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Judgment
A.L. Dave, J.—These three appeals arise out of a judgment and order rendered by learned Additional Sessions Judge, Fast Track Court No. 3, Ahmedabad (Rural) in Special NDPS Case No. 6 of 2002 on 24.1.2006 convicting the appellants for offences punishable u/s 20(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the NDPS Act'').
The appellants were the persons accused before the trial court where the appellant in Criminal Appeal No. 779 of 2007 Abdul Ahad Shaikh was accused No. 1, the appellant in Criminal Appeal No. 568 of 2006 Suresh Sakhraj Gupta was accused No. 2 and the appellant in Criminal Appeal No. 448 of 2006 Smt. Zarina Haji Gulam Bhat was accused No. 3. For sake of convenience they are referred to in this judgment as accused with their respective numbers.
These appeals since arise out of the same judgment are heard and disposed of by this common judgment.
The facts of the prosecution case in brief are that Intelligence Officer Mr. Vikram Ratnoo of NCB, Ahmedabad received an information that a Kashmiri person is to transport contraband charas in a Truck bearing No. JK-03-358 from Kashmir to Mumbai. He would be passing by Ahmedabad and that the contraband would be concealed in a secret compartment in the Driver''s cabin. On basis of this report, a watch was arranged Near Narol Cross-Roads at National Highway No. 8. On 6.1.2002 at about 5.00 p.m., Truck No. JK-03-358 was intercepted by them and it was found that accused No. 1 - Abdul Ahad Shaikh was driving the same. He was questioned and ultimately contraband charas was seized from a compartment below the ceiling of the truck cabin. A total quantity of charas seized was 86.586 kg packed in 24 packets. The truck was then taken to the NCB Office and a detailed panchnama was drawn. Samples were drawn and then samples as well as the remainder of the contraband seized was sealed. A statement of accused No. 1 was recorded by the Officers of the NCB, Ahmedabad in exercise of powers u/s 67 of the NDPS Act.
2.1 On basis of the information divulged by accused No. 1 in the said statement, Mumbai office of NCB was informed. The officers of the NCB were also deputed and it emerges that the NCB Officers of Mumbai picked-up accused No. 2 from his brother''s house on 8.1.2002. The statement was recorded on 9.1.2002 in exercise of powers u/s 67 of the NDPS Act. He was produced before the Court on 10.1.2002 at Mumbai and was brought to Ahmedabad under a transfer warrant. After being brought to Ahmedabad, his statement was recorded again by NCB Officers of Ahmedabad. On 11.1.2002 he came to be arrested in this offence thereafter.
2.2 On basis of what was divulged by accused No. 1 in his statement u/s 67 of the NDPS Act, accused No. 3 came to be arrested in the month of May 2002 from prison at Mumbai while she was undergoing a sentence.
Accused No. 3 on being produced before the Sessions Court retracted her statement, and stated that it was obtained under coercion. However, Accused No. 2 did not retract the statement nor accused No. 1 has retracted the statement.
3.1 Charge was framed against the accused persons by Exh.8 for offences punishable u/s 8(c) read with Section 29 and Section 20(b) read with Section 29 of the NDPS Act to which they pleaded not guilty and came to be tried.
3.2 The trial court after considering the evidence led by the prosecution convicted all the three accused persons for offences punishable u/s 8(c) and 20(b) both read with Section 29 of the NDPS Act, and sentenced all of them to undergo R.I. for 14 years with a fine of Rs. 1,50,000/- each, in default to undergo S.I. for two years. Benefit of set-off was given to the accused persons.
Accused No. 1 is represented by learned advocate Mr. R.M. Agrawal, Accused No. 2 is represented by learned Counsel Mr. J.B. Pardiwala appearing with learned advocate Mr. Harshit Tolia and Accused No. 3 is represented by learned advocate Mr. D.R. Bhatt. The State is represented by learned Additional Public Prosecutor Mr. Maulik G. Nanavati and the NCB is represented by learned Counsel Ms. Vasavdatta Bhatt.
4.1 Learned advocate Mr. R.M. Agrawal appearing for A-1 submitted that the trial court has committed error which recording statement u/s 313 of the Code of Criminal Procedure (for short ''Cr.P.C.''), and has put questions not relating to A-1. This would vitiate the trial on account of defect in recording of the statement. It is submitted that the statement recorded u/s 67 of the NDPS Act cannot be a solitary ground for recording conviction. Statement, though, it is considered a substantive piece of evidence has to be assessed in the manner as a substantive piece of evidence i.e. regarding the genuineness and trustworthiness more so when there is no other evidence.
4.2 Mr. Agrawal, learned advocate also submitted that there is a dispute as regards purity of the contraband as no specific and reliable evidence is adduced by the prosecution relating to the purity of the contraband seized. It is submitted that the A-1 has been implicated by the Officers of the NCB to shield the real culprit. A-1 neither knows driving nor he is a driver nor does he possess a driving licence.
4.3 Mr. Agrawal, learned advocate submitted that the investigating agency has roped in the accused persons but not the real culprits. It is also submitted that the muddamal and samples were not kept in a proper and safe custody.
4.4 Mr. Agrawal, learned advocate submitted that accused No. 1 cannot be said to have conscious possession of contraband because it was concealed in a compartment.
The trial court founded conviction mainly on the basis of the statement recorded u/s 67 of the NDPS Act. A statement recorded u/s 67 of the NDPS Act cannot be the basis of conviction, it can only lend corroboration at the best. The Court ought to have addressed itself on question as to truthfulness and genuineness of the statement u/s 67 of the NDPS Act. Mr. Agrawal, learned advocate also submitted that the statement recorded u/s 67 of the NDPS Act cannot be considered as evidence u/s 30 of the Evidence Act since it is not collected during the course of investigation. It is submitted that only with a view to save itself from the clutches of the judicial pronouncement A-1 was not arrested, though, even as per prosecution case, he was found in possession of contraband but his arrest shown only after recording the statement u/s 67 of the NDPS Act. It was submitted that the Standing Instructions on drawal and packing etc., of samples is not followed by the agency. Mr. Agrawal, therefore, submitted that the trial court has committed an error in recording conviction, and therefore, the appeal may be allowed.
Mr. J.B. Pardiwala, learned Counsel appearing with Mr. Harshit Tolia, learned advocate for A-2 submitted that the trial court has committed a serious error in relying on confessional statement of the A-2 recorded u/s 67 of the NDPS Act. The Court ought to have marshalled the evidence first against the A-1 and then examined whether the conviction can be safely founded on it. When the evidence was found to be capable of being believed independent of the confessional statement then it may not rely on confession. However, if the Court is not prepared to act on the other evidence, the Court would look at such confessional statement for drawing support.
6.1 It was then contended that the trial court started with the confession and then looked for the evidence to corroborate the contents of the confession, the approach is not legal. The reason for arrest of the accused were not disclosed. A-2 was picked-up from his brother''s residence at Mumbai by the Officers and he was picked up without any valid summons u/s 67 of the NDPS Act. The fact of recording of statement u/s 67 of the NDPS Act at Ahmedabad after the arrest of the accused would be hit by Section 25 of the Evidence Act. It has come on evidence of P.W.3 that A-2 was in the custody of NCB at Ahmedabad.
6.2 Confessional statement of accused/appellants are not admissible in evidence. This aspect has not been considered by the trial court. It was submitted that when the statements were recorded, A-2 was not arrested. He was, however, under the control of NCB Officers, therefore the statement recorded cannot be considered as a free or a voluntary statement u/s 67 of the NDPS Act. Lastly, it is contended that Section 53 of the Act empowers the NCB Officials with the powers of the Station House Officers, and by virtue of the special statute, they are, therefore, deemed to be Police Officers for the purpose of Section 25 of the Evidence Act.
6.3 Mr. Pardiwala, learned Counsel relied on the following decisions:
(i) Noor Aga v. State of Punjab and Anr. reported in 2008 (3) GLH 43.
(ii) Najmunisha Vs. State of Gujarat,
(iii) Union of India v. Bal Mukund and Ors. reported in AIR 2009 SCW 2604.
(iv) Raju Premji v. Customs NER Shillong Uni reported in AIR 2009 SCW 4228.
6.4 Relying upon the aforesaid decisions, it is submitted that the appeal may be allowed and the conviction may be set aside.
Learned advocate Mr. D.R. Bhatt submitted that arrest of A-3 was made in the month of May 2002. At that point of time A-3 was an under-trial prisoner. At and around time on which the contraband was seized, A-3 was in jail and the prosecution theory of delivering charas to her therefore would get falsified. Mr. Bhatt further submitted that there is no recovery and/or discovery by A-3. It was submitted that A-3 has retracted her statement almost immediately on being produced before the Criminal Court. There is no evidence led by the prosecution to show hatching of any conspiracy to attract Section 25 of the Evidence Act.
Learned Additional Public Prosecutor Mr. Maulik Nanavati submitted that Section 67 of the NDPS Act can be basis for conviction as held by this Court in several judgments. He also submitted that the evidence of the Officers of the NCB would show that pursuant to the arrest of A-1, on the basis of the statement made by him u/s 67 of the NDPS Act A-2 was arrested, followed by arrest of A-3. Her whereabouts could not be traced out because A-3 was at the relevant time in jail.
Learned Counsel Ms. Vasavdatta Bhatt for NCB submitted that Section 67 of the NDPS Act empowers officers of the NCB to search, seizure and recording of the evidence which has been duly exercised by NCB Officers in the instant case. A-1 was found in possession of contraband in large quantity. A-2 has admitted his guilt in his statement u/s 67 of the NDPS Act which he has not retracted whereas A-3 has, though, retracted her statement, but fact reveals that she was the person to whom the contraband was to be delivered by A-1. The trial court, therefore, was justified in recording the conviction.
Ms. Bhatt, learned Counsel for the NCB has adopted the argument of learned APP Mr. Nanavati and submitted that A-1 came to be intercepted on a tip-off and that tip-off was found to be true. A-1 in his statement admitted his guilt, the statement is not retracted, and therefore, the conviction may be confirmed.
We have considered the Record & Proceedings in context of submissions made by learned advocates for the parties. At the outset, we may state that there has been no seizure or disclosure of any contraband from or by either A-2 or A-3. The statement made u/s 67 of the NDPS Act by A-3 has been retracted immediately on her being produced before the Criminal Court. She has in terms has stated that her statement was extracted from her under coercion.
So far as A-2 is concerned, there is no recovery or discovery of any contraband from him. He has also been apprehended on basis of statement made by A-1 u/s 67 of the NDPS Act. Statement of A-2 was also recorded under the said provision twice but he has chosen not to retract.
The conviction of A-2 and A-3, therefore, is founded only on basis of the statements made by them or co-accused implicating them for an offence punishable under NDPS Act. Apart from the statement u/s 67 of the NDPS Act which is recorded after apprehending or ''picking them'', there is no other material on record. But, before we go into examining the question if at all, we are required to do so, let us examine whether the prosecution has been able to connect A-2 and A-3 with the crime by any cogent evidence.
Admittedly there has been no seizure of any contraband from A-2 and A-3. Involvement of A-2 and A-3 is on basis of a statement of A-1 recorded u/s 67 of the NDPS Act. Without observing anything on its genuineness, truthfulness or acceptability, even if we read the statement, what we do find is that A-1 reveals that the contraband seized was to be delivered to Suresh, Zarina and Abdulla at Mumbai. The statement does not reveal any further details of Suresh, Zarina or Abdulla, except in respect of Suresh he has given description of his appearance and a mobile phone number. The statement revealed Mobile Phone No. 9820583010 and the physical description to be 35 years of age, 6 feet tall, strong built and dark complexion. In respect of Zarina, no physical description was given nor any detail as to her residence or place of meeting was given. This is revealed by A-1 on 7.1.2002, and on 8.1.2002 A-2 is picked-up by NCB Officers, Mumbai. The Officer picking-up A-2 has not been examined as a witness. We have no material on record to know as to how the officers in Mumbai picked-up A-2 on the very next day in absence of either full name of A-2 or a detailed description. The description which is given by A-1 in his statement is admittedly not tallying with the description of A-2.
Officer of NCB, Ahmedabad, Mr. Vikram Ratnoo, has stated in his evidence that he had not seen the Mobile Sim Card of the said number. He has also stated that he has not collected any details in respect of that mobile phone number to show that the said mobile phone number belonged to A-2. We are, therefore, unable to reconcile as to how A-2 came to be arrested on the very next day by the Officers of NCB, Mumbai. It has also been revealed from the evidence of Mr. Vikram Ratnoo that when he took A-2 in custody under a transfer warrant, A-2 is already in custody in another case at Mumbai.
Now, therefore, when there is no basic material to fix the identity of Suresh referred to in the statement of A-1 u/s 67 of the NDPS Act, as such, the foundation of his prosecution would stand affected. Then what would remain is only the statement u/s 67 of the NDPS Act. That statement is recorded, while he was, though not officially arrested, under the control of NCB Officers, after being picked-up from his brother''s residence. His statement was recorded at Mumbai on 9.1.2002, and the second one being on 11.1.2002 recorded at Ahmedabad. The second one was recorded after he was brought to Ahmedabad on basis of transfer warrant from Mumbai. It is, therefore, in our view, not safe to convict a person on basis of such statement only, when his initial identity and thereby nexus with the crime is not properly established. In our view, therefore, the trial court erred in convicting A-2.
So far as case in respect of A-3 is concerned, it is even on a better footing. A-3 was an under-trial prisoner when she came to be apprehended in the month of May 2002. Statement of A-1 does not disclose any details except her first name which is followed by her statement u/s 67 of the NDPS Act which was immediately retracted by her when she was produced before the Criminal Court, and therefore, there is no nexus established by the prosecution either in form of identity or in form of connection with the crime by the prosecution. The trial court, therefore, erred in recording conviction of A-2 and A-3.
So far as case against A-1 is concerned, we find that on a tip-off Intelligence Officer Mr. Vikram Ratnoo arranged a trap and the information was complete in itself including A-1 and the Truck number (though there is some discrepancy) and on acting upon that information, when a watch is arranged, the truck is found. A-1 is found to be driving the Truck, and on being questioned, has divulged the details revealing the secret compartment. The contraband is seized, sent to CRCL. The sample which was sent to FSL has been received by it with seal intact and the Chemical Analysis Report clearly reveals that the sample is of charas as defined under the NDPS Act. The sample which was sent to CRCL was not found by CRCL to be intact, and therefore was returned and it was again sent and again it is certified that the sample is of contraband charas. It was contended that, because the seal was broken, the prosecution cannot be said to have proved the contents of the samples properly. However, it is not possible to accept this contention for the reason that the sample send to FSL was received by FSL intact and was certified to contraband charas.
A contention was also raised about not following the guidelines in respect of drawal of the samples which also cannot be accepted because the guideline requires sample to be drawn of an homogeneous nature weighing 25 gms. In the instant case, the sample which is drawn is 25 gms. It is also found that the small pieces from all lumps/packets were drawn which was make the same homogeneous. Therefore we do not find any defect so far as drawal of sample is concerned.
It was also contended that the statement of the accused recorded u/s 313 of Cr.P.C., is defective. Our attention was drawn to several questions which were put to A-1 in respect of A-2 and/or A-3. It is right that these questions are not relating to A-2 and were not required to put him. But, at the same time, it is equally true that, by putting those questions to A-1, the Court has not caused prejudice to his interest. It is not indicated to us that a question relating to a material used against him was not put to A-1 which has deprived him of giving an explanation except that a question recording statement u/s 67 of the NDPS Act was not put to him. We may not use that statement against A-1 even then there is sufficient material to connect him with the crime. Lastly, it was contended that A-1 did not have conscious possession of the contraband. However, if we examine the panchnama, it is clear that the compartment was created under the roof of truck by creating a false ceiling with the help of a laminated sheet fitted with a screw. A-1 was driving the truck and obviously he has revealed that aspect immediately on being questioned. It is, therefore, not possible to accept the contention that he had no conscious knowledge about the contraband in the compartment. The trial court, therefore, was justified in holding that the case against A-1 is duly proved. Mr. Agrawal, learned advocate relied on the decisions in the case of Inspector of Customs, Akhnoor J&K v. Yash Pal and Anr. reported in 2009(1) EFR 618 and Shaikh Maqsood v. State of Maharashtra reported in 2009 AIAR (Criminal) 546 to show that if a relevant incriminatory material/details is not properly recorded u/s 313 of Cr.P.C., it would cause prejudice to him. But, as indicated, the defect in the statement recorded u/s 67 of the NDPS Act has not resulted in any prejudice to A-1 and therefore the said judgments are of no help to the case of A-1.
The resultant effect is that the appeals preferred by A-2 and A-3 stand allowed. The appeal preferred by appellant - Smt. Zarina Gulam Haji Bhat i.e. Criminal Appeal No. 488 of 2006 and the appeal preferred by appellant - Suresh Sakhraj Gupta i.e. Criminal Appeal No. 568 of 2006 stand allowed. The conviction of appellants - Smt. Zarina Gulam Haji Bhat and Suresh Sakhraj Gupta as recorded by learned Additional Sessions Judge, Fast Track Court No. 3, Ahmedabad (Rural) in Special NDPS Case No. 6 of 2002 against them is set aside. They are acquitted of the charges levelled against them. They shall be set at liberty forthwith if not required in any other case. Fine, if paid, shall be refunded.
The appeal preferred by appellant - Abdul Ahad Shaikh i.e. Criminal Appeal No. 799 of 2007 stands dismissed and his conviction recorded by learned Additional Sessions Judge, Fast Track Court No. 3, Ahmedabad (Rural) in Special NDPS Case No. 6 of 2002 is confirmed. As an alternative prayer, learned advocate Mr. Agrawal submitted that the sentence is too harsh, and if the Court is of the view that appeal does not merit acceptance, the sentence may be reduced. Looking to the quantity involved, we are of the view that no interference is called for in the discretion exercised by the trial court while awarding sentence and the request of Mr. Agrawal cannot be acceded to. Hence, the appeal is dismissed.