1 Apeal 388-2007 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.388 OF 2007 Uday Kumar Abhevardhan, .Appellant Age : 40 years, a Srilankan national, Adult, resident of 224-A, Heerabag,Kammavadi, Panjarapol, Deonar, Chembur, Mumbai  400 088. V/s. 1. The Union of India, .Respondents through the Intelligence Officer, Narcotics Control Bureau, 3rd floor, Exchange Building, Sprott Road, Ballard Estate, Mumbai  400 038. 2. The State of Maharashtra Mr.Anil Lalla, Advocate, for the Appellant Mrs.Revati Mohite  Dere, Special Public Prosecutor, for Respondent No.1 Mr.J.P.Kharge, APP, for Respondent No.2 - State CORAM : R.C.CHAVAN, J. RESERVED ON : 14TH JUNE, 2011 PRONOUNCED ON : 29TH JULY, 2011 2 Apeal 388-2007 JUDGMENT . This Appeal is directed against appellant's conviction for the offence punishable under Section 20(1)(c) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and sentence of rigorous imprisonment for ten years with a fine of Rs.1,00,000/- or in default rigorous imprisonment for one year imposed upon the appellant by the learned Special Judge, NDPS cases in Greater Mumbai. 2. Facts which are material for deciding this Appeal are as under :- On 28th February, 2003, Namboodri Prasannan Shankarnarayanan, an intelligence officer working with the Narcotic Control Bureau (hereinafter referred to as NCB) gathered intelligence that the appellant was using a particular flat at Naigaon for storing heroin consignments and that the appellant had 3 Apeal 388-2007 received a large consignments of heroin that day, for disposal whereof, the appellant was to visit the flat around 6:00 p.m. An intelligence note was, accordingly, prepared and submitted to the Assistant Director, who ordered Shri Namboodri to organize a team, to work out the information and report. Accordingly, a team of officers from NCB left for the location of flat of the appellant after equipping themselves for drawing up panchanamas. On reaching the place two occupants of neighbouring flats were called as panchas and at 6:10 p.m. the raiding party rang bell of the flat. The flat was opened by the appellant and the search of flat yielded 5.700 Kg of Heroin in a bag. Necessary samples were drawn and the remaining contraband in the bag was also sealed. An elaborate panchanama was drawn up and the appellant was taken along with the property to the office of the NCB. He made a confessional statement which was recorded. The appellant 4 Apeal 388-2007 was then formally arrested, samples were sent to the Assistant Chemical Analyzer, and the State Forensic Science Laboratory. The remaining property was lodged appropriately. After registration of offence, further investigation was carried out. The laboratories reported that that the samples contain heroin. On completion of investigation, a complaint was lodged with the Special Court. 3. The learned Special Judge charged the appellant for the offence punishable under Section 29 and 21 read with Section 8(c) of the NDPS Act. Since the accused pleaded not guilty, he was put on trial at which the NCB examined in all ten witnesses. After considering the prosecution evidence in the light of defence of false implication, the learned Judge held the appellant guilty and convicted and sentenced him as re-counted earlier. Aggrieved thereby, the appellant has 5 Apeal 388-2007 preferred this appeal. 4. I have heard the learned Counsel for the appellant and the learned APP for the NCB. With the help of both the learned Counsel I have gone through the entire record. PW-1 Namboodri is the officer, who gathered intelligence, prepared intelligence note, arranged for and participated in the raid. PW-2 Vijay Govindram Bhatia is another intelligence officer, who had been entrusted with the task of carrying out raid by his superiors. He seized the incriminating articles, performed panchanama, drew samples and sent the samples to the laboratories. PW-3 Mrs. Pamela Salino D'Souza is the land lady from whom the premises were taken on leave and license basis by the appellant. PW-4 Pradeep Kumar Bhatnagar was working as Assistant Chemical Analyzer in the New Customs House Laboratory, who received the samples and analyzed it. He has proved his report whereby 6 Apeal 388-2007 he found that the sample was heroin i. e. Diacetyl Morphine. PW-5 Sanjay Gokhale was also working as Intelligence Officer and had participated in the raid. He had recorded statement of PW-6 Rachita Morje, who was estate agent through whom the appellant had allgedly taken the flat on rent. PW-6 Mrs.Rachita Ramakant Morje is the estate agent, who claimed that the land lady was her friend. She stated that she had shown the premises to the appellant, who came to her for the first time on 1st March, 2003 and that the Agreement was prepared on 1st March, 2003. She was permitted to be cross examined by the prosecution and then stated on 15th November, 2002 she had shown the premises to the appellant and that the Agreement was made in her presence. She admitted that she wrongly stated that the accused visited the site on 1st March, 2003 and that the Agreement was signed on 1st March, 2003 which was in fact the date on which she was called out to the Narcotics 7 Apeal 388-2007 Control Bureau. But again in cross examination the witness stated that the land lady told her four days prior to 1st March, 2003 that she wanted to give premises on rent and that for these four days, the key of the premises was with her. She admitted having signed the Agreement as Usha Morje and not Rachita Morje. In re-examination the witness re-iterated that she had received the key of the flat four days prior to 1st March, 2003. 5. PW-7 Bhushan Shriram Mulay is an inspector of Central Excise, who had applied before the Special Metropolitan Magistrate and got an inventory done in respect of the property seized. PW-8 Narayan Jogi Panigrahi, a Hawaldar at NCB, Mumbai stated having carried the sample to the Forensic Science Laboratory. PW-9 Keith John Sanchis was the Assistant Director of NCB, Mumbai at the relevant time. He had received the intelligence note from PW-1 Namboodri 8 Apeal 388-2007 Prasannan Shankarnarayanan and asked PW-1 to organize the raid. He stated that when the officers had gone for conducting the raid, he continued to stay in the office and raiding party returned with the accused at about 2:30 a.m.. He received the search and seizure report and put his signature thereon and eventually showed it to his superior. PW-10 Varyambat Madhavan Jayprakash is another intelligence officer, who was examined to show that the panch witnesses could not be served because their whereabouts were not known. 6. The learned Counsel for the appellant submitted that the evidence discloses that there was discrepancy as to whether the intelligence or information was received on 25th February, 2003 or 28th February, 2003. He also submitted that the procedure in recording the information and communicating the same to the superiors was not as required by the rules. He submitted that the raid 9 Apeal 388-2007 itself was vitiated since the raid was continued after Sunset when the officers had sufficient time to obtain warrant before starting for raid. He also pointed out that the officers had not recorded any reason for not obtaining the warrant. According to the learned Counsel for the appellant, the evidence of PW-6 Mrs.Rachita Ramakant Morje would rule out possession of the premises by the appellant at the time of the raid. He also submitted that the evidence about custody of the property and samples thereon was deficient and therefore, there was no guarantee that the samples which were analyzed were from the property which was allegedly seized from the appellant. He submitted that there was absolutely no reason for the car of wife of accused to remain at the NCB office, if the accused was, in fact, nabbed in the flat hired by him. He submitted that presence of car of the wife of accused with NCB is consistent with the defence that the appellant 10 Apeal 388-2007 was picked up from outside the School of his wife where he was waiting to pick her up after her School hours. The learned Counsel also submitted that reliance on confessional statement of the appellant was unjustified since the confessional statement had been retracted on the first available opportunity i. e. 13th March, 2003 and had not been corroborated in any material particulars by other evidence on record. The learned Counsel for the appellant submitted that according to the confessional statement, the appellant used to receive consignment of heroin as also adulterants to dilute the heroin. He submitted that no such adulterant was found at the spot casting a doubt about the entire story of receipt of consignment by the appellant and its seizure by the raiding party. Therefore, according to him, the evidence was grossly insufficient to warrant appellant's conviction. 11 Apeal 388-2007 7. The learned Special Public Prosecutor Mrs. Mohite-Dere for the NCB on the other hand, submitted that the information received was properly taken down and communicated to the superiors. There was no requirement of law that the original could not be sent though superior was available in the same office and that only a copy was required to be sent to the superiors. She submitted that since the raid had commenced before Sunset, there was no question of obtaining any warrant or recording any reason for conducting the raid without a warrant. According to her, the procedure in respect of sealing and custody of the samples and property was duly followed and the standing orders issued to the department, not being mandatory in nature but being only guidelines, some deviation here or there did not vitiate the search and seizure. She pointed out that there were no allegations about tampering of seals or articles as well. She submitted that the independent witnesses 12 Apeal 388-2007 were not examined because they were not available. According to her, PW-6 Mrs.Rachita Ramakant Morje was a hostile witness and therefore, her flip-flops have to be ignored. She submitted that even Mrs.Rachita Ramakant Morje had identified the appellant, as the person, who had taken the premises on leave and license basis, though there is some confusion in her mind about dates. According to her, presence of car of appellant's wife in the office of NCB has nothing to do with the factum of seizure of contraband from appellant's flat. This car may have been in the NCB office, since NCB could have been probing as to whether it was purchased from proceeds of illicit trade. Therefore, according to the learned Spl.P.P., conviction of the appellant is thoroughly justified. 8. Both the learned Counsel for the respective parties relied on a number of Judgments to support their arguments. 13 Apeal 388-2007 9. The learned Counsel for the appellant first submitted that the information was, in fact, received on 25th February, 2003 as could be seen from document at Exhibit 17 which is Search and Seizure Report dated 1st March, 2003. The information in form of intelligence note at Exhibit 8 which was proved, however, shows that the information had been received on 28th February, 2003. Therefore, according to the learned Counsel, the officials were not coming out with the whole truth and the evidence of PW-1 Namboodri relating to the receipt of information was, therefore, liable to be discarded. As rightly submitted by the learned Special Public Prosecutor the witness had specifically stated that he had collected intelligence on 28th February, 2003 and prior to that date - he had no intelligence or information about the accused. She submitted that reference to 25th February, 2003 in the Search and Seizure Report at Exhibit 17 was apparently a mistake and could not be used by 14 Apeal 388-2007 the defence to assail veracity of witnesses. She pointed out that PW-9 Keith Sanchis, Assistant Commissioner, who had received the Search and Seizure Report had categorically stated in para eight of his deposition that reference to 25th February, 2003 was an inadvertent mistake and there was no intelligence note of 25th February, 2003. 10. I have considered these arguments in the light of the evidence tendered. The contention of the learned Special Public Prosecutor, that as explained by PW-9 Sanchis, reference to 25th February, 2003 in Report at Exhibit 17 could be a mistake, has to be accepted since this Report was drafted by PW-2 Vijay Bhatia, who was the raiding officer, and not by PW-1 Namboodri, who had received the intelligence. Therefore, this discrepancy is irrelevant and cannot affect the veracity of the evidence tendered by the two witnesses. 15 Apeal 388-2007 11. The learned Counsel for the appellant next submitted that information in question which is at Exhibit 8 had not been recorded in the prescribed form in a register but has simply been typed on a sheet of paper and submitted in original to PW-9 Sanchis, the superior of PW-1 Namboodri. Therefore, according to the learned Counsel, the evidence about information received is assailable on two grounds: The first that it was not recorded as prescribed in a form known as DRI-1, and secondly, because it was submitted in the original and not in the form of copy to the superiors. The learned Counsel relied on Judgment of this Court in Haji Dariya & anr. Versus The Intelligence Officer & anr, Criminal Appeal No.484 of 1999 decided on 21st December, 2001 where this Court was considering the requirement about sending copy of information received to superior officer. In this context the Court observed as under :- 16 Apeal 388-2007 It is also admitted as well as evident position that it was the gist of information, and not the copy of the original information was sent to the superior officer as contemplated by sub-section (2) of section 42 of the NDPS Act. In fact, the existence of recorded information has remained a mystery. According to witnesses Sanchis and Mr. Bichhu, the sealed packet containing the original information was handed over to Commissioner, Mr. Walke, who is not examined as a witness in this case, nor it has come on record that in compliance of sub-section (2) of Section 42, copy of the original information was sent to immediate superior i.e. Superintendent Mr. Walke, at any time whatsoever. In this case, it is an admitted position again that the original information was in Hindi and the gist was nothing but a summary translated in English by the officer. In short, except for bare words of P.W.4  Sanchis and P.W.5  Bichhu, both the Customs Officers, there is nothing on record to show that the original information was reduced to writing and copy thereof was sent to the superior officer as contemplated under sub- section (2) of Section 42 of the NDPS Act. The Court also noted the practice of recording the information in form DRI-I and found that this was not done. The Court held : Therefore, the present case is a classic example of the non-compliance of the provision of Section 42(2) of the NDPS Act which renders the search and seizure a suspect, which is more so for want of independent corroboration such as DRI-I Register, which is required to be maintained under the relevant Rules of the Department. 17 Apeal 388-2007 12. In Vinayak s/o. Dnyanoba Gaikwad & Ors. Vs. State of Maharashtra, reported at 2004 ALL MR (Cri) 1922, on which the learned Counsel for appellant relied, this Court held in respect of non-compliance to provisions of Section 42 as under :- 11. It is well settled that the provisions of Section 42 of the NDPS Act, are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. Sub- section (2) of the Section 42 of the NDPS Act, 1985, gives a mandate to authorized officer to forthwith send a copy of information or the grounds of his belief to his immediate official superior. The provision of Sub- section(2) of Section 42 of the NDPS Act, 1985, which casts a duty upon authorized officer to send a copy of the report or the grounds of his belief to his immediate superior officer, is mandatorily in nature and non-compliance of which is fatal to the prosecution case. It has been held by the Apex Court in the case of State of Punjab Vs. Balbir Singh, (1994)3 Supreme Court Cases 299 that under Sec.42(2) such empowered officer, who takes down any information in writing or records the ground under proviso to Sec. 42(1) should forthwith send a copy thereof to his immediate officer superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent it is mandatory, Sub-section (1) of Sec.42, therefore, gives a mandate to the authorized officer, before proceeding to make search, to take down the information in writing or record his reasons and if these mandatory provisions are not complied with then the trial stands vitiated. This safeguard has been provided 18 Apeal 388-2007 taking into consideration the deterrent sentence contemplated under the Act and with a view that the innocent persons are not unduly harassed and they may not be falsely implicated later on by the investigating officer and, therefore, the provision has been made that it is only the authorized officer who can proceed with the search and seizure and that too only after taking down information in writing or recording his reasons of belief. 13. The learned Counsel for the appellant submitted that the information should have been taken down in form DRI-I as per standing instructions issued by the department and failure to do so should result in trial being vitiated. The learned Special Public Prosecutor submitted first that any forms prescribed or instructions issued cannot be elevated to the status of mandatory statutory requirements. Secondly, the form DRI-I was basically prescribed for the purpose of deciding the question of rewards and therefore, in the absence of any specific requirement of law and that the information must be recorded in form DRI-I, failure to record the information would be immaterial. 19 Apeal 388-2007 She further submitted that requirement of sending a copy does not imply that original could not be sent or shown to the immediate superior, who was sitting in the same office. Question of sending of copy would have arisen had the officer been in some other office. Therefore, merely because Section 42 refers to sending of copy, it does not imply that the original could not have been made available to the superior and when the original was so shown to the superior, there was non- compliance of requirement to send a copy. 14. The learned Special Public Prosecutor relied on Judgment of the Supreme Court in STATE OF PUNJAB Versus MAKHAN CHAND, reported at 2004 Supreme Court Cases(Cri)830 on the point of compliance to standing orders and Government instructions. 9. Learned counsel for the respondent-accused relied on certain standing orders and standing instructions issued by the Central Government under Section 52-A(1) which require a particular procedure to be followed for drawing of samples and contended that since 20 Apeal 388-2007 this procedure had not been followed, the entire trial was vitiated. 10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with disposal of seized narcotic drugs and psychotropic substances . Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper stage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub- sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the 21 Apeal 388-2007 investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention. In para 7 of the Judgment, the Court also held that provision of Section 50 of the Act would not apply to a situation where the search undertaken is not of the person of the accused but of something carried in his hand. 15. In KHET SINGH Versus UNION OF INDIA, reported at (2002) 4 Supreme Court Cases 380 on which the learned Special Prosecutor relied, the Court was considering the binding effect of standing instructions. The Court held :- 5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious 22 Apeal 388-2007 view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance. 10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give