CR.A/51/2002 1/91 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 51 of 2002 with CRIMINAL APPEAL No. 60 of 2002 with CRIMINAL APPEAL No. 61 of 2002 with CRIMINAL APPEAL No. 941 of 2001 with CRIMINAL APPEAL No. 942 of 2001 with CRIMINAL APPEAL No. 943 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? CR.A/51/2002 2/91 JUDGMENT 5 Whether it is to be circulated to the civil judge ? ================================================= DILIPBHAI HARIBHAI JOSHI - Appellant(s) Versus UNION OF INDIA & 1 - Opponent(s) ================================================= Appearance : CRIMINAL APPEAL No. 51 of 2002 MR BC DAVE for Appellant No.1 MR KP RAVAL, Additional Public Prosecutor for Respondent No.1 MR DHAVAL G NANAVATI for Respondent(s) : 2, CRIMINAL APPEAL No.60 of 2002 MS NISHA A PARIKH for Appeallant No.1 MR KP RAVAL, Additional Public Prosecutor for Respondent No.1 MR DHAVAL G NANAVATI for Respondent(s) : 2, CRIMINAL APPEAL No.61 of 2002 MR RAJESH M AGRAWAL for Appellant No.1 MR KP RAVAL, Additional Public Prosecutor for Respondent No.1 MR DHAVAL G NANAVATI for Respondent(s) : 2, CRIMINAL APPEAL No.941 of 2001 MR BS PATEL for Appellant No.1 MR KP RAVAL, Additional Public Prosecutor for Respondent No.1 MR DHAVAL G NANAVATI for Respondent(s) : 2, CRIMINAL APPEAL No.942 of 2001 MR JM PANCHAL for Appellant No.1 MR KP RAVAL, Additional Public Prosecutor for Respondent No.1 MR DHAVAL G NANAVATI for Respondent(s) : 2, CRIMINAL APPEAL No.943 of 2001 CR.A/51/2002 3/91 JUDGMENT MR BD KARIA for Appellant No.1 MR KP RAVAL, Additional Public Prosecutor for Respondent No.1 MR DHAVAL G NANAVATI for Respondent(s) : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 14/11/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. Since all these six appeals are separately filed by the appellants / original accused Nos.1 to 6 in N.D.P.S. Case No.8 of 1998 decided by the learned Special Judge, Vadodara on 22.11.2001 and since all these appeals are heard together, they are being disposed of by this common judgment and order. 2. Criminal Appeal No.60 of 2002 and Criminal Appeal No.943 of 2001 are filed by CR.A/51/2002 4/91 JUDGMENT Dr.Ajit Janaklal Jayaswal – original accused No.1 and Ashok Prahladbhai Patel – original accused No.2 against their conviction under Section-22 read with Section-8(c) and 29 as well as 9(A) read with Section-25(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short NDPS Act) and sentencing accused Nos.1 and 2 for R.I of 10 years with fine of Rs.1 lac and in default thereof to undergo S.I of six months. Over and above this, the accused No.2 was also awarded sentence for R.I of 10 years with fine of Rs.1 lac and in default thereof to undergo S.I of six months for the offences punishable under Section-25 of the Act. Both these sentences were, however, ordered to run concurrently. 3. Criminal Appeal No.51 of 2002 is filed by Shri Dilip H. Joshi – original accused No.3 against his conviction under Sections-22, 25 and 29 of the Act and he was sentenced for CR.A/51/2002 5/91 JUDGMENT R.I of 10 years with fine of Rs.1 lac and in default thereof to undergo further S.I of six months for each of the offences committed under Sections-22 and 25 of the Act. Both these sentences were, however, ordered to run concurrently. 4. Likewise Criminal Appeal No.61 of 2002 is filed by Shri Yaduvendrasinh P. Dhilon – original accused No.4 against his conviction under Sections-22 and 29 of the Act and he was awarded sentence for R.I of 10 years with fine of Rs.1/- lac and in default thereof to undergo further S.I of six months. 5. Criminal Appeal No.942 of 2001 is filed by Shri Maheshkumar D. Patel – original accused No.5 against his conviction under Section-25(A) read with Section-29 of the Act and he was awarded the sentence for R.I of 10 years with fine of Rs.1/- lac and in default thereof to undergo further S.I of six months. CR.A/51/2002 6/91 JUDGMENT 6. Criminal Appeal No.941 of 2001 is filed by Shri Sunil Kshatriya – original accused No.6 against his conviction under Section- 25(A) of the Act and he was awarded sentence of R.I of 5 years with fine of Rs.50,000/- and in default thereof to undergo further S.I of 3 months. 7. Facts of the case have been detailed in the order and judgment of the learned Special Judge, Vadodara and, therefore, it is not expedient to repeat the same all over again in verbatim and in detail in this judgment. However, the basic facts which are necessary to be discussed in these appeals are as under:- 8. On receipt of specific information by an officer of Anti Terrorist Squad – ATS, Ahmedabad and in turn on passing of this information to the Zonal Director of Narcotic CR.A/51/2002 7/91 JUDGMENT Control Bureau (NCB), Zonal Unit, Ahmedabad on 11.3.1998 that mandrax tablets were being manufactured in the business premises of Rollex Pharmaceuticals Ltd., at & P.O. Rania, Tal. Dist. Baroda, by and under the guidance of Shri Ajit Janaklal Jaiswal – accused No.1 herein with the help of Shri Dilipbhai Haribhai Joshi – Managing Director of Rollex Pharmaceuticals Ltd., and Shri Ashokbhai Parahladbhai Patel and the said tablets would be ready for delivery by 12-3-1998. The said information was reduced in writing. After discussing the said information, the officers of Narcotics Control Bureau, Zonal Unit, Ahmedabad and Police Officers of Anti Terrorist Squad, Ahmedabad including Zonal Director, Narcotics Control Bureau and Dy. Superintendent of Police, Anti Terrorist Squad, Ahmedabad went to Baroda near GSFC, Baroda crossing at National Highway No.8 on 12.3.1998. After confirmation from the source, panchas were called at point near CR.A/51/2002 8/91 JUDGMENT GSFC, Baroda crossing at National Highway No.8. The officers appraised the panchas of the information and shown search warrant issued by Zonal Director, Narcotics Control Bureau, Ahmedabad in the name of Rollex Pharmaceuticals authorising Shri Jitendra Raghuwanshi, Intelligence Officer, Narcotics Control Bureau, Ahmedabad to search the said premises and requested them to accompany the search party to witness the search. The panchas were also requested to take personal search of all officers of the N.C.B and A.T.S and their vehicles. 9. On reaching the factory premises of Rollex Pharmaceuticals Ltd., it was noticed that there was no door or gate which could be closed. Only there was vacant place between two walls from where vehicle could enter into the factory premises and on entering the premises a white car was noticed parked under porch alongwith four persons standing behind CR.A/51/2002 9/91 JUDGMENT it. On close scrutiny of the said car it was further noticed that the dicky of the said car was kept opened. The raiding party has asked the four persons standing thereby to disclose their identity. As per disclosure these four persons are Dilipbhai Hariprasad Joshi, Ajit Janakbhai Jaiswal, Lalchand Dhanraj Kukreja and Ashokbhai Prahladbhai Patel. All officers of the NCB and ATS disclosed their identity and they have informed these four persons about their right to be searched in the presence of gazetted officer or a Magistrate. They have also offered their personal search as well as search of their vehicle. Nothing incriminating was found either from them or their vehicles. 10. During the search of white premier NE Car bearing registered No.GJ-6 AA 4671, two plastic bags containing brownish tablets were found from the dicky of the car. On being CR.A/51/2002 10/91 JUDGMENT asked about the tablets they were identified as mandrax tablets. In the meantime a person entered the premises. He was questioned about his identity and purpose of visit to the premises. He has identified himself as Sardar @ Yaduvendra Singh Puran Singh Dhillon of Ahmedabad. The raiding party has thereafter searched the factory premises and during the course of search of factory two plastic bags to some extent similar to two bags found from the aforesaid car were found from the room marked as “RM Store”. A weighing machine was also kept there. The bags were opened in the presence of panchas and the accused. From the plastic bags brownish tablets were found which were similar to the tablets found earlier from the car. The accused No.3 was asked whether he possessed any license or any permit to manufacture the tablets, the answer was in negative. All the four bags were weighed on the machine which was lying there and the CR.A/51/2002 11/91 JUDGMENT total weigh of all the four bags came to be 79.86 kgs. One tablet from each bag was tested with the Narcotics drugs testing kit and the result shown from all four tests was positive of Methaqualone. Four samples of 5 gms each ( 8 tablets) from each bag were drawn in the presence of the panchas and accused No.3. Thus, 5 gms tablets each were put in separate 16 polythene covers and stapled and thereafter wrapped with papers, tied with thread from two sides and all the 16 packets were heat sealed with Narcotics Control Bureau, AZU-1 Brass seal. Officers, panchas and accused No.3 affixed their signatures with date on a piece of paper, which was put below the seal. All four bags containing mandrax tablets have been wrapped with cloth which was stitched and heated with the same seal. The panchas, officers and accused No.3 affixed their signatures with date on the paper slip which was put underneath the seal. CR.A/51/2002 12/91 JUDGMENT 11. The raiding party has also searched other room marked as “Capsule Department” and they have also taken search of the machine. Some brownish powder was found on the machine named as Rotary Tableting Machine of 16 Station. Upon testing, the said powder was also shown the positive test of Mathaqualone. The powder being 15 gram was also taken by way of sample and same sealing procedure was adopted by the raiding party. The raiding party have also collected steel dies and punchs. Thus, NCB Officers seized in all 79.86 kgs of Mandrax tablets, dies and punchs, Rotary Tableting Machine and car bearing registration No.GJ-6 AA 4671 under the panchnama dated 13.3.1998. 12. Statement of the accused Nos.1, 2, 3 and 4 was recorded under Section-67 of the NDPS Act on 13.3.1998 and 16.3.1998. Statement of accused No.4 was recorded on 23.3.1998, CR.A/51/2002 13/91 JUDGMENT 26.3.1998 and 21.4.1998. Statement of accused No.6 was recorded on 21.4.1998. 13. Accused Nos.1, 2, 3 and 4 were arrested on 13.3.198 and remanded to judicial custody from time to time and on the date of filing the complaint by the Intelligence Officer – Shri D.N.Oza in June, 1998, they were lodged in Baroda Central Jail. Accused Nos.5 and 6 were arrested on 21.4.1998 in connection with the sale and purchase of acetic anhydride a controlled substance, which was used in manufacturing of the Mandrax tablets. Both these accused have been remanded to judicial custody from time to time and they were lodged in Baroda Central Jail on the date when the complaint was filed. 14. During the investigation, report of Forensic Science Laboratory (FSL) on the sample which was collected in presence of panchas and sent for analysis was received CR.A/51/2002 14/91 JUDGMENT which revealed that the contraband article, namely, Mandrax tablets contained Mathaqualone psychotropic substance. On the basis of the statements of the accused recorded under Section-67 of the NDPS Act it was revealed that all the 6 accused have committed offence under the provision of NDPS Act and, therefore, a written complaint for the offence punishable under Sections-22, 25 and 29 read with Section-8(c) of the NDPS Act was filed in the Court of learned Sessions Judge, Vadodara and the same was registered as NDPS Case No.8/1998. Alongwith the complaint list of documents like panchnama, seizure report under Section-57 of the NDPS Act and statements recorded under Section-67 of the NDPS Act. Seizure report, inventory report and FSL report were also produced. 15. Learned Special Judge, on the basis of averments and allegations made in the complaint, framed charge against all the CR.A/51/2002 15/91 JUDGMENT accused at Ex.43 on 17.5.1999 for commission of the offence punishable under Section-22 read with Section-8(c) and 29 and 25(A) read with Section-9(A) of the NDPS Act. The charge was read over and explained to the accused. The accused pleaded not guilty to the charges levelled against them and claimed to be tried. 16. In order to bring home the charge framed against the accused, prosecution has examined following witnesses and relied upon their oral testimonies. 1.PW No.1-Ramesh Babu Kondapani Naydu Ex.62 2.PW No.2 -Ashok Jayantilal Shah Ex.86 3.PW No.3 -Jitendra N. Raghuvanshi Ex.104 4.PW No.4 -Pavansinh Tomar Ex.146 5.PW No.5 – Vivek Shrivastav Ex.153 6.PW No.6 -Dr.Nirmal Jagdishkumar Ex.160 7.PW No.7 -Amish R. Moriya Ex.169 8.PW No.8 – Devendra Nanalal Oza Ex.177 CR.A/51/2002 16/91 JUDGMENT 17. Prosecution also placed reliance on the following documents to prove the culpability of the accused. 1.Panchnama dated 12.3.1998 Ex.63 2.Panchnama of residence of accused No.1 Ex.64 3.Panchnama Ex.87 4.Summons and statement of accused No.3 Ex.106 to 107 5.Summons and statement of accused No.1 Ex.110 to 112 6.Summons and statement of accused No.4 Ex.113 and 114. 7.Summons and statement of accused No.1 to accused No.4 Ex.120 to 123 and 129 to 136. 18. The prosecution has also relied on the report of Shri J.N.Raghuvanshi – Ex.144 confidential information passed on to Shri P.S.Tomar by ATS – Ex.155 and gist of CR.A/51/2002 17/91 JUDGMENT information. 19.After recording of the evidence of the prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the depositions of the witnesses. Thereafter, further statements of the accused were recorded under Section-313 of the Code. In further statement also they denied the prosecution case in toto and reiterated that they are innocent, they have not committed any offence, that they have been falsely implicated in the offence punishable under NDPS Act. They did not lead any evidence in defence nor they examined themselves on oath. 20. On appreciation, evaluation and analysis of the evidence adduced by the prosecution, the learned Judge held that the prosecution has proved beyond doubt that all the accused have committed offence under CR.A/51/2002 18/91 JUDGMENT Sections-8(c), 22, 25, 25(A) and 29 of the NDPS Act and resultantly the learned Judge has convicted and sentenced the accused to which reference is made in earlier paragraphs of this judgment, which has given rise to the present appeals. 21. Mr.B. C. Dave, learned advocate appearing in Criminal Appeal No.51 of 2002 for the appellant / original accused No.3 has submitted that the appellant was wrongly convicted and sentenced under the provisions of the NDPS Act, as the case against the appellant was not proved beyond reasonable doubt, in absence of any evidence whatsoever connecting the appellant with the crime. He has further submitted that the mandatory provisions of the NDPS Act have not been properly complied with and in that view of the matter the appellant ought to have been acquitted from the charges levelled against him in view of the judgment of the Hon'ble CR.A/51/2002 19/91 JUDGMENT Apex Court as well as of this Court. He has further submitted that the complaint against the appellant as well as other accused has been filed in the Sessions Court instead of Special Court constituted under the Act and no process has been issued by the Sessions Court. He has, therefore, submitted that the cognizance taken by the learned Sessions Judge was bad in law and as a result thereof trial is liable to be vitiated. He has further submitted that the officers of the Narcotic Control Bureau are not the Police Officers, and hence the complaint should have been filed before the Special Judge and since it was not filed, the cognizance taken by the learned Sessions Court is in violation of the mandatory provisions contained in the Act. He has further submitted that the officers of the Narcotic Control Bureau are not the officers as defined under Section-42 of the Act and hence they have no power to record the statement under Section-67 of the Act. CR.A/51/2002 20/91 JUDGMENT He has further submitted that if the so called confessional statements recorded by the officers are taken out from the evidence, no case remained against the appellant and hence the appellant is required to be acquitted. He has further submitted that even otherwise the joint operation, search and seizure have been conducted in the presence of the Police Officers and, therefore, any statement recorded under Section-67 of the Act would be hit by Section-25 of the Indian Evidence Act. He has further submitted that the information received by the Anti Terrorist Squad has not been proved on record on the basis of which the whole operation has been carried out. Any action taken in pursuance of the said information is therefore illegal and entire trial thereon is therefore required to be vitiated. He has further submitted that the muddamal register has not been produced on record to prove that the officers of the CR.A/51/2002 21/91 JUDGMENT Narcotic Control Bureau have deposited the muddamal as well as sample drawn by them. He has further submitted that the Station House Officer has also not applied his own seal on the muddamal bulk and muddamal samples. He has, therefore, submitted that there are all possibilities of tempering with the samples and benefit of doubt is required to be given to the appellant. He has further submitted that there were material discrepancies about the seals applied by the search officer on the samples on the one hand and the report submitted by FSL and the deposition of so called independent panch witnesses on the other hand. He has further submitted that the so called confessional statements recorded under Section-67 of the Act were under threat, duress and compulsion. Even otherwise, the said statements were subsequently retracted by the appellant. Having regard to all these aspects of the matter, he has requested the Court to reverse CR.A/51/2002 22/91 JUDGMENT the finding given by the learned Sessions Judge and pass an order for acquittal of the appellant. 22. Miss Nisha Parikh, learned advocate appearing in Criminal Appeal No.60 of 2002 for the appellant – original accused No.1 has submitted that the appellant was wrongly convicted and sentenced under the provisions of the NDPS Act despite the fact that the mandatory provisions of the Act as well as Criminal Procedure Code have not been complied with. She has further submitted that the statements attributed to the appellant were not voluntary and could not be used as evidence against the appellant. She has further submitted that the prosecution has failed to establish the case of the appellant beyond the reasonable doubt. She has further submitted that the ingredients of the offences of which appellant has been charged were not established by the cogent CR.A/51/2002 23/91 JUDGMENT and reliable evidence. She has further submitted that the documents on which the conviction was based, do not seem to have been proved in accordance with law and they do not have such probative value as would justify conviction of the appellant on the basis of the contents thereof. She has further submitted that the mandatory provisions of NDPS Act had not been complied with and, therefore, the conviction of the appellant on the basis of evidence led by the prosecution is not sustainable. She has further submitted that the statements recorded under Section-67 cannot be used against the appellant as the appellant has not been made aware by the officers that the statement would be used against the appellant. She has further submitted that while drawing the panchnama at the residence of the appellant despite the fact that the appellant was present, his signature was not obtained on the panchnama. She has further CR.A/51/2002 24/91 JUDGMENT submitted that the entire trial was proceeded without necessary compliance of the procedure laid down in Criminal Procedure Code and without observing the provisions of the NDPS Act. She has further submitted that the appellant is in jail from March, 1998 and more than 8 years have passed. The punishment imposed is of 10 years. The appellant is the doctor and holding the Ayurvedic Degree and he is the only earning member in the family. She has, therefore, submitted that even if this Court is of the view that the conviction is required to be upheld in that case the appellant may be released from the jail after awarding the sentence undergone by the appellant. 23. Mr.Rajesh M. Agrawal, learned advocate appearing in Criminal Appeal No.61 of 2002 for the appellant – original accused No.4 has submitted that the judgment and order of conviction passed by the learned Special CR.A/51/2002 25/91 JUDGMENT Judge is ex-facie, illegal and hence the same is required to be interfered with by this Court in the interest of justice. He has further submitted that the appellant was not present and his presence is not shown in the vardhi received by the police. Even the report at Ex.144 does not reflect as to how many persons are arrested as per the case of the prosecution panchnama at Ex.63. The appellant entered in the factory premises, however no such thing is being reflected in the panchnama. Even deposition of panch witness – Rameshbabu does not reveal that any person has entered when the panchnama was prepared and hence only on the basis of statement of the appellant recorded under Section-67 of the NDPS Act it cannot be held that there was any link to connect the appellant with the crime. He has further submitted that it is the case of the prosecution that the appellant has entered in the factory premises with a view to CR.A/51/2002 26/91 JUDGMENT purchase tablets as he has given order in advance. It is also the case of the prosecution that part of the amount was paid and remaining amount of Rs.2 lacs were required to be paid by the appellant. The prosecution has however miserably failed to prove any transaction. On the contrary, no amount was recovered or discovered from the appellant and it was found that the appellant was alone without any vehicle. He has, therefore, submitted all these discrepancies in the evidence produced by prosecution cannot be said to be minor in nature as observed by the learned Special Judge and relying upon the said evidence the appellant could not have been convicted. He has further submitted that the Narcotic Control Bureau is not entitled to file case under the provisions of NDPS Act and prosecution witness – Raghuvanshi is not empowered to record the statement under Section-67 of the NDPS Act. He has further submitted that the CR.A/51/2002 27/91 JUDGMENT mandatory provisions which are required to be followed have not been followed and hence the appellant is entitled to the benefit of doubt. 24. Mr.Agrawal has further submitted that even if the case of the prosecution is examined by own evidence of the prosecution, namely, information which was received by the Narcotic Control Bureau initially, nothing was mentioned with regard to the present appellant / original accused No.4 or even the information which was subsequently produced, there also name of the appellant was not found. The panchnama which was produced at Ex.63 though the said panchnama was prepared when the raid was carried out, even in that panchnama also the name of the appellant was not figured. It was not stated in the panchnama that during the course of preparing panchnama any such person entered in the factory premises. Even panch witness – CR.A/51/2002 28/91 JUDGMENT Rameshbabu who has been examined at Ex.62, has also not stated