((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.608 OF 2005 Prakash Shivaji Jadhav @ Prakash Ramoshi and others Appellants versus The State of Maharashtra Respondents and another Mr.P.R.Arjunwadkar for appellant nos.1 and 2. Mr.Amit Shete for appellant no.3. Mr.D.N.Salvi, advocate for Union of India. J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 09th February 2009 JUDGEMENT : 1. The submissions of the learned counsel for the parties were heard on the earlier date. Before dealing with the matter on merit it must be noted here as to how the matter has been conducted on behalf of the second respondent. On 14th January 2009 on the prayer made by the counsel for the appellants the hearing of the appeal was adjourned to 15th January 2009. On that day none appeared for the Union of India. On 15th January 2009 submissions of the learned counsel for the appellants were fully heard and ((-2-)) the case was adjourned to 21st January 2009 at 3.00 p.m. for judgement. On that day Mr.Kantharia appeared for the second respondent (Union of India, through Department of Customs, Preventive Narcotic Cell, Pune) and sought time on the ground that in place of Mr.J.C.Satpute who had filed Vakalatnama for the second respondent he had been briefed by the Union of India. Indulgence was shown to him by adjourning the matter till 23rd January 2009. On 23rd January 2009, a request was made by Mr.D.N.Salvi on behalf of second respondent for an adjournment on the ground that Mr.Kantharia was busy in another Court. Again indulgence was shown and the case was adjourned to 29th January 2009. On that day learned counsel Mr.D.N.Salvi argued the matter on behalf of second respondent. I am constrained to observe that in number of appeals which appeared before this Court from 5th January 2009 onwards the counsel appearing for the Union of India were persistently absent. 2. With a view to appreciate the submissions made by the counsel for the parties it will be necessary to refer to the facts of the case in brief. ((-3-)) 3. The complainant in this case is Mr.R.N.Tonape who was at the relevant time working as Superintendent of Customs, Preventive (Narcotics Cell), Pune Customs Commissionerate. According to the case of prosecution, Mr.R.N.Tonape was authorised to carry out the detection, investigation, search, seizure and arrest of the persons for the commission of the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the said Act of 1985"). 4. The case of the prosecution is that on 12th September 2002 the officers of the Customs Commissionerate (Narcotic Cell) at Pune received an information from one informant which has been recorded at 7.00 a.m.. The information received was that one Prakash Shivaji Jadhav alias Pakya Ramoshi, a resident of Tungat, Tal.Pandharpur, District Solapur will be carrying seven gunny bags containing Ganja weighing approximately 200 kgs. by a Tempo Trax Jeep No.MH-13-F-9282 alongwith one Rajendra Audumbar Waghmode, the owner of the jeep as well as one Bhalchandra alias Balu ((-4-)) Sopan Randive, the driver of the jeep. The information received was that the Contraband will be transported from Wagdal, Andhra Pradesh to Tungat, Tal.Pandharpur, District Solapur. The information received disclosed that the said Tempo Trax vehicle will pass Malik Peth Railway Crossing on 12th September 2002 between 12.30 hours to 15.00 hours. The information received disclosed that the said Malik Peth Railway Crossing is on Mohol-Vairag road. 5. The case of the prosecution is that immediately after recording the information, the Superintendent of Narcotic Cell Mr.P.K.Khandale was telephonically informed about the said information and in turn the said Mr.P.K.Khandale reported the information to the head quarters. The said Mr.P.K.Khandale after perusal of the information gave written directions on the office copy of the information that Mr.R.N.Tonape and Mr.Alexander Lee should take necessary action. 6. After the said written directions were issued by Mr.P.K.Khandale, at about 8.00 a.m., a team of officers consisting of Mr.R.N.Tonape, Alexander Lee, S.V.Mathew, B.M.Mujawar, ((-5-)) S.L.Chavan and S.B.Pawar by a vehicle alongwith stationery articles, weighing scales and weight and spring balance, sealing material and other articles required for search and seizure etc. proceeded towards the said place. The team reached the said Malik Peth railway crossing at about 12.15 p.m.. The said railway crossing is at a distance of four to five kms. from the town Mohol. The complainant Mr.R.N.Tonape caught hold two persons from Malikpeth village. The complainant informed the said two persons regarding the information received that Contraband consisting of 200 kgs. of Ganja was being brought in Tempo Trax from Andhra Pradesh to Tungat village. The said two persons were requested to act as Panch witnesses who in turn agreed to do the job. 7. Thereafter, the team of officers and the panch witnesses kept surveillance. After some time at about 2.20 p.m., the Tempo Trax bearing registration No.MH-13-F-9282 could be seen approaching Vairag road towards the railway crossing. It is stated that the complainant, other officers of the team and a peon (who was in uniform) gave signal to the driver of the Tempo Trax vehicle to stop the vehicle. ((-6-)) Accordingly the vehicle was stopped by the driver. It was noticed that there were three persons inside the tempo trax (including the driver). They were occupying front seats of the tempo trax. The name of the driver was disclosed as Balu Sopan Randive. The person sitting next to the said Balu was Rajendra Waghmode who was claiming to be the owner of the tempo trax. The person sitting on the left hand side of the front seat disclosed his name as Prakash Shivaji Jadhav. He told that they were coming from village Vagdal, Tal.Narayankhed in the State of Andhra Pradesh. According to the prosecution case, on enquiry being made the said Balu (accused no.2) disclosed that there were seven gunny bags of Ganja loaded in the tempo trax which were purchased by Prakash Jadhav (accused no.1). Accused no.2 disclosed that he was receiving Rs.1,500/- per trip from accused no.1 for transportation charges for Ganja. On being called upon the said Rajendra Waghmode (accused no.3) produced the documents relating to the tempo trax which were kept in the vehicle and handed over the same to the complainant Mr.R.N.Tonape. Later on, the said documents were seized and taken in custody by the ((-7-)) complainant. 8. According to the prosecution case on enquiry made by the complainant the first accused Prakash Jadhav informed the complainant that the jeep was loaded with seven gunny bags containing Ganja totally weighing 185 kgs.. The accused no.1 disclosed that he purchased the said quantity of Ganja @ Rs.250/- per kg. from one Narsayanrao @ Narsaya of Wagdal Tanda, Tal.Narayankhed, andhra Pradesh. According to the prosecution, the first accused disclosed that he had given an advance of Rs.25,000/- to the said Narsayarao @ Narsaya. 9. Thereafter the complainant unloaded the seven gunny bags from the said tempo trax and opened the same in the presence of the Panch witnesses and the accused. According to the complainant, the first and second accused admitted that the Ganja was stored in the said seven gunny bags. The contents of the gunny bags were measured by the complainant by using the spring balance and the gunny bags were marked as A,B,C,D,E,F and G respectively. When the Contraband was weighed by using the spring balance, the weight thereof was found to be 185 ((-8-)) kgs.. 10. The case of the prosecution is as the said place was not proper and suitable for carrying out further proceedings, after the said complainant R.N.Tonape had discussion with the Panch witnesses and the accused he decided to shift the said gunny bags and the Ganja found therein with the intercepted vehicle to Mohol. The case of the prosecution is that the Ganja was reloaded in the gunny bags and after closing the gunny bags with the help of string, the same were reloaded in the tempo trax. Thereafter the team of officers, panch witnesses and accused proceeded towards Mohol and arrived at Sadiccha Lodge at Mohol. 11. After reaching the said Sadiccha Lodge, the said seven gunny bags were again removed by the complainant. 50 gm. of Ganja was drawn by the complainant from each of the gunny bags. Thereafter the said sample quantities were mixed and two samples of Contraband weighing 175 gms. each were made which were packed and sealed into two separate plastic pouches. The plastic pouches were placed into two separate green envelopes which were sealed and signed by ((-9-)) the Panch witnesses. The said envelopes were signed by the second and third accused and the first accused affixed left hand thumb impression thereon. 12. Thereafter the remaining Contraband was packed in the said seven gunny bags which were stitched and sealed by jute string and sealed with sealing wax. Paper labels were affixed which were signed by the complainant, panch witnesses and accused nos.2 and 3. Thumb impression of accused no.1 was taken on the gunny bags. According to the prosecution, the value of the total Contraband was Rs.3,70,000/-. Apart from seizing the contraband in the gunny bags, even the tempo trax was seized. The samples were sent to the Regional Forensic Science Laboratory, at Pune. The report dated 2nd November 2002 submitted by the Regional Forensic Science Laboratory indicated that the Contraband was Ganja. Subsequently, the statements of the accused under section 67 of the said Act were recorded. 13. The learned Additional Sessions Judge found the accused guilty of the offences punishable under section 8(c) read with section ((-10-)) 20(b)(ii)(c) of the said Act. They were sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1.00 lakh. In default of payment of fine, the accused were directed to suffer rigorous imprisonment for two years. The accused were also further convicted for the offence punishable under section 29 read with section 20(b)(ii)(c) and section 8(c) of the said Act and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1.00 lakh. In default of payment of fine, they were directed to suffer rigorous imprisonment for two years. Accused nos.2 and 3 were further convicted for the offence punishable under section 25 read with section 8(c) and section 20(b)(ii)(c) of the said Act and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1.00 lakh. In default of payment of fine, they were directed to suffer rigorous imprisonment for two years. All the sentences were directed to run concurrently. 14. The learned counsel appearing for the first and second appellants has taken me through the notes of evidence and other relevant material on record and has made ((-11-)) detailed submissions. First submission made by him is that the entire prosecution case becomes doubtful inasmuch as the alleged information reduced in writing is in minutest details including the place from which the tempo trax will arrive, the registration number of the tempo trax, the full names of the concerned persons, the route by which the vehicle will be passing and the place of destination. He submitted that considering the minutest details provided in the information and considering the manner in which the officers of the Preventive Narcotic Cell of Customs have acted, a serious doubt is created about the receipt of information. He submitted that the compliance has not been made with sub section 2 of section 42 by sending the information to the superior officer. He submitted that there was no recording of telephonic instructions given to the officers who acted on the basis of the alleged information. He pointed out that as per the prosecution case the accused immediately disclosed their identify and admitted to have carried the Contraband. He submitted that the said conduct is unnatural and it is impossible to accept the said case made out by the prosecution. He pointed out ((-12-)) that the investigating officer did not record the seizure panchanama at the spot where the alleged contraband was allegedly sealed. He submitted that there were government offices and other convenient places around or in the close proximity of the place of seizure but surprisingly the raiding party took custody of the contraband and the vehicle and travelled long distance up to Sadiccha Lodge at Mohol and the actual seizure was made at the said place. He pointed out that the alleged contraband contained in the seven gunny bags was in the custody of the officers of the Preventive Narcotic Cell till the raiding party reached the said Sadiccha Lodge. He submitted that there is no evidence on record to show that the gunny bags which were opened at that place were re-sealed and taken to Sadiccha Lodge. He submitted that there is a delay in forwarding the sample to the Regional Forensic Science Laboratory. He submitted that there are no independent witnesses examined and statements of any of the independent witnesses are not recorded during the course of investigation. He submitted that for the incident of 12th September 2002 the complaint was lodged on 20th February 2003. He submitted that on this ((-13-)) background, the failure to record the statements the witnesses will have to be viewed. He submitted that the concerned officer had no authority to record confessional statements of the accused. He invited my attention to the evidence of the prosecution witness no.4 Mr.Ashok Gurupak Kshirsagar. He stated that the said witness was working in Customs Office, at Pune and in the morning he was told by his superior officer that a party of the Department is proceeding for intercepting a vehicle and for follow-up action his presence at Mohol was necessary. He submitted that it is surprising as to how before the raiding party allegedly intercepted the tempo trax in the morning, an officer at Pune was informed that his presence will be required at Mohol. He pointed out that admittedly the accused no.1 is neither the owner of the vehicle nor the driver and therefore, the knowledge of possession of contraband cannot be fastened against him. The learned counsel appearing for the third accused-appellant also made submissions. Apart from adopting the submissions made by the counsel for the first and second appellants, he stated that the third accused was neither in ((-14-)) possession nor in constructive possession of the contraband. He invited my attention to the statement in writing of the third accused filed before the Trial Court. He submitted that the third appellant has been falsely implicated. 15. The learned counsel appearing for the respondents has generally replied to the contentions raised by the advocate for the appellants. He submitted that the statements under section 67 of the said Act of the accused are voluntary statements and the said statements have not been retracted. He invited my attention to section 35 of the said Act and submitted that the burden shifted on the appellants which has not been discharged. He has relied upon certain judgements a reference to the said will be made at a later stage of the judgement. 16. I have carefully considered the submissions. I have also considered the oral evidence and other relevant material on record. 17. It will be necessary to refer to the evidence of the prosecution witnesses. PW-1 Alekzandar Lee was working as Inspector of ((-15-)) Customs, Preventive (Narcotic Cell), at Pune at the relevant time. The said witness received the information on 12th September 2002 at about 6.45 a.m.. He stated that he reduced the said information into writing in the presence of Inspector Mr.R.N.Tonape. He stated that he recorded the information at about 7.00 a.m.. The information received as disclosed by him reads thus :- "... ... The information stated that one Prakash Shivaji Jadhav @ Pakya Ramoshi, R/o.Tunghat, Tal. Pandharpur, Dist. Solapur will be transporting approximately 200 kg. of Narcotic Drugs i.e. Ganja along with Rajendra Audumbar Waghmode the owner of the vehicle and Balu Sopan Randive, driver from Wagdal, Andhra Pradesh to Tungat village, Tal. Pandharpur Dist. Solapur. They will transport the said Narcotic in Jeep No.MH-13-F-9282. The said jeep will cross Malik Peth Railway Crossing between 12.30 hours to 15 hours approximately on 12/9/2002. If the jeep is intercepted then you can recover the aforesaid quantity of Ganja. ... .." He stated that the original copy of the information reduced into writing was kept in a sealed envelop and the second copy was put up for information of the Superintendent of Narcotic Cell Mr.P.K.Khandale. He proved the second copy of information which is at Exhibit-13. He also proved in evidence the office copy of letter dated 12th September 2002 ((-16-)) addressed to the Inspector of Customs, Narcotic Cell, Pune. 18. A perusal of the document at Exhibit-13 shows that there is an endorsement "seen" made by the Superintendent of Narcotic Cell Mr.P.K.Khandale. Exhibit-14 is the letter addressed to the Inspector of Customs recording the said information. On the said document at Exhibit-14 there is an endorsement made by the Superintendent that he has seen the information and Inspector Mr.Tonape and Mr.Alexzandar Lee to take necessary action. Thus, the information was forwarded on the very day to the superior officer who had seen the same and issued necessary directions on the letter at Exhibit-14. There is no merit in the submission made by the learned counsel for the appellants regarding non compliance with sub section 2 of section 42 of the said Act. In the further part of examination-in-chief, PW-1 stated thus:- "2. Thereafter Inspector R.N.Tonape, myself and S.N.Mathew and sepoy S.P.Pawar immediately left head quarter at about 8.00 a.m. in Govt. vehicle No.MH-12/JA/736 along with stationary articles, sealing materials and other articles. After making an enquiry we went to Mallikpeth Railway crossing at ((-17-)) 12.15 p.m. The said crossing is located on Mohol-Vairag road. After reaching the spot the complainant R.N.Tonpe stopped two persons near the gate who were coming from Malik Peth village. The complainant then introduced himself to the said two persons with the help of his identity card. Then the complainant told the information to the said persons which he had received. The complainant also requested them to act as a Panch during the course of interception search and seizure proceeding of vehicle No.MH-13-F/9282. The said two persons agreed to act as a Panch. The names of the said persons are Gaikwad and Salunke. Then surveillance was maintained on the spot by the officers. Thereafter at about 2.30 p.m. Jeep No.13-F/9282 was coming from Vairag road. Sepoy Pawar who was in uniform gave signal to the jeep and stopped the jeep. When the jeep was stopped the complainant asked the name of the person who was sitting on driver seat. He has disclosed his name as Balu Sopan Randive. The complainant also asked the name of the person who was sitting next to Balu Sopan Randive. He has told his name as Rajendra Audumbar Waghmode. He has also informed the complainant that he is the owner of the jeep. The complainant also asked the name of the person who was sitting on the cleaner side and he has told his name as Prakash Shivaji Jadhav. The persons are present before the Court today. The complainant also asked those persons in respect of the goods loaded in the jeep. Driver Balu Sopan Randive informed that there were 7 gunny bags of ganja in the jeep. The other two accused also disclosed that there is a Ganja in the jeep. On enquiry Prakash Shivaji Jadhav told that the said Ganja is owned by him and he had purchased the said Ganja from Vagdal village at the rate of Rs.250/- for per Kg. He has also informed to the complainant that he has given advance amount of Rs.25,000/- in cash to Narsayya. Prakash Jadhav also informed to complainant that total Ganja was 185 kg. in 7 gunny bags." ((-18-)) He stated that after securing presence of Panch witnesses, surveillance was maintained and at about 2.00 p.m. vehicle was intercepted. According to him, after the vehicle was intercepted, the driver of the jeep (accused no.2) disclosed his name as Balu Sopan Randive. It is stated that on being questioned, even the appellant no.3 disclosed his name. He disclosed that he was the owner of the tempo trax/jeep. According to the prosecution case the said person disclosed that there was Ganja in the jeep. It is stated that the accused no.1 stated that Ganja was owned by him and he purchased the same from Vagdal @ Rs.250/- per kg.. He stated that thereafter seven gunny bags in the jeep were unloaded and the complainant Mr.Tonape opened the mouth of all seven gunny bags. The accused disclosed that the gunny bags contained Ganja. It was suspected that the same were containing Ganja. He stated that the Ganja was weighing 185 kgs.. He stated that the gunny bags were marked as A, B, C, D, E, F and G. He stated that as it was a railway crossing, the place was not suitable for further investigation. Therefore, the complainant made a request to the Panch ((-19-)) witnesses and shifted the Muddemal along with the vehicle to Mohol for further investigation. Then the witness described as to what transpired at Sadiccha Lodge at Mohol, which read thus :- "4. Thereafter we reached to Sadicha Lodge situated at Mohol along with accused, seized Muddemal, vehicle and the Panch witnesses. After reaching the Sadicha lodge complainant removed all the 7 gunny bags containing ganja from the tempo trax. Thereafter complainant opened mouths of all 7 gunny bags and he had drawn 50 grams of Ganja from each gunny bags total weighing 350 grams. All the samples then mixed and out of the same two samples of Ganja weighing 175 grams each was taken. Each of the sample was packed in two separate plastic pouches and it was heat seal. The said samples were placed into two separate envelopes and they were sealed with lakh. The envelopes were marked as A1 and A2. The envelopes were signed by the panch witnesses, complainant and accused Rajendra Waghmode, Balu Sopan Randive and left hand thumb impression of Prakash Jadhav. ... .." Thereafter the witness described the further procedure followed. He was extensively cross examined by the appellants-accused. He admitted that the control room does not have a station diary and they are maintaining message register. 19. It will be necessary to refer to paragraph ((-20-)) no.7 and relevant part of which reads thus :- "7. Mohol is Taluka place. I do not know Tahsil office is adjacent to Sadicha Lodge. From the railway crossing gate to Sadicha Lodge one has to cross mohol village. WE had not issued yadi to Tahsildar requesting him to give list of gazetted officers. WE had not sealed the sample in presence of gazetted officer of Mohol. On 12th and 13th we stayed at Sadiccha Lodge, and we left Sadicha Lodge at 6 p.m. on 13th. WE have not produced any documentary evidence before the court in order to show that we stayed at Sadicha Lodge on 12th and 13th. On 13th at about 5 p.m. we produce the accused before JMFC Mohol. We had not recorded statements of manager or waiters of Sadicha Lodge. On 13th at about 5 p.m. we produced the accused before JMFC Mohol. ... .." The witness was also cross examined on Exhibits-13 and 14. He denied the correctness of the suggestion that a part of the Panchanama was not written on the spot. He stated that a part of the Panchanama was written at the railway crossing and remaining was written at Sadiccha Lodge. 20. Witness no.2 Agnalo D’souza was working as Inspector In-charge of Central Godown. His evidence is to the effect that on 13th September 2002 Inspector Tonape deposited seven gunny bags marked A to G containing Ganja to the Central Godown, at Pune. He stated that he ((-21-)) had also deposited a sealed envelope marked as "A1" containing