeja (supra), which is a latest judgment by larger bench, the proof of compliance is matter of trial and evidence and there cannot be any absolute formula. Therefore, though the case of Dilip (supra) is not being overruled by the full bench, it does not have much bearing on the subject. It is to be noted that decision in Dilip (supra) was not cited before the larger bench.
21. In (2014)5 SCC 345 between State of Rajasthan v. Parmanand & Ors. is on different issue that compliance of Section 50 to each accused is must and a joint communication to all the accused is not sufficient. However, while holding so, the Division Bench of the Hon'ble Supreme Court has relied upon the judgment of Page 30 of 72 HC-NIC Page 30 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT Dilip (Supra), but judgment of Full Bench in Vijaysinh Jadeja (Supra) was not cited before the Division Bench in the year 2014, and therefore, when the issue before the Division Bench is regarding joint communication to all accused, which is not the issue before us, this judgment could not help the accused to get rid-off conviction.
22. In (2009)8 SCC 538 between Rajender Singh Vs. State of Haryana wherein the full bench of five Judges of the Supreme Court has considered the provisions of Section 42 of the Act and held that in special circumstances and emergent situation, when the office is on move and recording of information is not practical prior to search and seizure, and would be detrimental to search and seizure concerned, the requirement of writing down and communicating the information to superior officer may be postponed for a reasonable period, which may even be after the search entry and seizure. Thereafter, what is decided is to the effect that whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case and further held that non-compliance of with Section 42 may not vitiate the trial if it does not cause prejudice to the accused. Thereby, in the present case, when there is no lacuna regarding compliance of Section 42 there Page 31 of 72 HC-NIC Page 31 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT is no reason for extending benefit of doubt to the accused on any count.
23. The following decisions of the Hon'ble Supreme Court which are neither over-ruled nor distinguished in any of the above cited cases confirms that there is no substance in any such submission by the appellant to get advantage on such legal or technical issues. It is now high time for all the advocates to be more precise and careful while citing any decision. Before citing any decision, the learned advocates shall prepare compilation of the decision on the subject and should be precise on the issue on hand rather than adopting a method of pick and choose of few judgments, which are in their favour, but otherwise they are trace judgments and not relied upon and referred or approved ngby larger bench.
24. In Kalerma Tumba Vs. State of Maharashtra & Ors. reported in AIR 2000 SC 402, which is relied on in AIR 2003 SC 3184 and followed in AIR 2003 SC 3642 wherein the Hon'ble Apex Court has, while dealing with Section 50 of the Act, held that when contraband material is found within the control of the person, but not from his person, then, requirement of informing the accused about his right u/s.50 of the Act need not be complied with as search of baggage and other storage material is not the same thing as search of the Page 32 of 72 HC-NIC Page 32 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT person himself.
25. In M. Prabhulal vs Assistant Director, Directorate of Revenue Intelligence reported in AIR 2003 SC 4311 wherein Hon'ble Supreme Court has held that when no complaint of torture was made by accused to Magistrate before whom they have been produced or vague complaint of torture is made only in statement, such confessional statement cannot be held to be illegal or involuntary and it can be made basis of conviction even if there is delay in recording the statement or even the FIR, more particularly when huge quantity of contraband material is apprehended to be transported in truck and/or car. In such reported case, similar to the facts of the present case, the truck carrying contraband material Heroin was taken to Customs Office, which was 20 Kms. away from the place from where vehicles were seized and when accused were not knowing regional language. Therefore, the statement was recorded on the next day and with that reference it was held that in such circumstances the recording of statement and FIR cannot termed as delayed one so as to vitiate the prosecution. It is further held that even non- examination of independent witnesses in such cases of seizure of contraband material is inconsequential when confessional statement of accused were found to be voluntary. Thereby, Page 33 of 72 HC-NIC Page 33 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT though vehicle was seized, when it was apprehended and thereafter taken to 20 Kms. away to the custom office and thereby seizure was made at Customs House and not on the spot, the Hon'ble Supreme Court has held that there is neither illegality nor irregularity in absence of any allegation that the contraband articles were in any way meddled with by the officers.
26. It is further held that in such cases even mandatory requirement u/s.42(2) need not be complied with when the gazetted officer himself has conducted the search and arrested the accused and seized the contraband as he was acting u/s.41 of the Act and that the Act reposes more trust on a gazetted officer.
27. This judgment is also relied upon and followed in AIR 2005 SC 3647, AIR 2007 SC 794 AND AIR 2007 SC 2041.
28. Therefore, if above-referred judgments are not over-ruled, then only because of some judgment cited by the appellant, which are distinguished herein above, it cannot be said that appellant has not committed any offence or that there is no evidence against him, and therefore, he must be acquitted.
29. In view of what is discussed herein above, when there is specific and positive evidence Page 34 of 72 HC-NIC Page 34 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT regarding seizure of the contraband material from the truck, which was driven and held by the appellant and when all other evidence is supporting the prosecution case, there is nothing on record to show that there is non-compliance of any statutory provision or any doubt about possession of contraband material, and therefore, there is no substance in the appeal and, hence, appeal deserves dismissal.
Criminal Appeal no.343 of 2012 by Jai Babulal Rathod
30. This appeal is preferred by original accused no.3 when we have discussed the appeal by accused no.1 herein above, it may be recollected here that accused no.2 Manoj Gohil has already expired as recorded herein above.
31. So far as accused no.3 Jai Babulal Rathod is concerned, learned advocate Mr.L.R.Pathan has argued mainly on the point of non-disclosure of name of accused no.3 in FIR, non-examination of one Vijaykumar Singh, who was referred as informant by PW-7 Prashank Kumar Singh, non- compliance of standing instructions regarding drawing of panchnama at the place of seizure spot itself, non-compliance of Section 42 and 57 of the Act regarding reporting and seizure within 48 hours.
Page 35 of 72HC-NIC Page 35 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT
32. In support of such submissions, he has relied upon the chargesheet itself, the allegation against the accused no.3 is only to the effect that accused no.3 has handed over the mobile phone to accused no.4, which was provided by accused no.6 and during investigating, the investigating team has found that even prior to present incident, accused no.2 and accused no.3 were in relation for 35 years and because of such relation, accused no.2, who is now no more, has supplied 2.5 Kgs. of Charas before two months of such incident for exporting illegally outside the country through photo-frames and for the purpose, they have prepared five sample photo-frames with a hidden space on backside of the frame where Charas can be stored. It is further alleged that for the purpose accused no.2 has paid Rs.15000/- for preparing photo-frames of big size and also given additional stock of 1 Kg. Charas in addition to 2.5 Kgs. Charas already given with an order to prepare more frames so as to store Charas on its backside. However, during investigation of such case, when accused no.2 has narrated all such fact and story in his statement u/s.67 of the Act, the investigating team has searched the residential house of accused no.3 and found such photo-frames and Charas from his house. Therefore, it is submitted by learned advocate Mr.Pathan that since there is no prior Page 36 of 72 HC-NIC Page 36 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT information and since it is not properly recorded or registered and since provisions of the Act are not complied with regarding conveying such information to higher authority, such seizure based upon statement of co-accused is not valid. However, there is no substance in such submission for the simple reason that accused could not rebut the evidence regarding seizure of contraband material from his house and that other corroborating evidence is supporting the story of the prosecution and that statement of co-accused u/s.67 of the Act is permissible under the law to be considered as an evidence, and therefore, based upon such evidence, during investigation and raid, if contraband is found from the house of the accused no.3, then pursuant to the decision in the case of M.Prabhulal (supra) as well as pursuant to decision of the Hon'ble Apex Court in the case of Bharatbhai Bhagwanjibhai Vs.State of Gujarat reported in AIR 2003 SC 7, non-compliance of statutory provision regarding search and seizure does not vitiate the proceedings against such accused.
33. Learned advocate for the appellant - accused has also relied upon the nature of complaint contending that even in complaint the only allegation against the accused no.3 is regarding sim-card under reference, submitting that perusal of statement u/s.67 by the accused no.2 discloses Page 37 of 72 HC-NIC Page 37 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT some other fact than what is stated in FIR. Surprisingly, on one side appellant has submitted that statement of co-accused u/s.67 cannot be relied upon for his prosecution and conviction and on other side, even for contradiction, he is relying upon some sentences and statement from the same statement of accused no.2 u/s.67 of the Act. We will consider such so-called contradiction while scrutinising the statement of accused no.2 u/s.67 of the Act to avoid repetition. However, it is sufficient to record here that such statement of accused no.2 u/s.67 of the Act is to be read in toto to appreciate and consider its outcome, inasmuch as in such statement, if there is a wrong story and history, and therefore, if prosecuting agency has considered and taken the last portion of the history which connects the present appellant, it cannot be said that there is either contradiction or non-examination of relevant person.
34. The appellant has relied upon evidence of PWs
- 7, 8 and 9 only so as to prove his innocence. Therefore, only that evidence and that too for limited part so far as it is connecting present appellant being accused no.3 is discussed herein.
35. PW-7 at Exh.200 is Prashant Kumar Singh, Director of Revenue Intelligence at Ahmedabad. It is his case that he has received a telephonic Page 38 of 72 HC-NIC Page 38 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT call from Dy.Director of D.R.I., Mumbai, namely, Vinay Kumar Singh conveying that some officers of D.R.I., Mumbai would be visiting him and would be parting with intelligence/information. Therefore, the fact is simple that secret information regarding narcotic substance is to be declared or disclosed to the witness by those officers, who are coming to Ahmedabad from Mumbai with such information and practically Vinay Kumar Singh does not have other information readily available with him or under his control. Therefore, the submission by the learned advocate that non- examination of Vinay Kumar Singh is fatal to the prosecution case, has no substance. We have already discussed the real information, which is at Exh. 202 wherein Director of Intelligence at Mumbai office has assigned the duty of conducting raid to Sr.Intelligence Officer Mr.Amin and it is evident from the deposition of PW-7 that such Sr.Intelligence Officer Mr.S.A.Amin had been to Ahmedabad and conveyed relevant information to Prashant Kumar Singh. Hence, role of Vijaykumar is limited to the extend of conveying that the team of Bombay is coming with intelligence. Whereas, if we examine the deposition of PW-7, it seems that in fact he was cross-examined by accused no.3. However, learned advocate Mr.Pathan for the appellant has tried to emphasize about lacuna with reference to the term 'reduced into Page 39 of 72 HC-NIC Page 39 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT writing' that there was no information placed on paper in handwriting of the witness, but that issue has already been discussed herein above while discussing the submission by appellant no.1.
36. Appellant has also relied upon deposition of PW-8 at Exh.205 being S.I.O. Mr.S.A.Amin. Here also what is emphasized by learned advocate Mr.Pathan is only to the effect that Mr.Amin has not received intelligence directly, and therefore, he could not act upon it when he has not reduced it into writing and that such intelligence at Exh.202 does not have outward number. However, so far as accused no.3 is concerned, considering the decision in Bharatbhai Bhagwanjibhai (supra), there is no requirement of recording such intelligence or considering compliance of certain mandatory provisions when details of involvement of accused no.3 was discovered during investigation and when while searching mobile and sim-card, contraband material was found from his house and when such information was disclosed during investigation in the statement u/s.67 of the Act of accused no.2. The appellant could not rebut the prosecution evidence in such cross-examination nor could prove his innocence since contraband material was found from his house so also the sim-card and mobile of particular number, which is to be used Page 40 of 72 HC-NIC Page 40 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT for main transaction of huge contraband material for which such case has been initiated.
37. Reference of PW-9 at Exh.207 is made to prove that the information received by him, is not proper or correct, when he is not ready to disclose the manner, time and place of such information. The cross-examination of the witness by all the accused is limited to such issue, though an attempt was made to find out such contradiction, but when there is no material contradiction, what is referred during the argument, is the protion relating to non- disclosure of certain details by the witness, when witness has specifically stated that he is refusing to disclose the source of information so also the time, manner and place of receipt of such information. However, there is no substance in such cross-examination so also the submission because the provision of the Act in the form of Section 68 specifically provides that no officer acting in exercise of powers vested in him under any provision of this Act or any rule or order made thereunder, shall be compelled to say that whence he got any information as to the commission of the offence. Therefore, no further discussion is required on such issue.
38. Learned advocate Mr.Pathan for the accused no.3 is relying upon following citations.
Page 41 of 72HC-NIC Page 41 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT a. Unreported judgment of Criminal Appeal no.2873 of 2008 by Division Bench of this High Court wherein it was held that panchnama should be at the spot of the seizure in compliance of standing instruction.
b. (2013)2 SCC 502 - Kishan Chand v. State of Haryana, wherein Supreme Court has held that non- compliance of provisions of Section 42 and 50 will result into benefit of doubt.
c. 2010(2) Crimes 558 between Pannalal Vs. State of H.P. Wherein Division Bench of H.P. High Court has considered definition of Charas and held that when entire sample was not resin, but some quantity was found present in the mass, then, such sample cannot be termed as Charas, so as to confirm conviction.
However, in the present case, the FSL has specifically deposed that the entire material was Charas, and therefore, such judgment is not much material when percentage of Charas as shown in FSL report as against the fact that in reported case, percentage of Charas was not disclosed. Therefore, this judgment would not help the appellant to get rid off conviction.
d. 2009(2) Crimes 190 - Raj Bahadur Vs. State of Punjab, wherein Single Judge of Punjab and Haryana High Court has held that in absence of independent witness, despite his availability, the possession of contraband material is to be treated as highly doubtful. Suffice to say that there are contrary decision by the Hon'ble Supreme Court, then such judgment by the Single Judge that when there is a statement u/s.67 of the Act and when there is recovery of huge Page 42 of 72 HC-NIC Page 42 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT quantity of contraband material and there is no allegation that contraband article was meddled with by the Officers, there is no necessity of independent witness (case of M.Prabhulal (supra)). Therefore, this judgment would also not help the accused to get rid-off conviction.
e. 2004(4) Crimes 347 between Rajesh Jagdamba Avasthi Vs. State of Goa wherein it is held that if weight of the sample and material seized is proved to be tampered with so also the seal of the sample, then, conviction is liable to be set- aside. There cannot be question to such principle, only because of such cited case, appellant would not get such benefit when there is no such evidence on record. Moreover, it is settled legal position that few and negligible contradiction in the evidence is not material, but the entire evidence is to be read and appreciated together, and not in piece-meal.
Moreover, the decisions of Bharatbhai Bhagwanjibhai (supra), M.Pannalal (supra) and Kalerma Tumba (supra) discussed herein above with reference to accused no.1 coupled with decision in State of Haryana Vs.Jarnail Singh reported in (2004)5 SCC 188 makes it clear that all above citations are not material and helpful to the appellant. It cannot be ignored as pointed out by learned advocate Mr.Hriday Buch for the respondent no.2 that FSL has conducted purity test and statement of accused no.2 - Manoj is corroborated with call records and that seizure of contraband material is only because of routine inquiry at the house of accused no.3, and therefore, there is no necessity of advance Page 43 of 72 HC-NIC Page 43 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT intelligence and, thereby, strict compliance of statutory provisions referred by the appellant.
39. In view of above facts and circumstances, when contraband material was recovered from house of accused no.3 pursuant to its disclosure by accused no.2 and that too in the same manner as disclosed by accused no.2 i.e. with sample photo- frame with hidden place behind the photo to hide the contraband material, so also the presence of mobile phone with sim number, which is disclosed by accused no.2 and when accused no.3 was personally present in the hotel with accused no.2 at the time of raid, to help the accused no.2, and thereafter when even accused no.3 himself has also admitted all such fact in his statement u/s.67 of the Act, now, there is no reason to interfere with the impugned judgment convicting the accused no.3, when Sessions Court has not committed any illegality, irregularity or arbitrariness either in appreciating the evidence or confirming guilt and conviction of the appellant - accused.
40. In view of such facts and circumstances, there is no substance in the appeal filed by accused no.3 and, thereby, it also deserves to be dismissed.
Criminal Appeal no.957 of 2012 by Suresh Babulal Page 44 of 72 HC-NIC Page 44 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT Sanchla
41. The appellant herein is original accused no.4, namely, Suresh Babulal Sanchla. If we peruse the charge at Exh.14, the charges are regarding conspiracy in completing the entire transaction. Thereby, huge quantity of contraband material was to be exported by hiding it in photo-frame to be prepared by accused no.3. For transporting of the muddamal article somewhere from Jammu & Kashmir upto Ahmedabad, the entire operation was handled and managed by accused nos.2 and 6 and in turn accused no.1 has transported it in his truck, whereas accused no.3 has agreed to prepare photo-frames with cavity on its backside for shifting the narcotic material behind it while exporting such photo-frames outside the country, whereas accused no.4 being nephew of accused no.2 has helped the accused no.2 in his activities of managing the stay in hotel at Gandhinagar,searching the truck at the place, namely, Adalaj cross-roads, keeping the money to be used for all such transactions at his house and then to pay it to the concerned person and, thereby, practically acting as an Assistant or helper or supporter of accused no.2, and thereby, abetting the crime.
42. Therefore, evidence against accused no.2 is material and sufficient to catch accused no.4 Page 45 of 72 HC-NIC Page 45 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT also when an amount of approximately Rs.2 Lacs was recovered from him, which is given by accused no.2 for payment to concerned persons during transaction and for making expenditure like hotel charges etc. But the most important evidence against accused no.4 is in the form of half portion of currency note of Rs.10/-, which is to be used for identification by both the sides i.e. accused no.1 who brought the contraband material from some other place and the person, who has to receive such material. Since it was so managed and arranged by the accused no.2 that half portion of currency note will remain with the transporter truck driver and half portion of the same currency note is to be shown to such driver at the time of accepting delivery so that even if both of them are not knowing each other, they can confirm their identity and there may not be any wrong delivery or any issue either regarding identification or delivery of such valued, but contraband material. Such tricky arrangement was made because the delivery is of contraband material, which is otherwise banned and illegal. Evidence also discloses that in addition to such half portion of currency note to be tallied between transporter and acceptor for communication amongst them, separate mobile numbers were arranged and provided to concerned persons. When all such arrangements were made by Page 46 of 72 HC-NIC Page 46 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT accused no.2 and when accused no.4 has helped the accused no.2 in his such activity and, thereafter, when he was found with accused no.2 and during his search, when Rs.2 Lacs cash with half portion of currency note of Rs.10 having sr.no.44V903612 was found from him with an additional amount of Rs.50000/-, which he has exported towards his charges for managing of such transaction, coupled with mobile phone with sim- card, which is otherwise purchased from Mumbai and provided to the accused no.2 by accused no.4, there is sufficient material on record to prove that accused no.4 is also part of conspiracy between all the accused. It is settled position that in such cases of conspiracy, every conspirator may have played different role and there may not be the same activity or act performed by each of them and many a times even each conspirator may not be aware about the role of other conspirator or even the entire plan of conspiracy, and therefore, only because no contraband material was recovered from accused no.4, it cannot be said that he is not involved in the commission of main offence. Because of such modus operandi and modality of criminals, the law already provides equal treatment in conviction of such conspirator and abettor. Principles of conspiracy and abatement is well- known and does not required much discussion, more Page 47 of 72 HC-NIC Page 47 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT particularly when such issue is to be discussed in detail while deciding the appeal by accused no.6, because the main defence of accused no.6 is non-involvement in such conspiracy and, thereby, it was argued at length that how conspiracy is to be considered in such cases.
43. Since there is lengthy evidence on record to confirm the conviction of each accused, so far as present accused is concerned, as his role is limited, though important, there is little scope to discuss his evidence, touching the present appeal. However, on scrutiny of the entire evidence on record in confirmation of paper-book containing two volumes and approximately 3000 pages in it, it becomes clear that there is ample and sufficient evidence against the accused no.4 to prove his presence with accused nos.2 and 3 with a positive evidence regarding recovery of unwarranted material (which is referred herein above) from him. It cannot be said that there is no evidence against the appellant. The scrutiny of evidence on record also makes it clear that the appellant no.4 could not rebut the prosecution evidence in any manner whatsoever or could not prove his innocence. So far as the issue regarding conspiracy is concerned, it would be taken care of while discussing the last appeal. Therefore, those legal technicalities are not reproduced herein.
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44. Even appellant could not show any material even in this appeal, which may lead to believe that he as accused no.4 has not committed any offence at all.
45. All the oral evidence in record confirms the above factual involvement of accused no.4 so also the documentary evidence in the form of panchnama confirms that cash amount, mobile phone and half portion of currency note was recovered from the house of appellant no.4.
46. Moreover, u/s.67 not only accused no.4, but accused nos.2 and 3 have also corroborated the factual details for which accused no.4 is being tried and convicted. Therefore, when there is no substance in his appeal, the same also deserves to be dismissed.
Criminal Appeal no.188 of 2012 by Prakash Krushna Bavlekar
47. Accused no.6 - Prakash Krushna Bavlekar is the appellant represented by learned advocate Ms.P.J.Joshi for whom learned advocate Mr.Sunil Mehta has argued at length and tried to challenge each and every issue to see that how conviction can be converted into acquittal. It is submitted by learned advocate Mr.Mehta for accused no.6 that he was not arrested till filing of the chargesheet, but accused no.6 was disclosed as Page 49 of 72 HC-NIC Page 49 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT absconder. However, the record shows that practically there was evidence against the accused no.6 till filing of the chargesheet against all the accused and in fact the accused nos.2, 3 and 4 were arrested only after recording statement of accused no.1 u/s.67 of the Act, and, thereby, there was no independent evidence against any of the accused. Even accused no.5, who has not filed an appeal, was also arrested only because of disclosure of her name in statement of accused no.1 and though nothing has been recovered from her. Similarly, accused no.6 is also added as an accused only because of disclosure of his name in statement of accused no.2 u/s.67 of the Act and though there was no recovery of any contraband material or unwarranted material or article from him. Therefore, it is submitted that practically, there is no evidence against the accused no.6 except the statement by the co-accused and that such statement cannot be relied upon and cannot be the sole basis for prosecuting and convicting any person. It is further submitted that even statement of accused no.2 u/s.67 of the Act, there is no clinching disclosure or evidence to prove the involvement of the accused no.6 and in fact there are material contradictions on record so as to conclude that accused no.6 is connected in such conspiracy in any manner whatsoever. It Page 50 of 72 HC-NIC Page 50 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT is further submitted that accused no.6 was not arrested till all the witnesses were examined and further statement of accused nos.1 to 5 u/s.313 of the Cr.P.C. was recorded. It is also stated that accused no.6 was arrested only in the year 2010 and that too after completing most of the trial against all the accused and, thereafter, a fresh charge was framed against accused no.6 on 15.2.2010 only, though prosecution was initiated in the year 2006. Thus, relying upon section 30 of the Evidence Act r/w.Section 10 of the Act, it is submitted that when basic ingredients of conspiracy is not proved and when there is no evidence to connect accused no.1 from whom contraband material was found with accused no.6 and when basis of connecting accused no.6 i.e. statement of accused no.2 is found to be false, on factual aspect also, the accused no.6 should not have been prosecuted, and therefore, his conviction is not proper. It is further submitted that though names of Shailendrasingh and Sanjay Shah was disclosed in the statement of accused no.2, selectively they were not joined either as accused or even they were not even examined as a witness to prove the factual details of sim-card being provided by them to accused no.2. So also, the story or fact regarding relation, intimacy or even identity of accused no.2 and 6 is not clear when there is contradiction regarding period of Page 51 of 72 HC-NIC Page 51 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT custody of both of them in Arthur Road Prison. It is also stated that no witnesses have been examined to prove the call record.
48. If we consider all above submissions, the settled legal position is quite clear that statement u/s.67 of the Act is admissible under evidence and complaint of torture or non- corroboration of some wordings made only in statement made u/s.313 of the Cr.P.C., cannot be considered to hold such confessional statement involuntary. It is submitted that such issue has been referred to the larger bench. Pursuant to decision in Tofan Singh Vs. State of T.N. reported in AIR 2014 SC (Suppl.) 1534, and therefore, it should be held in favour of the accused. However, if we peruse such judgment, on the contrary, it becomes clear that it creates doubt in the decisions which are on other side and thereby unless judgments in the case of Kanaiyalal Vs. Union of India reported in AIR 2008 SC 1044 and judgment in the case of M.Prabhulal (supra) are over-ruled, they certainly hold the field on the subject and cannot be ignored or discarded. Therefore, first contention regarding joining of the accused no.6 solely because of statement of co-accused is concerned, has no substance.
49. It is evidence from record that once charge Page 52 of 72 HC-NIC Page 52 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT was framed against accused no.6, he was offered to cross-examine all the witnesses and in turn, he has already cross-examined PW-1 after his further examination-in-chief pursuant to order below Exh.289. In such further examination-in- chief PW-1 at Exh.25, namely, Upendra Prabhudas Rathod has categorically deposed that when accused nos.2 and 6, both were in jail, for smuggling of gold and mandrax powder, they have decided to continue such business of smuggling of Hashish and for the purpose, accused no.6 has after being released from jail started the business in the name of M/s.Tejas Logistics and conveyed accused no.2 that since it is difficult to unload Hashish in Mumbai, it is to be unloaded somewhere in Gujarat for which accused no.2 was asked to manage everything and handover the amount of Rs.2.5 Lacs in advance with half piece of currency note of Rs.10 and two mobile numbers for contacting the driver, who will transport the Hashish in Gujarat. It is also stated by the witness that initially accused no.2 has brought two consignment of Hashish, first of 2.5 Kgs and 2nd of 1 kg., which is to be hidden in a photo- frame by accused no.3 and though accused no.6 was served with the summons on seven occasions, five by Ahmedabad office and two by Bombay office, he did not turn up, and therefore, they had checked call details of mobile numbers of both accused Page 53 of 72 HC-NIC Page 53 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT nos.2 and 6 as well as land-line number of accused no.6 and found that they were in contact till last moment of the incident i.e. search, seizure and raid by D.R.I. where huge quantity of Hashish was recovered. During cross-examination, this witness has admitted that accused no.6 has not talked to any other accused of this case except accused no.2, but reconfirms that accused no.2 and accused no.6 had talked through their personal phone also. He denies the suggestion that there was no evidence to connect the accused no.2 with accused no.6, but scrutiny of overall evidence-in-chief and cross, makes it clear that accused no.6 could not rebut the prosecution story in any manner and could not prove either his innocence or evidence to confirm that other phone number under reference are not correct or there was no communication between both of them in any manner whatsoever. When accused no.6 argues that no witnesses are examined against him, practically, he fails to realise that after framing charge against him, relevant witnesses were re-examined by recording their additional examination-in-chief so far as evidence against accused no.6 is concerned and accused no.6 was allowed to cross-examine them. Therefore, there was no substance in such submission. Moreover, accused no.6 has failed to realise that he was not added as additional accused no.6, but he was Page 54 of 72 HC-NIC Page 54 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT disclosed as absconder and accused no.6 was allowed to cross-examine them. Therefore, there is no substance in such submission. Moreover, accused no.6 has failed to realise that he was not added as additional accused no.6, but he was disclosed as absconder accused on day one when chargesheet was filed against accused nos.1 to 5 because he was able to hide himself for couple of years and he could be caught only when evidence against other accused was completed. Therefore, though, judicial decision may not rest upon probabilities and presumptions; it certainly transpires that accused no.6 was able to hide himself for couple of years and could be caught only when evidence against other accused was completed, but the fact remains that practically accused no.6 was disclosed as such in the first chargesheet itself and charge was framed against him only when he was arrested and thereafter relevant witnesses which has to prove something against accused no.6 was recorded again and accused no.6 was allowed to cross-examine such witness for entire examination-in-chief. Therefore also, now, it cannot be said that no proper opportunity was granted to the accused no.6 to defend himself.
50. In turn, second such witness is PW-7, who was further examined pursuant to order below Exh.289 wherein during examination-in-chief, the witness Page 55 of 72 HC-NIC Page 55 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT Prashant Kumar has in categorical terms deposed that accused no.6 is mastermind behind the entire offence. An admission by the witness that they had received communication from the lawyer of accused no.6, asking for time, is referred to support the submission that when accused no.6 was addressing a letter to the department, how and why he was disclosed as an absconder. Suffice to say that such letters are in reply and response to the summons issued by the department and if we refer one of such letter, it simply says that accused no.6 is busy and needs sometime to appear before the authority. Though such reply is also saying that he is innocent, the fact remains that if he is absolutely innocent, then, after getting the summons from the department, either he should have initiated appropriate judicial proceedings to declare him innocent or he should have boldly approached the authority to record his statement with supporting evidence, if any, to prove that he is not involved in such crime. The fact also remains that even after one of such letter seeking time to appear before the department, the care has never been taken-up and on the contrary he has filed a petition for quashing the FIR, which we will refer herein after, which confirms that even High Court has at relevant time prima facie held that there is substance in the FIR against accused no.6, and therefore, refused to Page 56 of 72 HC-NIC Page 56 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT quash the complaint against accused no.6.
51. PW-7 at Exh.200 has further deposed in his additional examination-in-chief that how accused no.6 has facilitated accused no.2 in transporting Hashish. During his cross-examination, though there is a reference to Shailendrasingh and Sanjay Shah, there is nothing in evidence to confirm that they are either aware or connected with such crime and no contraband material was found from them, and therefore, they are neither accused nor material witness because it is the duty of the accused to explain that how specific mobile numbers are being used between them, if they are absolutely innocent. The source of such mobile number is not much important. In any case, except the reference of Shailendrasingh, who was under accused no.2 and who has helped accused no.2 to get the different sim-cards, there is nothing in his cross-examination so as to rebut his evidence against accused no.6 or to prove anything in favour of accused no.6.
52. Next witness with reference to accused no.6 is PW-16 at Exh.249, remaining witnesses are not relevant so far as role of accused no.6 is concerned. Such witnesses is also re-examined pursuant to order below Exh.289 for the offence against accused no.6. It is his say in clear words that during inquiry, it was revealed that Page 57 of 72 HC-NIC Page 57 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT accused no.6 is the main conspirator of the entire incident and that he has not turned up even after service of summons. He further deposed that in response to the letter by advocate of accused no.6, they have conveyed such advocate to present the accused no.6 before them,but neither accused no.6 nor his advocate has ever turned up. He further deposed that on examining call record of accused no.2 and 6, it was proved that they were in contact with each other and that from the statement of accused no.2, there was sufficient evidence to confirm that it was accused no.6 who has initiated all such activities. The cross- examination of witness could not rebut his evidence in any manner so as to prove that there is no evidence against accused no.6 or that name of accused nol.6 is included with some ulterior motive.
53. Hence, issue raised by the accused no.6 is regarding strict compliance of Section 30 of the Evidence Act and he submitted that when accused no.2 is not chargesheeted with him, statement of accused no.2 cannot be used against him. For the purpose, great stress has been placed on the phrase "tried jointly" for the same offence used in Section 30 of the Evidence Act. For better explanation of such issue, it is necessary to reproduce Section 30 of the Evidence Act so also the illustrations below such Section, which reads Page 58 of 72 HC-NIC Page 58 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT as under:-
30. Consideration of proved confession affecting person making it and others jointly under trial for sameoffence.
--When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. 1[Explanation.--"Offence", as used in this section, includes the abetment of, or attempt to commit the offence.] Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said--"B and I murdered C". The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said--"A and I murdered C". This statement may not be taken into consideration by the Court against A, as B is not being jointly tried. COMMENTS Accused's confession cannot be used against co-accused The statement of the accused leading to the discovery, or the informatory statement amounting to confession of the accused, cannot be used against the co-accused with the aid of section 303; Kamal Kishore v. State (Delhi Administration), (1972) 2 Crimes 169 (Del).
If we peruse the above provision and appreciate it properly, it becomes clear that the phrase 'jointly tried' could not have a limited meaning, more particularly when in fact chargesheet was filed jointly against accused nos.2 and 6, but accused no.2 was not available for trial, since he was absconding, and, ultimately, when some of the evidence was recorded in presence of accused no.2 and, thereafter, accused no.2 died and accused no.6 was available to be tried. Rest of the witnesses relevant for other accused only, were examined in between i.e. till accused no.6 was convicted for trial. So, practically, both the accused were Page 59 of 72 HC-NIC Page 59 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT tried in some Sessions Case, and therefore, it cannot be said that they are not tried jointly. The accused no.6 is relying on some decisions, which would be taken care of while considering other citations. At the same time, provision of Section 10 of the Evidence Act cannot be ignored and, thereby, reading of both the Sections makes it clear that there is no substance in such submission. So far as non-examination of Shailendrasingh and Sanjay Shah is concerned, the fact remains that nothings unwarranted was recovered from them and they were not part of the conspiracy. Therefore, only because of their reference by accused no.2, they could not be treated as indispensable witnesses.
54. Similarly even if there is some contradiction regarding relation between accused no.2 and 6 during their custody in Arthur Road Prison is concerned, it is evident from record that in fact there is a prima facie evidence against them regarding their presence in Arthur Road Prison at the relevant time and similarly there is ample evidence on record to prove the activities of M/s.Tejas Logistic owned by accused no.6, and therefore, when there is other evidence to confirm the relationship between accused no.2 and 6, evidence with reference to Arthur Road Prison has no substance to consider that either it is a false story or that there is no evidence Page 60 of 72 HC-NIC Page 60 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT connecting accused no.6 with accused no.2.
55. Relying upon paragraph 6 of the judgment, it is submitted that though witness has been examined to prove the call details and so far as communication between accused no.2 and accused no.6 are concerned, witness from telephone company is also not examined. Therefore, relying upon the provisions of Information Technology Act, it is submitted that in absence of proper evidence for all electronic data, such evidence cannot be admitted on record and cannot be relied upon to confirm the conviction. However, the fact remains that the provisions of Information and Technology Act is relevant only when data is in electronic format. In the given case, what is proved on record is to the effect that on examining the particular mobile number with particular number of sim-card, it transpires that telephone calls were made between such mobile numbers and if such mobile numbers are used by particular persons, then, it can be said that they are in contact with each other. So far as existence of mobile with particular sim-card and phone call made or received from such phone is concerned, when such data is available on accessing the instrument itself, there is no need to prove electronic evidence, and therefore, provision of I.T. Act would not get attracted to prove such transaction. It may be necessary if Page 61 of 72 HC-NIC Page 61 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT data is otherwise not accessible, but in electronic format, and requires to prove its existence on electronic media so also its contents which can otherwise not be accessible by a human eye or by a common man. For the purpose, Mr.Mehta is relying on the provisions of Sub- section 4 of Section 65(B) of the Evidence Act. However, if we refer such provision, it becomes clear that Section 65(B) relates to admissibility of electronic records and simply confirms that if any electronic record is printed on paper, then it shall be deemed to be a document, if conditions mentioned in the section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original. Sub-section (4) is providing to attach a certificate regarding electronic record. Whereas, as discussed herein above, in my opinion, the evidence before the Court is not the electronic record, but it is only an information about connection between two telephone numbers, which can be covered even without accessing technical electronic record and more particularly when such evidence is only in corroboration of the other evidence to confirm the relation between accused no.2 and accused no.6, such submission has no substance so as to acquit the appellant.
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56. In support of his submissions, learned advocate is relying upon following decisions.
a. (2014)7 SCC 716 Adambhai Sulemanbhai Ajmeri v.State of Gujarat. It is a well known case of Akshardham Temple Attack wherein though Hon'ble Supreme Court has held that illegal framing of innocent persons would result into setting-aside their conviction and though learned advocate Mr.Mehta has read out several paragraphs from such judgment, it cannot be ignored that the discussion in such reported case is mainly based upon the typical facts and circumstances and evidence available on record of that case. Thereby only because Supreme Court has held something against the prosecution in a particular case, it cannot be a basis in all the cases of conspiracy to hold that there is no proof of conspiracy so as to acquit the accused. It cannot be ignored that in such reported case, the offences are under I.T. Act whereas we are dealing with the offence under the NDPS Act, which is a self-contained code, wherein there is specific provision under Section 67 to record the statement of the accused and such statements are admissible as Evidence against all the accused.
b. 2013 Cr.L.J. 2339 between Sunil Kundu Vs. State of Jharkhand submitting that presumption is not permissible. However, the same principle which is discussed in above paragraphs makes this judgment irrelevant, since it is dealing with offences under the IPC like murder and though accused there was absconding, the Apex Court has said that abscondment itself does not prove the guilt of the accused. In the present case, it is not an issue or story that accused no.6 is Page 63 of 72 HC-NIC Page 63 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT considered as a culprit only because of his abscondment, and therefore, such judgment is not material or relevant to acquit the appellant.
c. 2008(2) GLR 1598 between Iqbal Moosa Patel vs State Of Gujarat wherein though appeal of the convict was dismissed, an attempt was made to submit that there is no evidence regarding conspiracy between all the accused, and therefore, the conviction cannot be confirmed. However, reading of the entire judgment makes it clear that on the contrary the Division Bench has held that it is not necessary that each of the accused has connection with each to know other or that he needs all details or that he participated at every stage and that when there is a prima facie evidence that accused was a member of conspiracy, everything said, done or written by him is evidence against the other. It further confirms that confessional statement of accused recorded u/s.67 is admissible in evidence. So far as compliance of statutory provisions are concerned, again, it goes against the accused since Division Bench has held that where superior officer himself is present during the raid, there is sufficient compliance of Section 42(2). So far as quantity of seized muddamal is concerned, it is also held that once seized muddamal is proved to be narcotic drug in examination by FSL, different view cannot be taken.
Therefore,because of such judgment, appellant would not get benefit in any manner whatsoever.
d. 2006 Cr.L.J. 4598 State, Inspector of Police, Visakhapatnam. Vs. Surya Sankaram Karri wherein Hon'ble Supreme Court has held that issuance of an oral direction is not contemplated under the Act. However, in the present case, information was put on Page 64 of 72 HC-NIC Page 64 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT paper, which is proved at Exh.202 and it was endorsed to next officer in turn with signature of concerned officer, and therefore, it cannot be said that there were oral instructions only and thereby this judgment would also not help the accused.
e. (2002)7 SCC 334 - Mohd.Khalid Vs. State of W.B. wherein Supreme Court has dealt with Section 120A and B of the Penal Code regarding criminal conspiracy and explained the elements of it, but it is categorically held that offence of conspiracy can be proved either by direct or oral evidence. However, conspiracies are not hatched in open by their nature, they are secretly planned, and therefore, privacy and secrecy are more characteristics of a conspiracy, than a loud discussion in an elevated place, open to public view. Therefore, Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the conspirators set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily as a matter of inference. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Where trustworthy evidence establishing all links of circumstantial evidence is available, the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration. It can in some cases be inferred from the acts and conduct of parties.
Page 65 of 72HC-NIC Page 65 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT f. 2005 Cr.L.J. 3950 between Mohd. Afzal vs State (Nct Of Delhi) wherein Section 10 of Evidence Act has been discussed by the Hon'ble Supreme Court, but it nowhere held that even in case of conspiracy, the evidence by co-accused should not be considered at all. At the same time, it cannot be ignored that, it was a case under the IPC and Prevention of Terrorism Act and not under the NDPS Act wherein there is different provision regarding consideration of confessional statement of accused.
g. 2004 Cr.L.J. 5021 between Easher Singh Vs. State of Andhra Pradesh wherein expression "charged and tried" is discussed holding that if both the accused are not tried together, confessional statement of one accused cannot be relied upon to convict another accused. However, it is with reference to Section 15 of TADA. Though situation is to some extent similar i.e. one of the accused dies before completion of the trial and, thereby, Supreme Court has held confessional statement has no evidentiary value, the fact remains that, that is not the only evidence of co-accused, but other circumstantial evidence also proves the involvement of accused no.6 and, therefore, in my humble view, only because of this judgment, appellant cannot be acquitted. Though it is decision by the Hon'ble Apex Court, if we interpret the terminology "tried together" as argued by learned advocate for the appellant, then, it would result into a situation that every accused, where there is a confessional statement of the co- accused, would like to see that such accused died before trial is over and it would invite disturbing situation where there may be an attempt to kill such co-accused.
57. Learned advocate Mr.Mehta has also contended Page 66 of 72 HC-NIC Page 66 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT that full set of chargesheet is not provided to them. However, I do not believe such submission for the simple reason that such submission is made at a belated stage and that too at the time of final hearing of the appeal only and nowhere either during the trial or before such final hearing, so as to confirm that full set of chargesheet was not provided to accused no.6.
58. Thereby, there is no substance in the appeal and it deserves to be dismissed.
59. However, before concluding fate of each appeal, let us summarise the submission by the learned advocate Mr.Hriday Buch for the respondent - D.R.I. He has read out relevant portion and different depositions, which are not reproduced, but listed as under:-
No. Exhibit No. Details Page Nos. 1 Exh.200 PW-7 Prashant Kumar, 661 Dy.Director, D.R.I. 2 Exh.202 Information received 2047 3 Exh.205 PW-8 Deposition of 711 S.A. Amin 4 Exh.207 PW-9 Deposition of 729 Dipak Jhala, D.R.I. Officer 5 Exh.101 Panchnama of raid 1861 and recovery from truck. 6 Exh.99 Shri S.S. Warrier, 289 Ceiling Officer Page 67 of 72 HC-NIC Page 67 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT 7 Exh.210 PW-10 Shri 743 I.K.Purohit, panch witness 8 Exh.227 Panchnama of Hotel 2165 Yatri 9 Exh.173 PW-4 Shri 553 J.C.Trivedi, Seizing Officer 10 Exh.226 PW-12 Jayprakash 781 Wadia, Panch 11 Exh.220 Panchnama at 2069 residence of Suresh Sanchela 12 Exh.168 PW-3 Shri S.N.Iyer, 537 Seizing Officer 13 Exh.219 PW-11 J.H.Parikh, 771 Panch 14 Exh.27 Panchnama at house 1607 of Jay Rathod 15 Exh.25 PW-1 Shri U.P.Rathod 375 16 Exh.79 Complaint 1765 17 Exh.229 PW-13 Mukesh 787 Vaghela, Panch 18 Exh.251 Statement of Jay 2375 Rathod u/s.67 19 Exh.200 PW-7 Shri Prashant 661 Kumar 20 Exh.250 Statement of Accused 2365 Subhashsingh u/s.67 if NDPS Act. 21 Exh.252 Statement of 2387 Subhashsingh 22 Exh.182 Statement of Manoj 1985 Exh.184 Gohil u/s.67 of NDPS 2001 Act. 23 Exh.251 Statement of Jay 2375 Exh.253 Rathod u/s.67 of 2407 NDPS Act. Page 68 of 72 HC-NIC Page 68 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT 24 Exh.185 Statement of Suresh 2025 Exh.253 Sanchela u/s.67 of 2431 the NDPS Act. 25 Exh.78 FSL report dated 1713 - 27.9.2006 1751 26 Annexures B & C to 1600-1639 Panchnama. Mobile details of Manoj Gohil 27 Exh.302 Statement of Nilesh 2688 Charan, Independent Witness 28 Exh.303 Letter written to 2709 D.R.I. By NCB, Mumbai. 29 Exh.275 Quashing of Prakash 2555 Bavlekar 30 Exh.276 Discharge 2589 - Application 2627
60. However, I do not need to reproduce all such evidence since I do not find substance in any of the appeal and when all such paragraphs are against the appellants only. The sum and substance of the submission by learned advocate Mr.Buch is to the effect that :-
a) there is recovery of huge contraband material from the truck.
b) there is admission regarding their activity by accused nos.1 to 4.
c) accused no.5 has not preferred any appeal and admitted her conviction.
d) for accused no.6, there is statement of accused no.2 with evidence of phone-call and all Page 69 of 72 HC-NIC Page 69 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT such circumstantial evidence is sufficient to prove conspiracy.
e) antecedent of accused nos.2 and 6.
f) contact between accused nos.2 and 6 during material time.
g) money transaction by accused no.2.
h) judgment of bail application and quashing petition filed by accused no.6 which confirms that there was prima facie evidence of conspiracy against accused no.6 and accused no.6 could not rebut such evidence.
i) judgment of discharge application by accused no.6 wherein consideration and interpretation of Sections 10 and 30 was taken care of and when it is believed that statement of co-accused is admissible in evidence while rejecting the discharge application, now, such ground is not available to accused no.6.
j) motive, intention and knowledge is common amongst all of the accused to transport the contraband material from Jammu to Gujarat and then to export it outside India through photo- frames.
k) when contraband material was in a solid form, there is no question of stepping down the quantity while confirming conviction.
l) looking to the evidence on record, there is proper compliance of all relevant statutory provisions, whereas some of the decision by the Supreme Court confirms that in given circumstances, strict compliance may not be material, but prima facie evidence about compliance is sufficient.
61. In support of his submission, learned advocate Mr.Buch is relying upon following Page 70 of 72 HC-NIC Page 70 of 72 Created On Fri Aug 14 13:24:33 IST 2015 R/CR.A/188/2012 CAV JUDGMENT decisions:
a) (2002)7 SCC 334 between Mohd.Khalid Vs.State of W.B., paragraphs 17-27, 31, 32, 34, 37 &
38.
b) Criminal Misc.Application no.18996 of 2014
c) Criminal Appeal no.1269 of 2008 paragraph 31
d) (2008)5 SCC 688 between Kanaiyalal Vs. Union of India.
e) (2009)8 SCC 539 between Karnail Singh Vs. State of Haryana
f) (2004)5 SCC 188 - State of Haryana Vs. Jarnail Singh & Ors.
g) Criminal Misc.Application no.7322 of 2007
62. All these judgments negatives the submissions by the appellants, but when I have explained the reasons for discarding all the submissions by the appellant, I do not intend to reproduce the factual details of all such a citations. The sum and substance of all such citations are certainly in favour of the prosecution, and therefore, I rely upon them for my determination.
63. In view of above facts and circumstances, there is no substance in any of the appeals and, hence, all the appeals are dismissed.
64. R & P be sent back the concerned trial Court forthwith.
65. In view of the dismissal of Criminal Appeal no.957 of 2012, Criminal Misc.Application no.11425 of 2015 does not survive and stands disposed of accordingly.
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