Gujarat High Court
Abdul vs Narcotics on 27 January, 2010
Author: R.Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
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CR.A/718/2007 41/ 75 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 718 of 2007
With
CRIMINAL
APPEAL No. 994 of 2007
With
CRIMINAL
APPEAL No. 1440 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
AND
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
========================================================= ABDUL SALIM ABDUL MUNAF SHAIKH ALIAS SALIMBHAI & 1 - Appellant(s) Versus NARCOTICS CONTROL BUREAU & 1 - Opponent(s) ========================================================= Appearance :
MR DJ BHATT for Appellant(s) : 1 - 2.
MR KT DAVE for Opponent(s) : 1, MR DEVANG VYAS, ADDL.PUBLIC PROSECUTOR for Opponent(s) :
2, ========================================================= CORAM :
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 27/01/2010 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) These three Criminal Appeals arise out of a judgment and order rendered by learned Addl.Sessions Judge, 2nd Fast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1 of 2003. In Special NDPS Case No.1 of 2003, five accused persons, namely, Ketan @ Kanabhai Somabhai Patel, Habibkhan Usmankhan Pathan, Abdul Salim Abdul Munaf Shaikh @ Salimbhai, Nituben Abdul Salim Abdul Munaf Shaikh and Smt.Naseebbanu Yusufbhai Pathan came to be tried for the offences punishable under Sections 8(c), 20(b)(ii)(c), 25 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act , for short). At the end of the trial, the accused No.1 Ketan @ Kanabhai Somabhai Patel, accused No.2 Habibkhan Usmankhan Pathan, accused No.3 Abdul Salim Abdul Munaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh came to be convicted for the offences punishable under Sections 8(c), 20(b)(ii)(c), 25 read with Section 29 of the NDPS Act and each of them was sentenced to undergo R.I of ten years and fine of Rs.1 Lac each and in default of payment of fine, S.I for one year. Moreover, the accused No.3 Abdul Salim Abdul Munaf Shaikh @ Salimbhai, accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh and accused No.5 Smt.Naseebbanu Yusufbhai Pathan came to be convicted for the offences punishable under Sections 8(c), 20(b)(ii)(b), 25 read with Section 29 of the NDPS Act and each of them was sentenced to undergo R.I for seven years and fine of Rs.50000/- each and in default of payment of fine, S.I for one year. The sentences of imprisonment were ordered to run concurrently.
1.1 Original accused No.2 Habibkhan Usmankhan Pathan filed Criminal Appeal No.11 of 2007 challenging the impugned judgment and order rendered by the trial Court. However, during the pendency of said appeal, Habibkhan Usmankhan Pathan expired, and, therefore, Criminal Appeal No.11 of 2007 stood abated.
1.2 Criminal Appeal No.718 of 2007 is preferred by original accused No.3 Abdul Salim Abdul Munaf Shaikh @ Salimbhai and accused No.4 Nituben Abdul Salim Abdul Munaf Shaikh; Criminal Appeal No.994 of 2007 is preferred by original accused No.1 Ketan @ Kanabhai Somabhai Patel and Criminal Appeal No.1440 of 2008 is preferred by original accused No.5 Smt.Naseebbanu Yusufbhai Pathan under Section 374 of the Criminal Procedure Code ( Cr.P.C. , for short) challenging their conviction and sentence recorded by the trial Court.
Mr.Sahajanand Sachidanand Singh, serving as Intelligence Officer, Narcotic Control Bureau, Ahmedabad ( NCB, Ahmedabad , for short) on or about dated 23.5.2002 received a secret information to the effect that the accused No.1 Ketan @ Kanabhai Somabhai Patel resident of 101, Chitrakoot Apartment, Navsari dealing in contraband substance Charas was to receive large quantity of Charas at his residence, and thereupon, the secret information which Mr.S.S.Singh received at about 10.30 am in the morning on 23.5.2002 came to be reduced into writing by him and the copy of the same was forwarded to his immediate superior Officer. Pursuant to such information, it was decided to conduct raid at Navsari. On 26.5.2002, during night hours, Intelligence Officer Mr.S.S.Singh, Intelligence Officers Mr.Vikram Ratnoo, Mr.Pavansinh Gajesinh Tomar and Mr.Umesh Jayantkumar Pathak left Ahmedabad for Navsari, and at Navsari they stayed in circuit house. On next day, i.e. on dated 27.5.2002, during early morning hours at 7 am, two Panchas, namely, Hormez Firoz Avari and Mukesh Shankarrao Gole were called. They were apprised about the secret information received by Intelligence Officer Mr.Singh. Preliminary panchnama was drawn in the circuit house. Thereafter all the above referred Intelligence Officers along with two Panchas and Police Officers went to the house of the accused No.1 Ketan Patel. It is the prosecution case that in the house of accused No.1 Ketan Patel along with him, accused No.3 Abdul Salim @ Salimbhai and one absconding accused Mahmad Ramzan Kaliyari @ Ramzanbhai were found present. The Officers apprised them with the secret information received in this case and expressed their intention about the search and seizure. It is further the prosecution case that the accused were also apprised of their right of search to be conducted in presence of Gazetted Officer or any Magistrate, to which the accused stated that they have no objection if the search is conducted by the members of the raiding party. During the course of their personal search, nothing objectionable was found out. However, when his house was searched, from the room of the house, four packets containing contraband substance Charas came to be found. It is further the prosecution case that since the room was very small, and, therefore, it was decided that the weighing, packing and sealing etc. of the muddamal should be done at circuit house. In the house of the accused No.1 Ketan Patel, after concluding the panchnama containing search, seizure and recovery part of the contraband substance, the members of the raiding party along with Panchas and the above-referred three accused came to the circuit house, Navsari, where the contraband substance was weighed. The gross weight turned out to be 13 kgs. and 295 gm. However, the net weight turned out to be 12 kgs. and 899 gm. Samples were collected and were packed and sealed. Final part of the panchnama regarding drawing, weighing, sealing and packing of the samples and the remaining part of Charas was drawn in the circuit house. It is further the prosecution case that Intelligence Officer Mr.Singh recorded statements of accused No.1 Ketan Patel, accused No.3 Abdul Salim @ Salimbhai and the absconding accused Mahmad Ramzan under Section 67 of the NDPS Act. During the course of recording of statements, it transpired that out of the 13 kgs. Of Charas, accused No.3 Abdul Salim @ Salimbhai had come to the house of accused No.1 Ketan Patel to collect 4 Kg. of Charas and accused No.2 Habibkhan Pathan, resident of Baroda was to be sold 9 kgs. of Charas. From the statement of accused No.3 Abdul Salim @ Salimbhai, it was further revealed that he himself and his wife accused No.4 Nituben, who were residing at Ahmedabad, were dealing in contraband substance like Charas and accused No.3 Abdul Salim @ Salimbhai used to purchase Charas from accused No.1 Ketan Patel and the Charas to accused No.1 Ketan Patel was supplied by absconding accused Mahmad Ramzan. Upon receipt of such information, through the statements recorded under Section 67 of the NDPS Act, a message was conveyed to Intelligence Officer, Ahmedabad Mr.S.J.Lodha and upon receipt of such message, Mr.S.J.Lodha called two Panchas, namely, Harshad Jadavji and Hitesh Doliwad and at about 1.30 pm on 27.5.2002, Mr.S.J.Lodha together with other Officers of NCB and the above named two Panchas left their NCB office and went to the house No.B/31/Kubernagar, Ahmedabad and the accused No.4 Nituben along with one aged lady and one boy came to be found present in the house. She was informed about the secret information and she was also informed that the search was required to be conducted. She was apprised of her right to have the search conducted in presence of Gazetted Officer or any Magistrate, to which she stated that she had no objection if the search was conducted by the Officer of the NCB. Though from her personal search, nothing objectionable was found, but, from the house Charas came to be found, its gross weight was found to be 550 gm. and the net weight found to be 523 gm. Samples were collected from the Charas and same were duly packed and sealed. Panchnama to that effect was drawn which was signed by Panchas and the Intelligence Officer Mr.Lodha.
2.1 Samples collected from Navsari and from Ahmedabad were sent to FSL as well as CRCL, Delhi. The reports of FSL and CRCL, Delhi revealed that the samples contained contraband substance Charas.
2.2 Intelligence Officer Mr.Ratnoo lodged criminal complaint against the appellants herein as well as against the co-accused on dated 28.11.2002 in the Court of learned CJM, Navsari. Since the offence was exclusively triable by the Special Court (Court of Sessions), the learned CJM, Navsari committed the case to the Special Court, Navsari, which was registered as Special NDPS Case No.1 of 2003.
The learned trial Judge framed charge against all the accused including the appellants original accused Nos.1, 3, 4 and 5 to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined seven witnesses and produced relevant documentary evidence. After the prosecution concluded its oral evidence, the learned trial Judge recorded further statements of the accused persons, including appellants accused under Section 313 of the Cr.P.C. and the appellants accused in their further statements denied generally all the incriminating circumstances put to them by the trial Court and stated that they were falsely implicated in this case. They have expressed their desire to examine the defence witnesses. Thereupon the defence witnesses, namely, D.M.Valvi and Rameshbhai Buddhabhai were examined. However, before the defence witnesses were examined, the appellant accused preferred an application, Exh.255, requesting the trial Court to examine the FSL witnesses as Court witnesses. Said application was allowed and FSL witnesses Rajeshkumar Mehta and Jan Mahmad Fakirbhai Mansuri were examined.
3.1 After considering the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge came to the conclusion that the offence committed in Ahmedabad well as at Navsari were part and parcel of the same transaction and the outcome of the same conspiracy hatched by the accused. The trial Court further came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt on the basis of the recovery of large quantity of contraband substance as well as on the basis of the statements of the accused recorded under Section 67 of the NDPS Act. The trial Court ultimately, recorded the conviction of the appellants accused and awarded the sentence as hereinabove referred to in this judgment, which has given rise to the above-referred three criminal appeals.
We have heard the submissions made by learned advocate Mr.R.M.Agrawal and learned advocate Mr.D.J.Bhatt for the appellants original accused Nos.1,3,4 and 5 and we have heard the submissions of learned advocate Mr.K.T.Dave for the respondent NCB and learned A.P.P. Mr.Devang Vyas for respondent State of Gujarat.
On behalf of the appellants accused, it is submitted that the clubbing of two different offences, namely, the alleged recovery of Charas in Navsari and alleged recovery of Charas in Ahmedabad and to try all these different offences together, under one trial at Navsari, has caused prejudice in the defence of the accused. As a mater of fact, both are different and distinct offences and should have been tried separately.
5.1 It is further submitted that the original accused Nos.1, 2, 3 and 4 came to be convicted for the offence of recovery of Charas at Navsari and original accused Nos.3, 4 and 5 also came to be convicted for the offence relating to recovery of Charas at Ahmedabad. It is, therefore, submitted that if the trial Court intended to consider all the offences arising out of the same transaction and in furtherance of the common conspiracy, then the conviction of original accused Nos.3 and 4 recorded twice i.e. for the offence which took place at Navsari and for the offence which took place at Ahmedabad is bad in law. It is, therefore, submitted that for the same offence, the original accused Nos.3 and 4 are convicted twice.
5.2 It is submitted on behalf of the appellants accused that as per the evidence of the prosecution, at the time when the raid was effected at the house of the accused No.1, only the accused No.3 and absconding accused Mahmad Ramzan along with accused No.1 were present. Admittedly, the prosecution did not adduce any evidence to show that the house wherein the raid was carried out, at Navsari, was either owned by the accused No.1 Ketan Patel or that it was in his exclusive possession. Moreover, admittedly, the house was not either owned or possessed by appellant accused No.3 Abdul Salim @ Salimbhai. Therefore, it is submitted that the prosecution failed to prove that the appellants accused Nos.1 and 3 were in conscious possession of the Charas. That admittedly, at Navsari, accused Nos.4 and 5 were not present, yet, for Navsari offence, accused No.4 is held responsible.
5.3 It is further submitted that considering the letters signed by Intelligence Officer Mr.Vikram Ratnoo addressed to FSL, Exhs.172 and 174, there is a difference of weight about the contraband substance allegedly recovered at Ahmedabad. It is further submitted that so far as the recovery of contraband at Navsari is concerned, Panch Hormez in his evidence submits that the total weight of the contraband Charas was about 12 kgs. whereas as per the prosecution case, it is 13 kgs. and 295 gm. It is therefore, submitted that the discrepancy about the contraband substance is fatal to the case of the prosecution.
5.4 It is further submitted that as per the CRCL report, the purity of THC in the Charas allegedly recovered from Ahmedabad is 4.1% and it is 3.7% of purity of the Charas recovered from Navsari. In this connection, CRCL reports Exhs.184 and 185 were pressed into service. Accordingly, it is submitted that if the total weight of the contraband substance is considered, in light of the percentage of purity, it comes to the limit of small quantity. It is, therefore, submitted that alternatively, if the prosecution case is believed to be true, and if it is held that the prosecution successfully establishes the involvement of the accused in this offence, then the offence which can be said to have been committed is pertaining to the small quantity, and as per Section 20(b)(ii)(a) of the NDPS Act, the maximum sentence prescribed is six months imprisonment or with fine which may extend to Rs.10000/-. Therefore, it is submitted that in the instant case, the appellants have undergone more sentence than what is prescribed for small quantity and accordingly, the appeals may be allowed.
5.5 It is further submitted that considering the alleged recovery of contraband substance Charas from Navsari, as per the prosecution case, the weighing, packing and sealing of the samples etc. were undertaken at circuit house, though the contraband Charas was allegedly recovered from the house of the accused No.1 Ketan Patel. Drawing our attention to the evidence of Panch Hormez, it is submitted that the measurement of the room in circuit house and the measurement of the room of the house of the accused No.1 Ketan Patel is almost identical. Thus, the very act of the NCB Officers in carrying out the weighing, sampling and sealing of the contraband Charas at circuit house is doubtful. As per the NCB guidelines, the seizure, search, recovery of contraband substance and its weighing, sealing and packing should have been made at one place and that place should be the place from where the recovery was made.
5.6 On behalf of the appellants - original accused, it was strenuously alleged that no reliance can be placed upon the so-called statements of the appellants allegedly recorded under Section 67 of the NDPS Act. It is submitted that though on paper their arrest is shown to be at later point of time, but at the time when the statements were allegedly recorded, they were in custody of the NCB Officers. Thus, no reliance can be placed upon the statements recorded while the appellants were in custody of the NCB Officers. It is further submitted that the statements allegedly recorded under Section 67 of the NDPS Act are outcome of coercion, threat, undue influence and promise. It is submitted that there is no dispute that appellants, barring appellant original accused No.5 Smt.Nassebbanu Yusufkhan Pathan, retracted their confessional statements at the time when their further statements were recorded under Section 313 of the Cr.P.C. Further, the appellant original accused No.5 Smt.Nassebbanu had sent writing from jail alleging that her statement was recorded after adopting coercive tactics by the Officers of the NCB.
5.7 About the statements recorded under Section 67 of the Act, it is submitted that the conviction cannot be recorded solely on the basis of the bare statement. The statement is required to be corroborated by other evidence on record. It is further submitted that in the instant case, so far as appellant accused No.1 Ketan Patel is concerned, nothing is recovered by the NCB Officers, which would suggest that the house from where the contraband Charas came to be recovered was either owned by him or that he was either tenant in the premises or that it was in his exclusive possession. So far as the appellant accused No.3 Abdul Salim @ Salimbhai is concerned, admittedly, the house from where the contraband Charas came to be recovered, was not either owned or possessed by him. Even if the prosecution case as it stands is believed, that at the time of search and seizure, he was found in the company of accused No.1 Ketan Patel in his house, thereby it cannot be said that the contraband Charas allegedly found from the house was within his conscious possession. Accused No.3 Abdul Salim @ Salimbhai is also convicted for the offence of possession of contraband substance Charas, which was recovered from Ahmedabad. Admittedly at the time when the raid was conducted at Ahmedabad, he was already under arrest in connection with Navsari offence and was in custody of the NCB Officers. So far as the appellant accused No.4 Nituben wife of Abdul Salim @ Salimbhai is concerned, admittedly at the time when the NCB Officers raided the house of the accused No.1 Ketan Patel at Navsari, she was not present in the house. She was in her house at Ahmedabad. There is no nexus whatsoever between the contraband substance Charas allegedly recovered at Navsari and allegedly recovered at Ahmedabad. Their quality etc. are totally different. Admittedly, the NCB Officers did not collect any material to show that the house from which the contraband substance Charas was recovered at Ahmedabad was either owned or belonged to accused No.4 Nituben. So far as the appellant accused No.5 Smt.Naseebbanu is concerned, admittedly, she was not present at Navsari, when the house of accused No.1 Ketan Patel was raided, she was even not present in the house of appellant accused No.4 Nituben, when her house was raided. Nothing was recovered from the house of appellant accused No.5 Smt.Naseebbanu. That, thus, the bare statements without any support of corroborative evidence cannot be considered as substantive piece of evidence to base the conviction.
5.8 About the appellant accused No.4 Nituben, it is further submitted on behalf of the appellants that as emerged from the seizure panchnama, at the time when the raid was carried out in her house at Ahmedabad, over and above herself, one lady Chayaben and one male member were present. Despite this, prosecution booked only the respondent accused No.4 Nituben in connection with this offence.
5.9 About the Navsari raid, on behalf of the appellants, it is submitted that as per the prosecution case, the Charas allegedly recovered was weighing about 12 kgs. The appellant accused No.3 Abdul Salim @ Salimbhai had come to the house of the appellant accused No.1 Ketan to buy Charas weighing about 4 kgs. as per the prosecution case, yet, no money was found from his possession which was sufficient towards the payment of consideration. That, thus, the prosecution case that the accused No.3 Abdul Salim @ Salimbhai had come to the house of accused No.1 Ketan Patel for the purpose of purchasing 4 kgs. of Charas cannot be accepted. Even as per the prosecution case, no delivery of Charas weighing 4 kgs. was made by accused No.1 Ketan Patel to accused No.3 Abdul Salim @ Salimbhai at the time when the raid was conducted.
5.10 On behalf of the appellants it is submitted that as per the prosecution case, more number of persons are involved in the alleged conspiracy and trafficing of Charas, yet, out of them, only the appellants are booked by the prosecution.
5.11 It is further submitted that the prosecution is supposed to prove that the contraband substance recovered is Charas. In the instant case, the prosecution failed to prove that the substance recovered is Charas as defined under the NDPS Act.
5.12 It is submitted that the manner of recording the further statements of the appellants under Section 313 of the Cr.P.C. is faulty. Almost identical questions were put to all the appellants accused and identical replies were incorporated in the statements. That, thus, the said examination is not in confirmity with law and the same is against the purpose of enacting Section 313 of the Cr.P.C.
5.13 Assailing the impugned judgment and order rendered by the trial Court, on behalf of the appellants, it is submitted that the trial Court erred in holding that the prosecution case is proved by taking resort to the presumptions contained under Section 35 and Section 54 of the NDPS Act. That the trial Court misread the provisions regarding the presumptions, and there cannot be a presumption of guilt under Section 35 and Section 54 of the NDPS Act. Basic facts are required to be proved by the prosecution. If the prosecution proves beyond reasonable doubt that the contraband substance was in the exclusive and conscious possession of the appellants, then only the necessity to draw the presumption contained under Section 35 and Section 54 of the NDPS Act would arise. In the instant case, the prosecution failed to prove the basic facts and, therefore, trial Court committed error in arriving at the conclusion that the guilt of the appellant accused is very well established on the basis of such presumptions.
5.14 Learned advocates Mr.Agrawal and learned advocate Mr.Bhatt for the appellants relied upon certain judgments delivered by the Hon'ble the Apex Court, which shall be discussed in this judgment at relevant place. Ultimately, it is submitted that these appeals may be allowed and the judgment and order rendered by the trial Court be set-aside and the appellants accused be acquitted of all the charges levelled against them.
Learned advocate Mr.Dave for the respondent NCB and learned A.P.P., Mr.Vyas, for the respondent State vehemently opposed these appeals. It is submitted that the trial Court rightly appreciated the evidence on record and rightly came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt. The trial Court rightly conducted the single trial in connection with the recovery of Charas effected at Navsari as well as recovery of Charas effected at Ahmedabad. Our attention was drawn to Sections 178 and 223 of the Cr.P.C. as well as Sections 25 and 29 of the NDPS Act read with Section 8(c) of the NDPS Act. It is submitted that the recovery of contraband substance Charas from the house of appellant No.1 at Navsari and from the house of appellant No.4 from Ahmedabad is part and parcel of same transaction and conspiracy. In furtherance of the conspiracy and the same transaction, the offences at Navsari and at Ahmedabad were committed. That, therefore, the trial Court rightly undertook the exercise of common trial and rightly recorded the conviction of the appellants.
6.1 It is submitted that the prosecution furnished clear and cogent evidence in the form of FSL report as well as considering the oral evidence of FSL Officers, it is clearly established that the contraband substance recovered from Navsari and from Ahmedabad is Charas as defined under Section 2(iii) of the NDPS Act. That considering the definition of 'Cannabis(Hemp)' defined under the NDPS Act and considering the overall evidence on record, it clearly transpires that the THC percentage can never be the decisive factor to come to the conclusion that the substance is 'Cannabis(Hemp)'or not as defined under the NDPS Act. No minimum percentage of THC is suggested in the definition, whereas in the case of opium as defined under Section 2(xv) of the NDPS Act, it is clearly provided in the definition of opium that the substance cannot be termed as opium, if it does not include any preparation containing not more than 0.2% of morphine. No such rider is there in the definition of 'Cannabis(Hemp)' defined under Section 2(iii) of the NDPS Act. Moreover, it is submitted that the contraband substance Charas is a natural substance and not a manufactured drug. Nothing emerges from the evidence on record that the Charas was blended with any neutral substance. Therefore, it is submitted that the contention regarding the purity test raised by the appellants, is not required to be considered. The trial Court, therefore, rightly recorded conviction of the appellants accused No.1, 3 and 4 for the possession of Charas of commercial quantity and rightly recorded the conviction of appellants accused No.3, 4 and 5 for possession of intermediate quantity of Charas. The contention, therefore, raised on behalf of the appellants that the appellants should have been convicted regarding the small quantity cannot be considered.
6.2 About the statements recorded under Section 67 of the NDPS Act, on behalf of the respondents it is submitted that the trial Court rightly relied upon those statements. Nothing emerges from the record that the statements were outcome of any coercion, threat or promise administered by any of the NCB Officers to the appellants. The appellants accused No.1, 3 and 4 during the course of entire trial did not make any attempt to retract the confessional statements. Their statements were recorded before their arrest. After the recording of those statements, ultimately, they were arrested. There is no dispute that so far as appellant accused No.5 Smt.Naseebbanu is concerned, she had sent a writing through jail stating her intention to retract the confession, but, thereafter, nothing was done on her part to support her allegation that her confessional statement was outcome of any coercion. It is submitted that all the four appellants accused were produced before concerned Judicial Magistrate First Class within 24 hours after recording of their confessional statements under Section 67 of the NDPS Act and none of them made any complaint of ill-treatment against any of the NCB Officers and none of them stated before the concerned Judicial Magistrate First Class that their statements were recorded under coercion. That the statement of appellant accused No.1 Ketan Patel was recorded by PW-1 Mr.S.S.Singh, Intelligence Officer, the statement of accused No.3 Abdul Salim @ Salimbhai was recorded by the same Intelligence Officer Mr.Singh, statement of appellant accused No.4 Nituben was recorded by Intelligence Officer Mr.Lodha, examined as PW-3 and the statement of appellant accused No.5 Smt.Naseebbanu was recorded by the Intelligence Officer Mr.Lodha. The Officers who recorded the confessional statements have been examined as witnesses in this case by the prosecution and considering their evidence, it is duly established that the statements of the appellants were voluntarily made and that they were free from any coercion or undue influence or promise. It is further submitted that mere fact that at the time when their statements were recorded, they were in custody of NCB Officers, cannot be considered that they were under any detention after arrest. The appellants were duly summoned by the NCB Officers and thereafter, their statements were recorded. Before recording the statements, the appellants were informed that they were not bound to make any statement and that their statements may be used against them and against other persons.
6.3 It is further submitted that though no corroboration is required to the statements recorded under Section 67 of the NDPS Act, but, in the instant case, statements of the appellants are corroborated by the evidence of the recovery of contraband article Charas as well as the evidence of NCB Officers and Panchas examined in this case.
6.4 On behalf of the respondents, it is submitted that as emerged from the evidence on record, entire transaction was on credit basis. The appellants were knowing each other and the evidence suggests that the payment was made through Angadia. Therefore, mere fact that at the time of personal search of the appellants, no sufficient money was recovered, which would have been sufficient to meet with the price of the Charas, that itself cannot be considered to be a ground to disbelieve the entire case of the prosecution considering the peculiar facts and circumstances of this case and the evidence on record.
6.5 It is submitted that as a matter of fact there is no discrepancy in weight of the contraband substance, which would render the entire prosecution case a suspicious one. It is further submitted that throughout the trial, the muddamal was kept available before the trial Court and considering the evidence of the material witnesses examined by the prosecution, it clearly transpires that the packets containing the samples etc. were shown to them and they identified the muddamal.
6.6 About the further statements recorded under Section 313 of the Cr.P.C., it is submitted that no illegality or any irregularity is committed by the trial Court in recording the further statements of the appellants. Nothing is suggested that any incriminating evidence used by the trial Court for recording the conviction was missed by the trial Court while recording the further statements of the appellants . The incriminating evidence used by the trial Court while recording the conviction was put to the appellants in their further statements recorded under Section 313 of the Cr.P.C.
6.7 On behalf of the respondents it is submitted that this being the first appeal wherein question of law and question of fact can be considered and in that perspective, the statements of the appellants recorded u/s.67 of the NDPS Act need to be appreciated, coupled with the fact that even during the course of hearing of these appeals, no ground is made out to come to the conclusion that the statements are outcome of any coercion, threat or any promise.
6.8 Learned advocate, Mr.Dave, for the respondent NCB and learned A.P.P., Mr.Vyas, for the respondent State of Gujarat, referring to the provision contained under Section 8(c) of the NDPS Act submitted that to produce, manufacture, possess, sale, purchase, transport, warehouse, use, consume, import interstate, export interstate, import into India, export from India or tranship in narcotic drug or psychotropic substance is expressly prohibited and the contravention so far as Charas is concerned, is made punishable under Section 20 of the NDPS Act. Our attention was drawn to Section 25 of the NDPS Act wherein any person who is owner or occupier or having the control or use of any house, room etc. knowingly permits it to be used for the commission of offence punishable under this Act is made punishable under Section 25 of the Act. Our attention was drawn to Section 29 of the Act which pertains to punishment for abetment and criminal conspiracy. In Sub-section 1 of Section 29 of the Act, it is clearly provided that 'whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and not withstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. (emphasis supplied). Therefore, it is submitted that considering the facts and circumstances of the case and evidence on record, the trial Court rightly came to the conclusion that all the appellants accused are guilty of the offences punishable under Sections 20, 25 r/w. Section 29 of the NDPS Act.
6.9 Learned advocate, Mr.Dave, for the respondent NCB and learned A.P.P., Mr.Vyas, for the respondent State relied upon certain judgments rendered by Hon'ble the Apex Court which shall be discussed in this judgment at relevant time. Ultimately, it is submitted that these three criminal appeals may be dismissed.
We have examined the record and proceedings in context with the submissions made by the rival sides.
At the outset, as emerged from the evidence on record, the Intelligence Officer NCB, Mr.Singh on 23.5.2002 received a secret information while he was in his office at Ahmedabad. Considering the evidence of PW-1 Mr.Singh, Exh.41, at about 10.30 a.m. in the morning, he received the information on telephone that in the house of accused No.1 Ketan Patel situated at 101, Chitrakoot Apartment, Kadiawad, Navsari, Charas is stored and that said Ketan Patel is dealing in Charas and within short period, he is to receive consignment of Charas at his residence. Said information was reduced into writing and was forwarded to his immediate superior. Exh.45 is the letter and the information which Mr.Singh received, which was reduced into writing by him was annexed with the letter, Exh.45. On this aspect of the matter, on behalf of the appellants, it was submitted that the prosecution should have produced the original writing containing the information. Now, considering the provisions contained under Section 42(2) of the NDPS Act, it is clearly provided that the concerned Officer who received the information and which he has reduced into writing, then he shall within 72 hours send a copy thereof to his immediate superior Officer. Under such circumstances, in the instant case, we are of the considered opinion that the mandatory requirement laid down u/s.42 of the NDPS Act cannot be said to have been violated. Moreover, in the case of Hamidbhai Azambhai Malik Vs.State of Gujarat reported in 2009(1) GLR 828, Hon'ble the Apex Court discussing the provisions contained u/s.42 of the NDPS Act, has observed that under Section 42(2), such empowered officer who takes down any information in writing or records the grounds under provisio to Sec.42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent, it is mandatory.
8.1 Thus, in light of the evidence on record, it cannot be said that in the instant case, there is total non-compliance of the mandatory requirement laid down under Section 42 of the Act. As stated above, considering the evidence of PW-1 Mr.Singh and the document, Exh.45, in the case, the mandatory requirements are duly and fully complied with.
Further considering the evidence of Mr.Singh, it transpires that on 26.5.2002, he himself and other Officers of the NCB left Ahmedabad for Navsari and they reached Navsari at about 10 p.m. on 26.5.2002 and they stayed in Navsari circuit house. On behalf of the appellants, it was submitted that the defence has examined defence witness Dattubhai Valvi at Exh.270 and according to his evidence, at the relevant time, Mr.Valvi was serving as Clerk in Navsari circuit house and he has produced the extract of register containing the names of the guests in the circuit house and nothing emerges that the two rooms, namely, room No.7 and room No.8 in the circuit house were booked either in the name of Intelligence Officer NCB Mr.Singh or in the name of any the Intelligence Officer. We have carefully gone through the evidence of Mr.Valvi recorded at Exh.270 and the extract of guest register, Exhs.271, 272 and 273. Apparently, it is clear that, in the register, name of Mr.Singh or the name of any Intelligence Officer NCB, Ahmedabad does not figure out. Mr.Valvi in his cross-examination, clearly admits that the primary duty to make entries in the register is of his manager. However, he is serving as clerk and only in the absence of Manager, sometimes, he performs the duty to post necessary entries in the register. He further admits that he may not be present at the time when all the entries in the register were posted. Moreover, it has come on record that from 26.5.2002 till 29.5.2002 room Nos.7 and 8 were booked in the name of Mr.N.V.Chauhan PSI (ATS) and from 26.5.2002 to 29.5.2002 said rooms were occupied by NCB Officer Mr.Singh and other Officers of the raiding party.
9.1 Further considering the evidence of PW-1 Mr.Singh, on 27.5.2002, at about 6 a.m. in the morning, two Panchas, namely, Hormez Avari and Mukesh Shankarrao Gole were called in the circuit house. They were apprised about the secret information, and the raid at the residence of accused No.1 Mr.Ketan Patel was arranged. In his evidence, he narrated the entire facts regarding the raid. According to him, he himself, along with other Officers of the raiding party and Panchas as well as local Police Officer went to 101, Chitrakoot Apartment, Kadiawad, Navsari after drawing preliminary panchnama in the circuit house. Accused No.1 Ketan Patel opened the door and in the room of the house, two more persons were found seated and they were accused No.3 Abdul Salim @ Salimbhai and absconding accused Mahmad Ramzan. Officers of the raiding party introduced themselves to the trio and apprised them about the information which was received. The accused Nos.1 and 3 as well as the absconding accused Mahmad Ramzan were apprised that search was required to be conducted and if the search is required to be conducted in presence of any Gazetted Officer or Magistrate, then the accused have option, to which they stated that the Officers of the raiding party can carry on the raid. The personal search of the accused persons was conducted, but nothing objectionable was found. Thereafter, the room was searched and four packets were found out. Upon field testing, it was found that each packet contained Charas. Though on behalf of the appellants, attempt was made to suggest that provisions contained under Section 50 of the NDPS Act have not been duly complied with. However, considering the evidence of Mr.Singh, the mandatory requirements laid down u/s.50 of the NDPS Act have been duly and fully complied with. Moreover, considering the case of Megh Singh Vs.State of Punjab (2003)8 SCC 666, Hon'ble Apex Court discussing the mandatory requirements laid down u/s.50 of the NDPS Act has observed that the applicability of Section 50 of the NDPS Act arises only in case of personal search of a person. But, where the accused was found to be in possession of gunny bags, the search of such bags did not attract Section 50 . In the instant case, the contraband substance Charas was found from one attach?, which was lying in the room. No objectionable substance was found from the person of any of the three accused persons. However, as stated above, despite this, in the instant case, the requirements under Section 50 of the NDPS Act have been duly and fully complied with.
Moreover, considering the evidence of PW-1 Mr.Singh, it transpires that during the search conducted in the room, the attach? containing four packets of Charas was found. The next procedure which was required to be carried out was to weigh the substance, preparation of samples and the packing and sealing of samples and packing and sealing of remaining contraband material. Mr.Singh deposed that the room was small enough to carry out the remaining procedure and, therefore, with the consent of the accused, they came back to circuit house, Navsari. In the circuit house in room Nos.7 and 8, weighment of Charas was made and gross weight of the substance was found to be 13 kgs. and 295 gm. whereas the net weight was 12 kg. and 899 gm. The samples were collected and were packed, sealed, and affixed the slips containing signatures of the Panchas.
10.1 On behalf of the appellants, it was vehemently argued that the sealing and packing of samples etc. should have been done at the place from where the contraband substance Charas was found. According to them, the substance should have been weighed in the room from where it was found and the remaining procedure about collection of samples, packing and sealing etc. should have been done in 101, Chitrakoot Apartment, Navsari. It was vehemently submitted that thus the standing instruction of NCB regarding collection of sample etc. have been violated. Our attention was drawn to the case of Khet Singh Vs.State of Union of India reported in AIR 2002 SC 1450.
In paragraph 10 of said judgment, Hon'ble the Apex Court has observed that the instructions issued by the NCB, New Delhi are to be followed by the officers of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law . It is observed that it is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. There cannot be any dispute regarding the principles established by Hon'ble Apex Court in this respect. However, in the instant case, considering the evidence of PW-1 Mr.Singh, he has assigned reasons as to why the packing and sealing procedure was not conducted in the house of the accused No.1 Ketan Patel and why after conducting the search and seizure in the house of accused No.1 Ketan Patel, it was decided that the subsequent procedure should be conducted in circuit house, Navsari. The reason assigned by Mr.Singh is that considering the size of the room, they thought it fit to carry out the subsequent procedure in the circuit house. According to him, in that respect, the accused also consented. In this connection, if the panchnama, Exh.52 is considered, it is clearly stated that after search and seizure was conducted, it was decided to carry out further process regarding weighment of the contraband substance, the collection of samples, their packing etc. in circuit house, Navsari. Moreover, in this connection, if the evidence of Panch Hormez Firoz, PW-2 examined at Exh.125 is considered, he categorically supports the contents of the panchnama, Exh.52. According to him, from the attach? lying in the room, the four packets of Charas were found out. He further deposed that since the house of the accused No.1 Ketan Patel was small, and, therefore, Officers of the raiding party decided to carry out the task of sampling, sealing etc. in circuit house, Navsari. He further deposed that for that purpose, accused gave their consent. In this regard, if the evidence of Officers of the raiding party, namely, PW-5 Mr.Vikram Ratnoo, examined at Exh.158 and Mr.U.J.Pathak PW-7, examined at Exh.218 is considered, they also categorically corroborated the evidence of PW-1 Mr.Singh in all material particulars. Moreover, we will discuss about the statements of the accused recorded under Section 67 of the NDPS Act and their evidential value in detail in this judgment later on, but at this juncture, considering the statement of accused No.1 Ketan Patel, recorded u/s.67 of the NDPS Act, produced at Exh.59, he stated that at the time when his house was searched, his mother had gone to meet his mother's sister and he requested that his house may be locked and the key may be handed over to his neighbour before leaving the house for circuit house, so that his mother may not know about the illegal activity he was doing in the house. Thus, according to his statement, the mother of accused No.1 Ketan Patel was to arrive at any time and his mother was not knowing about the illegal activity he was doing, and, therefore, he requested that before going to circuit house, his house may be locked and the key may be handed over to his neighbour so that his mother may not be shocked. This aspect is also required to be considered as to why the Officers after seizure of the contraband substance from his house decided to perform other formalities not in the house itself, but in circuit house, Navsari.
Therefore, in the instant case, we do not find any reason to come to the conclusion that since the contraband substance Charas was not weighed at the place from where it was seized and the other procedure, namely, collection of samples, their packing and sealing etc. was not carried out at the place of the seizure, that would render entire prosecution case a doubtful one. We do not find any reason to come to the conclusion that any procedural illegality or irregularity have been committed by the Officers of the raiding party in this respect.
Considering the evidence on record, it clearly transpires that NCB Officer PW-1 Mr.Singh recorded the statement of accused No.1 Ketan Patel on 27.5.2002, which is produced at Exh.59, he also recorded the statement of accused No.3 Abdul Salim @ Salmibhai on 27.5.2002, which is produce at Exh.58. Considering the evidence of NCB Officers examined in this case and the statements, Exhs.58 and 59, it was revealed that accused No.3 Abdul Salim @ Salimbhai had come to the house of accused No.1 Ketan Patel to collect 4 kgs. of Charas. It was further revealed that 9 kgs. Of Charas was to be delivered to accused No.2 Habibkhan Pathan (now deceased) at Vadodara. So far as accused No.3 Abdul Salim @ Salimbhai is concerned, it was further revealed that he was residing in Ahmedabad along with his wife accused No.4 Nituben and both husband and wife were doing business of selling Charas. The activity was conducted in his house at Ahmedabad. Immediately, on 27.5.2002, said information was passed on to Intelligence Officer Mr.Lodha at Ahmedabad. Considering the evidence of PW-3 Mr.Lodha, examined at Exh.128, upon receipt of such information, while he was in NCB Office, Ahmedabad, two Panchas, namely, Harshad Jadavji and Hitesh Doliwad were called. The Panchas were apprised about the information received and that the raid was required to be conducted at B/31/Kubernagar, Ahmedabad. On 27.5.2002 at about 1.30 p.m. Mr.S.J.Lodha, other Officers of the NCB along with the Panchas left the NCB office, Ahmedabad after preparing preliminary panchnama, for B/31/Kubernagar, Ahmedabad. That reaching to the place of the information, the accused No.4 Nituben Salimbhai, wife of accused No.3 Abdul Salim @ Salimbhai was found in the house. She was informed about the secret information received in this behalf and she was further informed that the search was required to be conducted and if she desires the search to be conducted in presence of Gazetted Officer or Magistrate, then she had the option, however, she did not opt for the same and stated that the search could be conducted by the Officers of the NCB. From the personal search, nothing objectionable was found, but there was a cupboard in the room and from the cupboard, one parcel was found. When the parcel was opened, a blackish green substance was found. Conducting the field testing, it was found to be Charas. Gross weight of Charas was 556 gm. and its net weight was 523 gm. Two samples were collected and the same were duly packed and sealed. Seizure panchnama, Exh.129 was drawn. The evidence of PW-3 Intelligence Officer Mr.Lodha, Exh.128 is duly corroborated in all material particulars by the evidence of Panch PW-4 Harshad Jadavji, examined at Exh.150 and the panchnama, Exh.129.
On behalf of the appellant, it was strenuously submitted that the prosecution miserably failed to prove a very important fact that the premises at the Navsari from where four packets of Charas were seized and the premises at Ahmedabad from where also Charas was seized, were either owned by the accused No.1 Ketan Patel and accused No.4 Nituben Salimbhai or that they were in exclusive possession of the respective premises. However, in this respect, considering the evidence of the NCB Officers and the Panchas, so far as Navsari raid is concerned, it has come in evidence that at the time when the raid was conducted in 101, Chitrakoot Apartment, Kadiawad, Navsari, accused No.1 Ketan Patel was found in the house and it was he who had opened the door. Considering the secret information, Exh.45, it clearly transpires that the information was containing the name of the accused No.1 Ketan Patel and that he was to receive the consignment of Charas at his house 101, Chitrakoot Apartment, Navsari. Moreover, in this respect, considering the statement, Exh.59 of the accused No.1 Ketan Patel recorded u/s.67 of the NDPS Act, it is explicitly stated that in the house, accused No.1 Ketan Patel was residing and the same was used for storing the contraband substance and the same was distributed from said house.
13.1 So far as Ahmedabad raid is concerned, considering the evidence on record, when the Officers of the raiding party along with Panchas reached to the place of information i.e. B/31/Kubernagar, Ahmedabad, accused No.4 Nituben, wife of accused No.3 Abdul Salim @ Salimbhai was found in the house. Furthermore, in this respect, considering the statement of accused No.3 Abdul Salim @ Salimbhai, Exh.58 recorded u/s.67 of the NDPS Act and the statement of accused No.4 Nituben, Exh.131, recorded u/s.67 of the NDPS Act, not only they admitted the possession of the house in Ahmedabad, but, they stated that they were doing the business of selling Charas in the house. When such is the situation, we are of the considered opinion that the prosecution successfully established the nexus between the accused No.1 Ketan Patel and the house at Navsari and the nexus between accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben with the house in Ahmedabad. The contention, therefore, raised on behalf of the appellants that the prosecution failed to adduce any evidence to connect the accused persons with the respective premises, deserves to be discarded.
However, on behalf of the appellants, reliance was placed upon the case of Om Prakash @ Baba Vs. State of Rajasthan, 2009 AIAR (Criminal) 818. Considering the facts of the said case, the concerned Police Officers had gone to the house of appellant Om Prakash not on the basis of any prior information regarding any contraband substance under the NDPS Act, but to arrest one accused, namely, Pankaj. However, while conducting search in the house, huge quantity of Charas, opium and Gaanja were recovered. Moreover in said case, a prosecution witness PW-3 categorically deposed that the house from where the contraband substances were recovered belonged to another person and not the appellant Om Prakash. There was no evidence of any exclusive ownership of Om Prakash of the house. Ultimately, Hon'ble the Apex Court came to the conclusion that the ownership and possession of the house and the place of recovery was uncertain. Now, the facts of our case are totally different. As stated above in our case, all the witnesses examined by the prosecution including the Panchas categorically connected the respective accused with the respective premises raided by them. Furthermore, in the instant case, the raid was carried out pursuant to the clear and cogent prior information connecting the respective accused with the respective premises. Under such circumstances, as stated above, in the instant case, the contention raised by the appellants that the prosecution failed to establish their connection with the respective premises deserves to be discarded.
As stated above from the evidence on record, the purpose as to why at the time of the raid accused No.3 Abdul Salim @ Salimbhai was found in the house of accused No.1 Ketan Patel is duly established. On behalf of the appellants a contention was raised that the accused Nos.1 and 3 cannot be said to be in conscious possession of Charas lying in the house at Navsari. To deal with this submission, as stated above, at the time when the raid in Chitrakoot Apartment was conducted, both the accused along with absconding accused Mahmed Ramzan were found in the house. The evidence on record as well as the statements recorded u/s.67 of the Act of the accused reveals that the accused Nos.1 and 3 were not strangers to each other. In past they had a transaction of Charas. However, on behalf of the appellants, reliance was placed upon the case of A.K. Mehabood Vs.Intelligence Officer, Narcotics Control Bureau (2001)10 SCC 203. Considering the facts of the said case, it reveals that appellant Mehaboob was present in the house of co-accused Naushad and at that time a raid was conducted in the house of co-accused Naushad and 251 gm. of brown-sugar had been recovered, statements of the accused u/s.67 of the NDPS Act were recorded. So far as the appellant A.K.Mehaboob was concerned, his statement u/s.67 of the NDPS Act, did not contain any incriminating material, which would involve him either in a conspiracy or in an abetment for the offences committed by the other accused. Moreover, from his statement it was revealed that he was only informed by co-accused Naushad that brown-sugar could be supplied to him and, therefore, he went to the house of Naushad in response to that. Nothing revealed that appellant Mehabood parted with any money as consideration of the contraband article. Hon'ble the Apex Court further noted that price of 1 kg. of brown-sugar ranges from Rs.75,000 to Rs.95,000/-. It was observed that if the appellant Mehaboob had gone to purchase it, it cannot be believed that he would have gone without any cash with him. The facts of our case are totally different. The statements of the accused recorded u/s.67 of the NDPS Act, in the instant case, contained clear inculpatory materials. Moreover, in the instant case, there is nothing that on 27.5.2002, when the accused No.3 Abdul Salim @ Salimbhai was found in the house of the accused No.1 Ketan Patel, that was the first meeting with Ketan. The materials available on record reveals that in past there was transaction of Charas between them. It is true that during the personal search of accused No.3 Abdul Salim @ Salimbhai, small cash amount was found. Considering the statement recorded u/s.67 of the NDPS Act, it clearly reveals that the transaction was on credit. It further reveals that, in past, amount of consideration was sent by Angadia (carrier). Thus, the facts of the instant case are completely different than the facts and circumstances and the evidence on record in A.K. Mehaboob's case.
On behalf of the appellants it was urged that in the instant case, the prosecution evidence reveals discrepancy in weight of the contraband substance. In this respect, so far as Charas recovered from Navsari is concerned, as per the oral evidence of NCB Officers and the seizure panchnama, Exh.52, the gross weight of Charas was 13 kgs. 295 gm. and the net weight was 12 kgs. and 899 gm. However, Panch PW-2, Hormez Firoj in his deposition, Exh.125 says that four packets were seized, one packet was weighing approximately 980 gm., 2nd packet was containing approximately 20 gm. to 25 gm. less than 4 kgs. and the 3rd packet contained approximately 3 kgs. of Charas. Then he says that the total weight comes to approximately 13 kgs. He further deposed that the four packets contained in all 135 round shaped lumps (laddu). On behalf of the appellants it was submitted that considering the evidence of Panch Hormez regarding the weight of the contents of each packet, the total comes to about 12 kgs. Now, in this respect, as stated above, Panch PW-2 Hormez in his evidence deposed about approximate weight of the contents of each packet. As admitted by him, he signed the panchnama, Exh.52 wherein it is stated that the gross weight of contents of these four packets was 13 kgs. and 295 gm. and the net weight was 12 kgs. and 899 gm. When such is the situation, we do not find any material discrepancy about the weight in the oral evidence of Panch PW-2 Hormez and in the Panchnama, Exh.52.
16.1 About Ahmedabad recovery, our attention was drawn to two communications, Exhs.172 and 174 addressed to one witness Moin Bapu @ Gaande Bawa of Ahmedabad dated 4.7.2002 and 26.7.2002 respectively by Intelligence Officer PW-5 Vikram Ratnoo, examined at Exh.158. In his communication Exh.172 dated 4.7.2002, it is stated that the communication was pertaining to inquiry about the seizure of 536 gm. of Charas from accused No.4 Nituben whereas in the communication dated 26.7.2002, Exh.174, it is stated that it pertains to inquiry about seizure of 556 gm. of Charas from accused No.4 Nituben. Now, in this case, considering the seizure panchnama, Exh.129, drawn at Ahmedabad in the residence of accused No.4 Nituben and the evidence of Investigating Officer PW-3 Mr.Lodha examined at Exh.128, it clearly transpires that upon weighment of Charas recovered from the house of accused No.4 Nituben, it was transpired that its gross weight was 556 gm. and net weight was 523 gm. In the communications Exh.172 and 174, weight stated comes to 536 gm. and 556 gm. respectively. Both the communications are effected by Intelligence Officer Mr.Vikram Ratnoo. Vikram Ratnoo is PW-5, examined at Exh.158 and we have carefully considered his evidence and during his entire cross-examined, nothing emerges that his attention was drawn to the communications, Exhs.172 and 174 about the discrepancy in weight. Moreover, the discrepancy in weight is well explained, if the evidence of Intelligence Officer Mr.Lodha along with Exh.129 panchnama is considered.
16.2 On behalf of the appellants reliance was placed upon the case of Rajesh Jagdamba Avasthi Vs. State of Goa (2005)9 SCC 773. As per the facts of said case, from the shoe of right foot of the accused 100 gm. of Charas was found which was sealed in envelope 'A', but when the envelope 'A' was opened by FSL, the weight of the substance was found out to be 98.16 gm. From the shoe of left foot of the accused, 115 gm. of Charas was found and the same was sealed in envelope 'B', but when the envelope 'B' was opened, it was found that the weight of the Charas was 82.54 gm. The High Court recorded conviction of the accused regarding the possession of Charas of 100 gm., which was sealed in envelope 'A' discarding the discrepancy in weight in respect of the contents of the envelope 'B' is not considered. Hon'ble Apex Court recording acquittal of the accused held that the discrepancy in weight was not minor discrepancy. No explanation was forthcoming from the evidence on record, regarding the discrepancy. Now, the facts of our case are totally different. As a matter of fact in the instant case, there may not be any material discrepancy about the weight of the contraband substance. So far as Navsari raid is concerned, in the oral evidence of Panch Hormez, he only stated about the approximate weight of the Charas recovered from the house of accused No.1 Ketan from Navsari. So far as Ahmedabad raid is concerned, considering the communications Exhs.172 and 174 addressed only to a witness by Intelligence Officer Vikram Ratnoo, the discrepancy, if any, in the weight of the contraband substance Charas recovered from the house of accused No.4 Nituben from Ahmedabad pales into insignificance because the available evidence on record reveals exact gross weight and exact net weight of the Charas recovered from the house of accused No.4 Nituben.
On behalf of the appellants relying upon the case of E.Micheal Raj Vs.Intelligence Officer, Narcotics Control Bureau reported in (2008)5 SCC 161 it was submitted that in the instant case, as per the report of CRCL Delhi, Exh.184 regarding the purity of Charas allegedly recovered from the house of accused No.4 Nituben, the THC percentage is assessed as 4.1% whereas in the report, Exh.185 of the CRCL Delhi, the Charas allegedly recovered from the house of accused No.1 Ketan contained THC percentage of 3.7%. Therefore, it is submitted that if at all the case of the prosecution is accepted, as it stands and the involvement of the accused is established, yet, considering the total weight of the contraband substance and the percentage of THC arrived at by CRCL, Delhi, together with table contained in the notification attached to the Act and especially considering the Sr.No.23 pertaining to Charas, the small quantity is upto 100 gm. and commercial quantity is above 1 kg. of Charas, and, therefore, it is submitted that in the instant case, the trial Court should have recorded the conviction keeping in mind the small quantity. It is, therefore, submitted that about the small quantity, the sentence prescribed under Section 20 of the Act is imprisonment for six months or fine which may extend to Rs.10000/-
or with both. It is, therefore, submitted that the appellants have already undergone more sentence than what was prescribed for possession of small quantity. Now, in this respect, first of all considering the definition of Cannabis (Hemp) contained under Section 2(iii) of the NDPS Act about Charas, it is defined as the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish . Thus, in the instant case, contraband substance Charas was in its natural form and was not a manufactured drug as defined in Section 2(xi) of Section 2 of the NDPS Act. In Charas, the separated resin may be in any form, whether crude or purified. Furthermore, we have considered the definition of opium defined under Section 2(xv) of the Act and it is defined that the 'opium' means (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but, does not include any preparation containing not more than 0.2 percent of morphine. Now, so far as Charas is concerned, no fixed percentage of THC is prescribed in the definition of Charas like the percentage of morphine prescribed for opium. In this respect, considering the evidence of FSL witness Mr. Jan Mahmad Fakirbhai Mansuri, examined at Exh.263 in this case, in his cross-examination, he has rightly opined that it is not necessary for ascertaining whether a substance is Charas or not that it should contain a specific percentage of THC. Moreover, in the instant case, neither from the report of FSL nor from the report of CRCL, Delhi, it is revealed that in the Charas recovered from Navsari and from Ahmedabad, any neutral substance was mixed. Under such circumstances, the contention raised on behalf of the appellants that considering the percentage of THC, the quantity of Charas falls within small quantity and, therefore, the appellants should have been convicted accordingly for possession of the contraband substance of small quantity is devoid of any merits. Thus, the facts and circumstances and evidence on record in our case are totally different from the facts and circumstances of the case of E.Michael Raj relied upon by the appellants.
The evidence further reveals that soon after the seizure of the contraband substance Charas, the samples and the remaining quantity of Charas duly packed and sealed were deposited in NCB godown. It is further revealed that the samples were received by FSL and CRCL in packed and sealed condition. During the course of evidence of witnesses, muddamal was shown to them and the same was duly identified. When such is the situation, the contention raised by the appellants that there was any possibility of tampering with the muddamal deserves to be discarded.
The submission made on behalf of the appellants that since some of the NCB Officers of the raiding party like Mr.Vikas Ratnoo, did not claim travelling allowance and dearness allowance, and, therefore, the fact that for the purpose of carrying out raid at Navsari, they travelled from Ahmedabad to Navsari and that they stayed in Navsari for couple of days should not be believed. We do not consider such submission to be a material one, which would render the entire prosecution case a doubtful one. Mere fact that some of the Officers did not claim any TA and DA can be said to be insignificant. As revealed from the evidence on record, the Officers travelled in official vehicles and not by train or bus. Therefore, there was no question of claiming any TA. Claim for DA may not be compulsory. The evidence on record clearly suggests that the Officers of the NCB came to Navsari and carried out raid at the house of the accused No.1 Ketan Patel.
About the Ahmedabad raid, it was submitted on behalf of the appellants that over and above accused No.4 Nituben in the house, one lady and one male member were found, yet, only Nituben is arraigned as co-accused. We do not find any substance in the submission for the simple reason that it has come on record that both the accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben were dealing in Charas and they were collecting Charas and were selling Charas. Mere presence of one another lady and a male member of the family in the house cannot be said to be a material circumstance to connect them with the crime. Over and above the recovery of Charas from the house of accused No.4 Nituben, there is her statement recorded by competent Officer under Section 67 of the NDPS Act.
The argument made on behalf of the appellants regarding the statements of the accused recorded u/s.67 of the NDPS Act requires to be dealt with at some length. It is submitted that though on record, the prosecution tried to submit that the statements were recorded before arrest, but as a matter of fact, the accused were already under custody of NCB when their statements were recorded. It is further stated that the statements were recorded under the coercion and the statements were not the voluntary statements of the accused. It is further stated that though the appellant accused No.1, 3 and 4 during course of recording of evidence, did not retract their confessional statements, but in their further statements recorded under Section 313 of the Cr.P.C., they clearly retracted their statements. So far as accused No.5 Naseebbanu Pathan is concerned, it is submitted that even during the course of trial, she had forwarded the writing through jail, stating that her statement was recorded by using coercive tactics. Moreover, it is submitted that the bare statement can never be a base for conviction. If the statement is found to be free from any coercion, undue influence or promise and is found to be voluntary, then also, the same is required to be corroborated by other evidence on record.
21.1 Now, as revealed from the evidence on record, so far as appellant accused No.1 Ketan Patel is concerned, on 27.5.2002, his statement, Exh.59 was recorded by Intelligence Officer PW-1 Mr.S.S.Singh. The statement was recorded in Navsari circuit house. As revealed from his evidence, the statement, Exh.59 is in the handwriting of the accused Ketan Patel himself. So far as appellant accused No.3 Abdul Salim @ Salimbhai is concerned, his statement was recorded on 27.5.2002, Exh.58 by Intelligence Officer PW-1 Mr.S.S.Singh at Navsari circuit house. The statement of appellant accused No.4 Nituben Salimbhai was recorded on 27.5.2002 at NCB office, Ahmedabad by Intelligence Officer PW-3 Mr.S.J.Lodha, which is produced at Exh.131 and Mr.S.J.Lodha also recorded further statement of Nituben on 28.5.2002 at NCB office, Ahmedabad, which is produced at Exh.137. PW-3 Mr.S.J.Lodha also recorded statement of appellant accused No.5 Nasibbanu on 28.5.2002 at Ahmedabad NCB office which is produced at Exh.135. Except the statement, Exh.59 of accused No.1 Ketan Patel, the rest of the above-referred statement are in the handwriting of the concerned recording Officers. The concerned Officers have also recorded the statements of accused No.2 Habibkhan (now deceased) as well as of absconding accused Mahmed Ramzan as well as two witnesses of Angadia firm. At present we are concerned with the statements of the appellant accused persons. We have taken into consideration even the original statements of the appellant accused produced at Exhs.58, 59, 131, 135 and 137 from the record and proceedings of the trial Court. In connection with those statements, the concerned Intelligence Officers who recorded those statements were examined as witnesses in this case. We have carefully gone through the evidence of the Intelligence Officers, namely, PW-1 Mr.S.S.Singh and PW-3 Mr.S.J.Lodha. From their depositions, it clearly reveals that before recording those statements, the concerned accused was apprised of the facts that he was not bound to make any statement and if he makes any statement, same can be used against him and against other persons. If we read those statements, opening paragraph clearly reveals that the maker of the statement was apprised about the same. Furthermore, considering those statements of the appellants accused, it further transpires that the statements contained minute details regarding their family and their academic background which can be said to be only within the exclusive knowledge of the maker only. This rules out the possibility of concoction. If at all the Officer of NCB intended to concoct a false statement, such statement would not have contained such material which was within the exclusive knowledge of the maker of the statement. All the above-referred statements containing more than one pages bear signatures of the respective appellants accused persons as well as countersigned by the respective Officer, who recorded statement.
The bare reading of Section 67 of the NDPS Act reveals that an empowered Officer as empowered u/s.42 of the Act may during the course of an inquiry in connection with the contravention of any provisions of this Act, call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder. He may require any person to produce or deliver any document relevant to the inquiry. He may also examine any person acquainted with the facts and circumstances of the case.
22.1 Considering the case on Kanaiyalal Vs. Union of India (2008)2 SCC (Cr.) 474, Hon'ble Apex Court dealing with the provisions contained u/s.67 of the Act held that the statement contemplated u/s.67 of the Act, is not the same as statement under Section 161 of the Cr.P.C. . The Hon'ble the Apex Court further held that the consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In para 41 of the judgment, Hon'ble the Apex Court, considering the similar provisions in other statutes held that at the stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him, he could be made an accused subsequently . It is further held that as long as such statement was made by the accused at the time he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operated nor would the provisions of Article 20(3) of the Constitution be attracted . Moreover, considering said case, it further transpires that the confessional statement was retracted by the accused immediately after its recording. Hon'ble Apex Court about the retraction of confessional statement in para 47 of the judgment observed that though an appilcation was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial, so as to water down the evidential value of said statement . Ultimately, in the said para 47, Hon'ble the Apex Court held that since a conviction can be maintained solely on the basis of such confession made u/s.67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant.
22.2 Now, applying the ratio laid down by the Hon'ble the Apex Court in Kanaiyalal's case, it becomes clear that while appreciating the evidence in form of statement u/s.67 of the Act, the prime duty of the Court shall be to ascertain as to whether statement is voluntarily made by the accused or not. In the instant case, considering the overall evidence on record, nothing emerges that the statements are outcome of any coercive tactics adopted by the concerned Officer of the NCB. Though it is submitted that so far as the appellant accused No.5 Naseebbanu is concerned, through jail, she forwarded an application to the Court of learned CJM retracting her confession. Nothing is pointed out as to ultimately, what was the order passed by the concerned Court in said application. Moreover, it transpires from the evidence on record that at the time when the statements of the appellants accused were recorded they were not arrested. Though statements of appellant accused Nos.1 and 3 were recorded at Navsari circuit house and the statements of appellants accused Nos.4 and 5 were recorded at NCB Office, Ahmedabad, but at that time, they were not arrested by the concerned NCB Officers. Considering the ratio laid down in Kanaiyalal's case, it is observed by Hon'ble Apex Court that at that stage, the person concerned is not an accused and that he may be said to be in custody . Mere custody does not mean that said person is duly arrested and kept in custody. To put it differently, in the instant case, nothing is revealed that the statements are post arrest confessional statements of the appellants. In the instant case, the evidence on record further reveals that after recording of their statements, the accused were produced before concerned Judicial Magistrate. Nothing comes out from the evidence on record that at that time any of the accused made any complaint against any of the Officers of the NCB about the ill-treatment meted out to the accused or any coercive tactics adopted by the Officers while recording their statements. After the oral evidence led by the prosecution was concluded, the trial Court recorded further statements of the accused and during the course of their further statements recorded u/s.313 of the Cr.P.C., the accused retracted their confessional statements. It is further pertinent to note that in the oral evidence of concerned Intelligence Officer who recorded the statements, nothing is revealed that any coercive tactics were adopted while recording the statements. Considering their depositions on this point, no effective cross-examination appears to have been made on behalf of the accused and almost similar was the situation if Kanaiyalal's case is considered. The trial Court in the impugned judgment, therefore, rightly came to the conclusion that the appellant accused made voluntary statements under Section 67 of the NDPS Act. We have independently examined such conclusion arrived at by the trial Court and we are satisfied that the trial Court rightly came to such conclusion.
On behalf of the appellants, case of Noor Aga Vs. State of Punjab reported in 2008(9) SCALE 681 was relied upon. However, considering the facts and circumstances of the said case, appellant Noor Aga, when he arrived at the airport, at that time, concerned Customs Officer carried on search of the belongings of the appellant and contraband substance was found. In the said case, the prosecution did not produce the physical evidence before the trial Court particularly the sample of the purported contraband material. No independent witnesses were examined. There was huge discrepancy in the evidence of official witnesses in regard to search and seizure. The confessional statement of the appellant was recorded u/s.108 r/w.Section 138(B) of the Customs Act, 1962. In that background, Hon'ble Apex Court allowed the appeal and recorded acquittal of the appellant. Now, in the instant case, no such infirmities are there as were there in Noor Aga's case. We do not find any material discrepancy in the evidence of the NCB Officers examined in the instant case. Moreover, in the instant case, the concerned NCB Officers recorded the statements of the appellants accused u/s.67 of the NDPS Act.
23.1 On behalf of the appellants, case of Union of India Vs.Bal Mukund & Ors.
2009(2) Supreme 170 was relied upon. In said case, the statements of the appellants accused were recorded u/s.67 of the NDPS Act. Considering the facts of said case, Hon'ble Apex Court considered the infirmities in the prosecution case. There was outright non-compliance of the mandatory provisions contained u/s.42 of the Act. During the course of trial before the trial Court, the confessional statements were retracted. It was further observed that the confession of accused u/s.67 of the NDPS Act does not bind his co-accused. In said background and considering the peculiar facts and circumstances of the said case and the infirmities emerged from the evidence on record, Hon'ble Apex Court held that the conviction should not be based merely on the basis of a confessional statement without any independent corroboration. Now, the facts of our case are totally different. In our case, as stated above, no mandatory requirements laid down under the Act have been violated by the NCB Officers. Nothing transpires that the evidence of the NCB Officers suffers from material discrepancy or infirmity. In the instant case, there is nothing that the statement of co-accused is used while recording the conviction. All the appellants accused individually made their statements u/s.67 of the NDPS Act before the concerned authorities.
23.2 Under such circumstances, considering the facts and circumstances of the instant case and considering the facts and circumstances and evidence in Kanaiyalal s Case (supra), we are of the considered opinion that the statements recorded under Section 67 of the NDPS Act of the appellants accused deserve to be considered. Nothing transpires that the statements are outcome of any coercion, undue influence or any promise. On behalf of the appellants case of Raju Premji Vs.Customs NER Shillong Unit reported in 2009 AIAR (Cr.) 531 is relied upon. However, considering the facts of the said case, which was arising under this Act, the search of accused persons was conducted without complying with Section 50 of the Act. The accused persons were not actually found in possession of any contraband. Moreover, when the statements of accused persons were recorded, they were in police custody. Hon'ble the Apex Court in paragraph 19 observed that statement made by them while in custody of Police Officer would be inadmissible in evidence. In paragraph 23 of said judgment, Hon ble Apex Court further observed that where a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case . Thus, the facts of our case are totally different. In the present case, nothing transpires that at the time when the statements of the appellants accused were recorded under Section 67 of the Act, they were in police custody or that they were actually arrested. To put it differently, there is nothing that statements were post arrest statements.
23.3 On behalf of the appellants, judgment dated 21.12.2009 delivered in Criminal Appeal No.488 of 2006 with Criminal Appeal No.568 of 2006 with Criminal Appeal No.799 of 2007 delivered by this Court (Coram:
A.L.Dave and H.N.Devani, JJ.) in the case of Zarina Gulam Haji Bhat & Ors. Vs. State of Gujarat & Ors. Is relied upon.
However, considering the facts of said case, it transpires that original accused No.1 Abdul Sheikh was intercepted by NCB Officers while he was driving the truck and from the secret compartment of the truck, Charas was seized. In his statement recorded u/s.67 of the NDPS Act, he only stated that he was to deliver Charas to accused No.2 Suresh Gupta and accused No.3 Zarina at Mumbai. The statement did not reveal any further details of Suresh and Zarina. The statement was recorded in NCB Office Ahmedabad on 6.1.2002 and on next day i.e.7.1.2002, Suresh and Zarina were picked up from Bombay. It further transpires from the facts of said judgment that Zarina was already undergoing a sentence and she was already confined to jail in Bombay. The statement of accused No.1 Abdul Sheikh did not contain any details except the first name of Suresh and Zarina. The NCB Officer who picked up co-accused Suresh and Zarina was not examined as witness. This Court, therefore, came to the conclusion that it was not safe to convict a person on the basis of statement of co-accused only when their initial identity and thereby nexus with the crime is not properly established. Under such circumstances, ultimately, the conviction of accused No.1 Abdul Sheikh recorded by the trial Court was confirmed and his appeal came to be dismissed. However, the appeal preferred by appellant original accused No.2 Zarina Gulam Haji Bhat and appellant original accused No.3 Suresh Gupta came to be allowed and they were ordered to be acquitted. The facts of our case are totally different. In the instant case, the statement of accused No.1 Ketan Patel recorded in 1st point of time on 27.5.2002, Exh.59 contained all the details regarding co-accused. So far as accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben are concerned, they are husband and wife. Accused No.3 Abdul Salim @ Salimbhai was found in the house of the accused No.1 Ketan Patel. The raid was carried out at Navsari. Accused No.3, Abdul Salim @ Salimbhai in his statement, Exh.58 provided all the details about the name and full address of his wife accused No.4 Nituben and accordingly, the Intelligence Officer PW-3 Mr.Lodha raided the house of accused Nos.3 and 4 at Ahmedabad and Charas was recovered.
Statement u/s.67 of the Act of accused No.4 Nituben was also recorded subsequent to the recovery of Charas from her house at Ahmedabad.
On behalf of the appellant accused No.5, Naseebbanu, it was vehemently submitted that so far as accused No.5 Naseebbanu Pathan is concerned, she is convicted by the trial Court solely on the basis of her statement, Exh.135 allegedly recorded by Intelligence Office of NCB PW-3 Mr.Lodha on 28.5.2002. Nothing objectionable was recovered from her or from her house. However, perusing the evidence of NCB Officers examined in this case, together with the statement of accused No.4 Nituben, recorded u/s.67 of the Act, Exh.137, it clearly transpires that the Charas which was seized from her house was supplied to her by accused No.5 Naseebbanu. In her statement, Exh.135, she identified the accused No.4 Nituben as the lady to whom Charas was supplied by her. She further stated that prior to this, for about 10 times, Charas was supplied by her to accused No.4 Nituben. We have seen that all the statements of the appellant accused persons, including the statements of accused No.5 Naseebbanu are voluntarily made by them and the statements are not outcome of any coercion, threat or promise. It is pertinent to note that accused No.5 Naseebbanu is not convicted merely on the basis of statement of co-accused No.4 Nituben.
Her own statement was also recorded. Her statement also gets corroboration by the evidence regarding the recovery of Charas from the house of accused No.4 Nituben, which, before a week she had supplied to Nituben.
In the result, we are, therefore, of the considered opinion that the trial Court rightly relied upon the statements of the appellants accused recorded under Section 67 of the NDPS Act.
On behalf of the appellants, it is submitted that as per the prosecution case, Charas was recovered from Navsari as well as from Ahmedabad. It is submitted that about the Charas recovered from Navsari, a separate trial should have been conducted in the competent Court at Navsari and about the Charas recovered from Ahmedabad, again a separate trial should have been conducted at Ahmedabad, but in the instant case, a joint trial was conducted at Navsari even regarding the recovery of Charas from Ahmedabad. It is further submitted that the original accused Nos.1,2,3 and 4 came to be convicted for the offences regarding Charas recovered from Navsari as well as the original accused Nos.3 and 4 were again convicted regarding the recovery of Charas from Ahmedabad. That, thus, the joint trial itself was material irregularity committed by the trial Court and recording conviction of original accused No.3 Abdul Salim @ Salimbhai and original accused No.4 Nituben twice can be said to be further irregularity as well. Now in this connection, considering the facts of the present case, it clearly transpires that the initial information was received by the concerned Officer of the NCB regarding Charas in the house of accused No.1 at Navsari. At the time of the raid being carried out in the house of accused No.1 at Navsari and when the Charas was found from his house, at that time accused No.1 Ketan Patel, accused No.3 Abdul Salim @ Salimbhai and absconding accused Mahmed Ramzan were found. From the statements of the accused Nos.1 and 3, it was revealed that accused No.4 Nituben, resident of Ahmedabad and the wife of accused No.3 Abdul Salim @ Salimbhai was also dealing in Charas at Ahmedabad and as a matter of fact, the accused No.3 Abdul Salim @ Salimbhai had come to Navsari at the place of accused No.1 Ketan Patel for the purpose of getting 4 kgs. of Charas. On the basis of said statement, raid was conducted at Ahmedabad and from the house of accused No.3 Abdul Salim @ Salimbhai and accused No.4 Nituben, Charas was found. The trial Court in the impugned judgment held that the offence was continuous offence and the offences which were committed though at different places, but in the course of the same transaction. In this connection, considering the Sub-clause (d) of Section 178 of the Cr.P.C., it is provided that where it consists of several acts done in different local areas, It may be inquired to or tried by a court having jurisdiction over any of such local areas. Moreover, Sub-Clause (d) of Sectoin 223 of the Cr.P.C. prescribes that person accused of different offences committed in the course of the same transaction, may be charged and tried together. Moreover, in the instant case, it is pertinent to note that the trial Court recorded conviction of the appellant accused persons regarding offences arising under the NDPS Act read with Section 29 of the Act. Relevant part of Section 29 of the Act runs as under:-
Section 29 Punishment for abetment and criminal conspiracy (1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.(2)
A person abets.....
In the instant case, as emerged from the evidence on record, the offence which was committed at Navsari and the offence which was committed at Ahmedabad were part and parcel of a criminal conspiracy regarding trafficking of Charas by the appellants accused. The trial Court in the impugned judgment assigning cogent and convincing reasons, discarded the identical contention raised on behalf of the accused that the joint trial was illegality. Considering the facts and circumstances of the case as well as the relevant provisions contained under the Cr.P.C. and the NDPS Act, as discussed above, we do not find any illegality or any irregularity in the conclusion arrived at by the trial Court that the joint trial was permissible and cannot be termed to be illegality. When such is the situation, we are of the considered opinion that the conviction recorded by the trial Court so far as original accused No.3 Abdul Salim @ Salimbhai and original accused No.4 Nituben regarding the offence of recovery of Charas at Navsari and the offence of recovery of Charas at Ahmedabad cannot be said to be illegal. It is further pertinent to note that original accused No.5 Naseebbanu is not convicted for the offence of recovery of Charas at Navsari. Considering the overall evidence on record as well as the statements of the appellants accused recorded under Section 67 of the NDPS Act, nowhere it emerges that she was in any respect connected with the Charas recovered at Navsari. Her conviction is recorded by the trial Court only regarding the offence pertaining to the Charas recovered at Ahmedabad.
On behalf of the appellants it was further submitted that if the statements of the appellants recorded under Section 313 of the Cr.P.C. are considered, almost identical questions were put to all the accused irrespective of fact whether particular question was relevant to particular accused or not and thereby a prejudice was caused to the accused. We have minutely taken into consideration the further statements of the accused recorded by the trial Court under Section 313 of the Cr.P.C. However, considering the further statements, it appears that entire material emerged from the evidence on record and used against them was put to all the accused persons, and nothing is specifically indicated that any material ultimately used by the trial Court while recording the conviction of the accused was not put to him and he was not given any opportunity to explain such material and his conviction was recorded. However, we do not find any illegality or any infirmity committed by the trial Court while recording the further statements of the accused under Section 313 of the Cr.P.C.
On behalf of the appellants, it was submitted that the trial Court misinterpreted the provisions regarding the presumption contained under Section 35 and Section 54 of the NDPS Act. Section 35 of the Act pertains to presumption of culpable mental state and Section 54 pertains to presumption from possession of illicit articles. It is submitted that straightway presumptions cannot be raised and initial burden lies upon the prosecution to prove its case beyond any reasonable doubt. In this connection, considering the facts and circumstances and evidence on record in the instant case, we are of the considered opinion that the initial burden about proving the case beyond any reasonable doubt has properly been discharged by the prosecution. The prosecution proved beyond reasonable doubt the nexus and connection of the appellants accused with the contraband article Charas. Once the initial burden is discharged, the trial Court rightly raised the presumption regarding the culpable mental state and the presumption contained under Section 54 of the Act. Considering the provisions contained under Section 54 of the Act, it is clear that once the prosecution adduced evidence, connecting the accused with the contraband substance under the Act and the evidence is found to be beyond any reasonable doubt, the burden shifts upon the accused to satisfactorily account for said possession. In the instant case, the only defence raised by the appellants accused is of bare denial. To put it differently, the presumption contained under the Act has not been duly rebutted by the accused.
In light of the entire above discussions, therefore, we are of the considered opinion that the trial Court rightly recorded the conviction of the appellants accused for the offences charged against them. The appellants accused Nos.1, 3 and 4 are convicted of the offences pertaining to commercial quantity of contraband substance Charas and the trial Court, therefore, rightly awarded the minimum sentence prescribed under Section 20(b)(ii)(c) of the NDPS Act and rightly awarded the sentence of R.I for ten years and fine of Rs.1 Lac.
30.1 Moreover, along with appellant original accused No.5 Naseebbanu, the appellants accused Nos.3 and 4 are convicted of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act regarding the recovery of Charas at Ahmedabad from their house. The Charas recovered was more than the small quantity, but lesser than the commercial quantity as prescribed under the NDPS Act. As discussed above in this judgment, the trial Court rightly recorded conviction of appellants accused Nos.3 and 4 for intermediate quantity of Charas recovered from their house at Ahmedabad and rightly awarded the sentence accordingly. The trial Court has also directed that the sentences of imprisonment shall run concurrently. However, so far as appellant accused No.5 Naseebbanu Pathan is concerned, her conviction is recorded for the offence under Section 20(b)(ii)(B) of the NDPS Act wherein no minimum sentence is prescribed and the said offence is punishable with R.I for a term which may extend to ten years and with fine, which may extend to Rs.1 Lac. She is convicted for the offence of recovery of Charas which was though more than small quantity, but lesser than commercial quantity. It is further pertinent to note that pending the appeal, appellant original accused No.5 Naseebbanu Yusufkhan Pathan by order dated 18.9.2008 in Criminal Misc.Application No.10718 of 2008 came to be released on bail and her sentence was ordered to be suspended and at the time when she was released on bail, she had already undergone imprisonment of six years and three months out of the total imprisonment of seven years awarded to her. Learned advocate Mr.Agrawal for the appellant accused No.5 Naseebbanu stated at bar that she had already deposited the amount of fine of Rs.50000/- awarded by the trial Court. Considering the facts and circumstances of the case, it would be in the fitness of the things, if the sentence of imprisonment awarded to her by the trial Court is altered to the period already undergone by her in jail. The appellants are also convicted for the offences punishable under Section under Sections 25 and 29 of the NDPS Act. However, no separate sentences are provided for the offences and they are punishable with the punishment provided for principal offences. Accordingly, for principal offences, the trial Court has awarded the sentences in accordance with the quantity of Charas seized, as discussed above.
In the result, the appeals preferred by appellants accused Nos.1, 3 and 4 bearing Criminal Appeal Nos.718 and 994 of 2007 are devoid of any merits and deserve dismissal. The appeal preferred by appellant accused No.5 deserves to be partly allowed only to the extent of the sentence, maintaining her conviction recorded by the trial Court.
For the foregoing reasons, Criminal Appeal No.718 of 2007 and Criminal Appeal No.994 of 2007 stand dismissed.
Criminal Appeal No.1440 of 2008 is partly allowed. The conviction of appellant original accused No.5 Smt.Naseebbanu Yusufkhan Pathan recorded by learned Additional Sessions Judge, 2nd Fast Track Court, Navsari on 29.11.2006 in Special NDPS Case No.1 of 2003 for the offences punishable under Sections 8(c), 20(b)(ii)(b), 25 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is maintained. However, the sentence of imprisonment of R.I for seven years awarded to the appellant original accused No.5 Smt.Naseebbanu Yusufkhan Pathan is altered to the period already undergone by her in the jail, maintaining the order of fine. Since she has already deposited the fine, she is not required to surrender to jail. Her bail bonds shall stand cancelled.
(Ravi R.Tripathi, J.) (J.C. Upadhyaya, J.) (binoy) Top