CR.A/90/2004 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 90 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAJKUMAR HARIRAM GAMETI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, MR UR BHAT, APP for Opponent(s) : 1, MRS VASAVDATTA BHATT for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 30/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) The challenge in this appeal is to the judgment and order dated CR.A/90/2004 2/17 JUDGMENT 21/6/2003 rendered by the Ld. Addl. Sessions Judge, Fact Track Court, Modasa [for short 'Ld. Trial Judge'] in NDPS Case No. 2/2000. The Ld. Trial Judge was pleased to record conviction of the appellant – accused for the commission of offences punishable under section 8[c], 21[c] read with section 29 of the Narcotic Drugs and Psychotropic Substances Act [for short 'NDPS Act'] and the appellant accused was sentenced to undergo rigorous imprisonment [RI] for 10 years with fine of Rs.1 lac with usual default stipulation. Being aggrieved and dissatisfied with the impugned judgment and order, the original accused preferred this appeal. 2. The case of the prosecution, in nut shell, is as under :- 2.1. Mr. D N Oza, Intelligence Officer, Narcotic Control Bureau, Ahmedabad, received an information on August 31, 1998 that a person named Kantiji Fulaji Rangot was to come in the evening of September 1, 1998 near Meghraj Bus Stand with brown sugar. Upon receipt of such information, Mr. Oza reduced the same into writing and forwarded to his superior officer. Thereafter, members of the raiding party including Mr. Oza went to Meghraj, panch witnesses were called and they were informed about the secret information received by Mr. Oza. Thereafter, members of the raiding party together with panch witnesses proceeded towards Meghraj Bus Stand. Co-accused Kantiji Fulaji was spotted coming towards Meghraj Bus Stand in suspicious circumstances. He was intercepted by the members of the raiding party. Mr. Oza conveyed to him the information received by him and was informed the co-accused Kantiji that it was necessary to search his person and that Gazetted Officer was also present and if the co-accused Kantiji so desired, he could be searched in presence of a Magistrate or other Gazetted Officer. The CR.A/90/2004 3/17 JUDGMENT said offer was declined by him. Thereafter, the person of the co-accused Kantiji was searched and brown sugar was found from pocket of shirt put on by Kantiji. One goldsmith Mr. Soni weighed the substance and its weight was ascertained to be 621 grams. Confessional statement of co- accused Kantiji was recorded under section 67 of the NDPS Act. The statement revealed that co-accused Kantiji Fulaji in the company of appellant – accused Rajkumar Hariram Gameti, Rakeshkumar Shankarlal Kalal, Shrilal Vasudev Nair and Kantilal Punamchand Kalal had come on scooter to Meghraj market and before reaching the market, the appellant – accused Rajkumar Harilal had handed over said packet containing the brown sugar to him, which he had kept in pocket of his shirt and he was instructed by the appellant accused to handover the said packet to Rajubhai of Ahmedabad, but before he could effect the delivery, he was arrested near the bus stand. At that time, the Narcotic Control Bureau issued summons to the remaining 4 co-accused persons including the appellant – accused, but the summons could not be served. Therefore, initially Mr. J M Trivedi, Intelligence Officer of the Narcotic Control Bureau, Ahmedabad, lodged complaint against the co-accused Kantiji Fulaji in the Court of the Ld. Addl. Sessions Judge, Himatnagar, which was numbered and registered as NDPS Case No. 7/1998. Subsequently, the summons could be served upon the present appellant – accused Rajkumar Harilal and he was arrested in connection with this offence on 26/7/2000. Ms. Krishna Chobey, Intelligence Officer, Narcotic Control Bureau, Ahmedabad lodged complaint against the appellant – accused in the Court of the Ld. Sessions Judge, Himatnagar, which was numbered and registered as NDPS Case No. 2/2000. In connection with this offence, he was charge-sheeted and the Ld. Trial Judge framed charge against the CR.A/90/2004 4/17 JUDGMENT appellant –accused for the commission of the aforesaid offences at exh. 9. The appellant – accused did not plead guilty and claimed to be tried. 3. The prosecution adduced its oral and documentary evidence. After the conclusion of the evidence, the Ld. Trial Judge recorded further statements of the accused under section 313 of the Code of Criminal Procedure, wherein the accused generally denied all the allegations levelled against him and stated that he was falsely implicated in this case. The Ld. Trial Judge evaluating the oral and documentary evidence on record adduced by the prosecution and considering the arguments advanced on behalf of both the parties, delivered the impugned judgment and he was pleased to convict the appellant – accused for the offences charged against him and was sentenced as described hereinabove. 4. On behalf of the appellant – accused, learned advocate Mr. Budhdhbhatti submitted that the Ld. Trial Judge erred in convicting the accused solely relying upon the so called confessional statement recorded under section 67 of the NDPS Act and the so called confessional statement of the co-accused. That there is no dispute that nothing was seized or recovered from the accused nor any narcotic substance was discovered at his instance. That even considering the so called confessional statement of the accused recorded u/s. 67 of the NDPS Act and produced at exh. 46, from the face of it, it can be said that the handwritings are different; first 3 pages contained one set of handwriting and the remaining pages contained different set of handwriting. That as per the prosecution case, the so called confessional statement was recorded on 25/7/2000; whereas the authority before whom the statement CR.A/90/2004 5/17 JUDGMENT was alleged to have been recorded signed the so called statement on 26/7/2000. That the accused had, subsequently in point of time, retracted the said confession. Vide application dated 20/7/2001 the accused had clearly alleged that his statement was recorded by administering coercive tactics by the authority and was not free confession in nature. It is further submitted that as per section 30 of the Evidence Act, the so called confessional statement of co-accused cannot be taken into consideration because the trial qua the appellant accused was separately conducted and he was not tried in a joint trial along with the co-accused Kantiji Fulaji. That in sum and substance, the only so called solitary evidence is confessional statement of the accused and the conviction cannot be solely based on such statement. The statement is not corroborated by any circumstantial evidence. That the confessional statement of the accused cannot be said to be a voluntary statement inspiring confidence in it for the purpose of convicting the accused and, therefore, the Ld. Trial Judge erred in arriving at the conclusion that on the basis of the so called confessional statement, the accused can be convicted for the serious offences alleged against him. Therefore, it is submitted that the appeal be allowed and the appellant – accused be acquitted. 4.1. On behalf of respondent no. 2, learned advocate Ms. Vasavdatta Bhatt, during the course of her argument, fully supported the impugned judgment and order rendered by the Ld. Trial Judge and submitted that considering the scheme of section 67 of the NDPS Act the Ld. Trial Judge did not commit any error of law in relying upon the statement and convicting the accused in the instant case. That the confessional statement exh. 46 is duly proved by the prosecution by CR.A/90/2004 6/17 JUDGMENT examining the concerned officer, who recorded the statement and after informing the accused that he was not bound to make such statement and if he makes such statement, it will be used as evidence against him. That the Ld. Trial Judge did not commit any error even in relying upon the confessional statement of co-accused Kantiji Fulaji. The confessional statements of the co-accused are produced on record at exhs. 30 and 31. That the question of considering section 30 of the Evidence Act may not arise as the entire offence was committed as part of conspiracy hatched by the accused along with other co-accused persons. That the Ld. Trial Judge, therefore, rightly convicted the accused for the offences punishable under sections 8[c], 21[c] read with section 29 of the NDPS Act and considering section 29 of the NDPS Act, it is abundantly clear that it prescribes punishment for abetment and criminal conspiracy. In that light of the matter, section 10 of the Evidence Act shall have to be considered wherein even confessional statement of co-accused in case of conspiracy can be looked into. 4.2. On behalf of respondent no. 1, Ld. APP Mr. Bhatt adopted the arguments advanced by learned advocate Ms. Vasavdatta Bhatt for respondent no. 2 and submitted that the appeal deserves to be dismissed. 5. We have gone through the oral evidence adduced by the prosecution in this case. The prosecution examined panch witnesses as well as officers of the Narcotic Control Bureau in this case as the witnesses. Considering the overall evidence on record and the impugned judgment and order rendered by the Ld. Trial Judge, there is no dispute that the case on hand is based solely upon the confessional statement recorded under section 67 of the NDPS Act. The confessional statement CR.A/90/2004 7/17 JUDGMENT of the accused is produced at exh. 46 and the confessional statements of the co-accused Kantiji Fulaji are produced at exhs. 30 and 31. 6. Before discussing the effect of those confessional statements, it would be necessary to consider that the co-accused Kantiji Fulaji was arrested in connection with this offence and in a Sessions Case No. 7/1998 the Ld. Trial Judge by judgment and order dated 27/4/2000 convicted said co-accused for the offences punishable under section 21 read with section 29 of the NDPS Act. Feeling aggrieved and dissatisfied with his conviction, the co-accused Kantiji Fulaji preferred Criminal Appeal No. 757 of 2000 and by judgment and order dated 20/12/2005, this Court dismissed said appeal filed by the co-accused Kantiji Fulaji. 7. As sated above, on behalf of the appellant accused, the confessional statement exh. 46 is attacked on various grounds. It is submitted that after the so called confessional statement of the appellant came to be recorded on 25/7/2000, the accused retracted the said confession vide his application forwarded by him through jail on 20/7/2001. From the original record of the Sessions Case, we have taken into consideration said application dated 20/7/2001. However, considering the tenor and texture of said application, it clearly transpires that the purpose of forwarding said application through jail by the accused was to see that the hearing of his case should be expedited or in the alternative he be released on bail. However, in para. 2 of said application, he stated that on 25/7/2000 he was beaten by police and was compelled to sign some writings and that he does not know the contents of said writings. Now considering the application, first of all it clearly transpires CR.A/90/2004 8/17 JUDGMENT that the said allegation was made challenging the genuineness of his confessional statement, practically after about one year from the date of recording of his confessional statement by the concerned authority. Even considering this application dated 20/7/2001, he has clearly stated that his educational qualification is M.A., B.Ed and was serving as a teacher in a school. Despite this, if at all the confessional statement exh. 46 was recorded by the authority, as alleged by the accused, by exercising coercive tactics, he would not have sat silent practically for the period of one year and would have immediately retracted the confession. Moreover, considering the further statement of the accused recorded under section 313 of the Cr. P.C., when the Ld. Trial Judge asked the accused about the confessional statement exh. 46, the only defence raised by the accused was that “it is not true”; meaning thereby that his defence was only of denial. He nowhere stated in his further statement about the allegations levelled by him in his application dated 20/7/2001 but he only stated in his further statement that he was falsely implicated in the case. 8. Considering the deposition of witness Krishna Chobey recorded at exh. 44, she stated that at the relevant time she was serving as Intelligence Officer in Narcotic Control Bureau. According to her deposition, she recorded the confessional statement exh. 46 under section 67 of the NDPS Act. That she issued summons to the accused on 25/7/2000, the copy of which is produced at exh. 45 and as per the summons, the accused was requested to remain present before her in her office at Ahmedabad. Considering her deposition, she personally served the summons to the accused at 3.50 p m at Modasa. She deposed that thereafter the accused appeared before her. That before recording the CR.A/90/2004 9/17 JUDGMENT confessional statement, according to her deposition, she drew attention of the accused that accused was not bound to give any confessional statement and that if such confessional statement is given, the same can be used against him. That thereupon, the accused voluntarily gave confessional statement and that confessional statement exh. 46 bears the handwriting of the accused and on each page the statement was signed by the accused. 8.1. On behalf of the appellant – accused, it is alleged that the first three pages of the statement bear one set of handwriting; whereas the remaining pages bear totally different set of handwriting. Witness Krishna Chobey in her deposition on oath denied such suggestion. Moreover, considering the impugned judgment delivered by the Ld. Trial Judge, in para. 19 of the judgment the Ld. Trial Judge elaborately discussed this aspect of the matter and observed that considering the handwriting of the statement, it nowhere transpires that there are different handwritings in the statement as alleged by the accused. Considering the statement exh. 46 it cannot be said that whatever was observed by the Ld. Trial Judge in the impugned judgment can be said to be incorrect. It would be necessary to consider that in the confessional statement the accused narrated his family history in detail. Thereby it clearly transpires that the accused narrated such facts which were within his own personal knowledge and cannot be said that the authority, who recorded statement, was aware about the family history narrated by the accused in the statement. In the impugned judgment, the Ld. Trial Judge narrated the contents of the statement almost in verbatim and, therefore, it would not be necessary for us to repeat in this judgment the entire contents of the confessional statement, but suffice it to say that according to the statement exh. 46, the CR.A/90/2004 10/17 JUDGMENT accused had received the narcotic substance – brown sugar from co- accused, who are still absconding, one Rakeshkumar Shankarlal Kalal and one Shrilal Vasudev Nair and he was to deliver the said contraband substance to co-accused Kantiji Fulaji Rangot. That the contraband substance was to be delivered to said co-accused Kantiji so that he can further deliver it to one Rajubhai. That the brown sugar was delivered to co-accused Kantiji Fulaji and he was apprehended by the officers of the Narcotic Control Bureau at Meghraj Bus Stand and the contraband article brown sugar was seized from co-accused Kantiji Fulaji. 9. We do not find any legal or factual error committed by the Ld. Trial Judge in relying upon the confessional statement. Considering the provisions contained in section 67 of the NDPS Act, any officer referred to in section 42 of the NDPS Act, who is authorized in this behalf by the Central Government or the State Government, is empowered to record such confessional statement. Considering the entire deposition of officer Krishna Chobey, nowhere it transpires that she was not so authorized and even on behalf of the appellant no such contention is raised. 10. In the matter of Kanhaiyalal v/s. Union of India reported in 2008 (1) SCALE p. 165 the Hon'ble Apex Court considering the relevant provisions of the NDPS Act including the provision contained in section 67 of the NDPS Act, held that the statement recorded under section 67 of the Act made to an officer within the meaning of section 42 of the Act could be treated as a confessional statement and that the accused could be convicted on the basis thereof in absence of any other corroborative evidence. CR.A/90/2004 11/17 JUDGMENT 11. This Court in the case of Iqbal Moosa Patel v/s. State reported in 2008 (2) G.L.R. Page 1598, relying upon earlier judgment of this Court in the case of Husen Bhenu Malad v/s. State of Gujarat, reported in 2003 (4) G.L.R. p. 3684, observed as under :- “It cannot be laid down as an absolute rule of law that the statement of an accused recorded under Sec. 108 of the Customs Act and Sec. 67 of the N.D.P.S. Act, cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. To put it differently, there is neither rule of law nor of prudence that the statement cannot be acted upon without corroboration. If the Court is satisfied that the statement is true and voluntary in nature, it can base conviction on it without corroboration. The Court has to scrutinise the statement carefully and must ensure that the statement is not the result of coercion, duress or undue influence.” 12. Considering the ratio laid down in the above referred decisions and the statement exh. 46 of the accused under section 67 of the NDPS Act and the oral deposition of officer Krishna Chobey, the Ld. Trial Judge rightly relied upon the confessional statement in arriving at the conclusion that the prosecution proved its case beyond reasonable doubt. 13. Learned advocate Mr. Budhdhbhatti for the appellant relied upon a case of Francis Stanly v/s. Intelligence Officer, Narcotic Control CR.A/90/2004 12/17 JUDGMENT Bureau reported in [2007] 2 S.C.C. [Criminal] p. 618. Considering the facts of said case, it clearly transpires that the appellant accused was involved in an offence under the NDPS Act, but retracted his confession which was earlier recorded under section 67 of the NDPS Act. The Hon'ble Apex Court observed that only evidence against him was the retracted statement of accused no. 1 and the appellant's own retracted confession. In that background, it was held that it would not be safe to maintain conviction of the appellant. Hon'ble Apex Court has further observed that it is clarified that the decision was based on particular facts and circumstances of the case and was not to be treated as precedent. 13.1. Now in the instant case, as discussed hereinabove, there is nothing to show that the appellant-accused in fact retracted his confessional statement. His application dated 20/7/2001, forwarded by him through jail to the Ld. Trial Judge was for the purpose of expeditious hearing of his case or in the alternative his enlargement on bail. In it cursorily he referred that he was beaten by police and he was compelled to sign some writings. No details are given. Even this was done practically after one year from the date of recording his confessional statement under section 67 of the NDPS Act. He is not so illiterate that he would have remained silent during this period. If the allegations he levelled in his application dated 20/7/2001 were correct, he would have immediately reacted. Whereas in Francis Stanly's case [supra], the factum of retraction of confessional statement was believed to have been established. Moreover, considering the particular facts and circumstances of said case, it was observed that it would not be safe to maintain conviction of the appellant therein merely on the basis of such retracted confession. Thus the facts of the case on hand are totally different than CR.A/90/2004 13/17 JUDGMENT the facts and circumstances of the Francis Stanly's case. 14. Reliance was also placed on the case of Koyappakalathil Ahamed Koya v/s. A.S. Menon reported in 2002 Criminal L.J. 4502. IN the said case, Ld. Single Judge of the Bombay High Court observed that th texture of section 108 of the Customs Act and section 67 of the NDPS Act are different structurally and fundamentally and the statement recorded under section 67 cannot be used for corroborating that aspect of prosecution, which prosecution is obliged to prove for leading evidence. 15. The judgment of the Bombay High Court was delivered on 03/07/2002, whereas the judgment delivered by the Hon'ble Apex Court in above referred Kanhaiyalal's case [supra] was delivered on 09/01/2008. However, needless to say that this Court would be bound to follow the ratio laid down by the Hon'ble Apex Court in Kanhaiyalal's case [supra]. 16. In the impugned judgment, the Ld. Trial Judge relied upon the confessional statements of co-accused Kantiji Fulaji produced at exhs. 30 and 31. The said confessional statements were challenged on behalf of the appellant on the ground that the Ld. Trial Judge erred in relying upon those statements in light of section 30 of the Evidence Act. It is submitted that said co-accused Kantiji Fulaji was tried separately and, therefore, as provided in section 30 of the Evidence Act, his confessional statement can be relevant if the present appellant – accused was tried jointly with him. That here co-accused Kantiji Fulaji was tried separately vide NDPS Case No. 7/1998 and the Ld. Addl. Sessions Judge vide judgment and order dated 27/4/2000 convicted said co-accused for the offences charged CR.A/90/2004 14/17 JUDGMENT against him. That the appellant – accused was subsequently arrested on 26/7/2000 and he was separately tried by the Ld. Trial Judge. It is true that as per section 30 of the Evidence Act, when more persons than one are being tried jointly for the same offence and a confession was made by one of such persons affecting himself and the co-accused, the Court may take into consideration such confession as evidence against such co- accused as well as against the person, who made such confession. Therefore, the confessional statement of co-accused can be proved if the trial is joint trial. However, learned advocate Ms. Vasavdatta Bhatt relied upon section 10 of the Evidence Act. She argued that as provided in section 10 of the Evidence Act, in case of conspiracy, anything said, done or written by any one of such persons who have conspired together to commit an offence, is a relevant fact as against each of the persons believed to so conspiring as well as for the purpose of proving existence of such conspiracy. She argued that in the instant case, the appellant accused was also charged for the offence punishable under section 29 of the NDPS Act, which prescribes punishment for abetment and criminal conspiracy. Therefore, it is submitted that the confessional statement of co-accused Kantiji Fulaji exhs. 30 and 31 can be used against the appellant – accused. 17. As argued by learned advocates representing both the parties and simultaneously considering the facts of our case, it becomes clear that as per the prosecution case, 5 persons have conspired together in trafficking the narcotic drug – brown sugar. By judgment and order dated 27/4/2000 in NDPS Case No. 7/1998 co-accused Kantiji Fulaji came to be convicted for the offence punishable under sections 21 and 29 of the CR.A/90/2004 15/17 JUDGMENT NDPS Act. In the instant case, the