:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.939 of 2001 Illyas Mohammed Usman Shaikh & Elias Mohammed Usman Shaikh residing at Flat No.46, IV Floor 252, Yousouf Building, L.T.Marg, Mumbai - 400 002. (ar present in Judicial Custody in Yerawad Central Prison) ....Appellant. V/s 1. Shri A.J. Shaikh, Intelligence Officer, Narcotics Control Bureau, Mumbai. 2. The State of Maharashtra ....Respondents. --- Mr. L. Chari, Senior Counsel with Mr. A.R. Khan for the appellant. Mr. D.N. Salvi for Union of India. Mr. D.P. Adsule for the State. --- CORAM: V.M. KANADE, J. DATE : 6TH DECEMBER, 2004. ORAL JUDGMENT: 1. The appellant - original accused has challenged the judgment and order passed by the Special Judge (NDPS), Greater Bombay in N.D.P.S. Special Case No.299 of 1998. By the said Judgment and Order dated 6th/7th August, 2001 the Special Judge was pleased to convict the accused for having committed an offence punishable under section 21 read with section 28 of :2: the N.D.P.S. Act, 1985 and was pleased to sentence him to suffer R.I. for 10 years with fine of Rs 1 lakh and, in default of payment of fine, to suffer further S.I. for six months. He is also convicted for the offence punishable under sections 23 and 29 read with section 8(c) of the N.D.P.S. Act and sentenced to suffer R.I. for 10 years and to pay fine of Rs 1 lakh and, in default of payment of fine, to suffer S.I. for six months. 2. The appellant was charged by the Special Judge for having entered into criminal conspiracy in the period between April 1998 to 27/5/1998 to transport and export heroin out of India in violation of the provisions of section 8(c) of the N.D.P.S. Act and for having exported out of India 2 kgs. 771.5 gms. of heroin to Mauritius which was seized at Mauritius Airport on 27/5/1998. The appellant was, therefore, charged for having committed an offence punishable under section 29 read with sections 8(c), 21 and 23 of the N.D.P.S. Act. The appellant was further charged for having purchased, possessed and transported the said contraband to Mauritius. 3. The prosecution case, in brief, is that the Narcotic Bureau of Mumbai received information on :3: 1/6/1998 that the Mauritius Customs had arrested two Indian Nationals viz. one Akbar Ali Abjani and one woman Mrs. Shashi Bhagwan Chari on 27/5/1998 as they were found to be in possession of 3 kgs heroin. On 29/6/1998, Mauritius Customs sent xerox statements, travel document, marriage certificate of the two Indian Nationals to the Narcotics Control Bureau, Mumbai. On 15/7/1998, Narcotics Control Bureau at Mumbai arrested the appellant and recorded statements of witnesses. On 21/7/1998, Narcotics Control Bureau received original statements of Ali Akbar and Shashi Chari and photograph of the appellant. On 22/7/1998, Narcotics Control Bureau, Mumbai recorded the statement of the appellant. From the statement recorded by the Anti Drug & Smuggling Unit (For short "ADSU"), it transpired that two arrested Indians viz. Akbar Ali and Mrs. Shashi Chari informed them that they were married and had gone to Mauritius on their Honeymoon trip. The affidavit of their marriage was produced by them and the suitcases which they were carrying were registered in the name of the male passenger. ADSU seized the said suitcases and found that the brown suitcase had 1567 gms of heroin and other suitcase contained 1458 gms of heroin. 4. The authorities - ADSU informed the N.C.B. at :4: Mumbai that Akbar Ali had informed them that he had married one Rafat Ali at Grant Road who had introduced him to the appellant - original accused herein. Akbar Ali further had disclosed that the accused had proposed to him that they should carry currency to Mauritius and that he would be awarded Rs 10,000/-. This proposal was accepted by Akbar Ali. 5. According to ADSU, Mrs. Shashi Chari had informed them that she had met one Surekha Singh at Sion Station who had introduced to her accused - appellant herein who had told her to perform fake marriage with Akbar Ali and to accompany him to Mauritius under the guise of going on honeymoon trip. The appellant had promised her to pay Rs 10,000/- for carrying currency to Mauritius. According to the prosecution Akbar Ali and Shashi Chari performed fake marriage. Appellant/accused took their passport and purchased their air tickets and Visas through Raj Travels. 6. Further from the communication which was sent by the Officers of the ADSU, it transpired that the appellant had called the said Akbar Ali Abjani and Shashi Chari at Hotel Alka at 21.30 hours on 22/5/1998 and packed their clothes in two suitcases in :5: the presence of Rafat Ali and Surekha Singh and they were taken to the Airport by taxi. They were told that one person would contact them at their Hotel Silver Beach in Mauritius to take delivery of the suitcases by giving them a ten rupee note having number 758786. Accordingly, on 26/5/1998 they were taken to Sahar Airport by taxi and they boarded Flight to Mauritius. Akbar Ali Abjani informed the Officers of ADSU that the appellant was their boss and Rafat Ali and Surekha Singh were working with him as recruiting agent. 7. After the communication was received from ADSU, the statement of Surekha Singh and Rafat Ali was recorded and the Officers searched the residence of the appellant. He was summoned in the N.C.B’s Office and his statement under section 67 of the N.D.P.S. Act was recorded and the appellant was arrested on 15/7/1998. A complaint was filed by the Investigating Officer P.W. 1 - Abdul Shaikh of N.C.B. A charge was framed against the appellant - original accused who pleaded not guilty to the said charge. 8. Prosecution examined 12 witnesses. Prosecution also relied on the communication received by the N.C.B. from the authorities of ADSU regarding search :6: and seizure of the contraband at Mauritius Airport. The Trial Court held that the prosecution has proved beyond the reasonable doubt that the accused had committed the said offence and, therefore, convicted the accused for having committed the said offence. Appellant has preferred this appeal challenging the said judgment and order. 9. The learned Counsel appearing on behalf of the appellant submitted that the statement of the accused which was recorded by the Officers of N.C.B. was immediately retracted by him on 16/7/1998 at the first opportunity which was available to him. He submitted that the prosecution had failed to prove the offence as alleged against the appellant - accused beyond the reasonable doubt. He submitted that the appellant was entitled to be acquitted. He submitted that the documents which were tendered by P.W.1 - Abdul Jalil Shaikh were not admissible in evidence and further submitted that the Trial Court erred in accepting the said documents on record. He submitted that no presumption could be drawn in respect of the said documents since the documents had been received from the case outside India and, therefore, they would fall within the provisions of Section 66(ii). He submitted that the presumption regarding the contents of these :7: documents was available only in respect of the documents which fall within the provisions of section 66(i). He submitted that subclause (c) of section 66 made it explicitly clear that only in the case falling under clause (i), the Court can presume the truth of the contents of such documents. He submitted that all the documents which were produced by P.W.1 regarding the information received from the Officers from ADSU were not properly proved and, therefore, these documents were not admissible in evidence. He submitted that these documents were excluded from the evidence adduced by the prosecution. The only evidence which was available against the appellant was his statement which was recorded by the Officers of the N.C.B., Mumbai. He submitted that the said statement had been retracted by the accused immediately on the very next day i.e. on 16/7/1998 and, therefore, as a result of the retracted confession, a conviction could not be based on the confession recorded by the Officers of N.C.B. He submitted that in the absence of any other evidence, conviction could not be based on the statement of the accused. He submitted that none of the witnesses examined by the prosecution had supported the prosecution case. He submitted that, therefore, Trial Court had clearly erred in convicting the accused on :8: the basis of the documents produced by the ADSU, Mauritius on the basis of the statement of the accused. He further submitted that the Officers of respondent No.1 fabricated the statements of the witnesses and had coerced them to make statement, which fact was admitted by the witnesses in their testimony. In support of the said submission, the learned Counsel has taken me through the evidence of P.W.4 - Shrivastava, P.W. 5 - Nagvi, P.W. 6 - Shukla, P.W. 8 - Mohd. Fariduddin Hussaini, P.W. 9 - Venkatraman Bhatt and P.W. 10 - Vasudev Katariya. He submitted that the evidence of P.W. 11 - Mr. Rawoah, Chief Inspector of ADSU, Mauritius cannot be relied upon as the statements of the two Indian citizens arrested by him viz. Mr. Akbar Ali Abjani and Mrs Shashi Chari are not admissible in evidence under section 25 of the Indian Evidence Act. He submitted that the statements of these two Indian Nationals were recorded by third person in his hand writing which were written at the behest of the Officer. He, therefore, submitted that it could not be said that the said statements were made by the said two Indian Nationals. He further submitted that the reliance placed by the prosecution on section 86 read with section 76 of the Evidence Act regarding admissibility of the documents was unfounded as the :9: judgment of the Mauritius Court does not fall within the ambit of section 74 of the Evidence Act. He submitted that though the Civil Procedure Code has made special provision in regard to the foreign judgments and its enforcibility, similar provisions were not incorporated in the Code of Criminal Procedure and, therefore, in order to consider whether the said judgment is admissible in Indian Law, the provisions of Evidence Act are required to be considered. He further submitted that the Evidence Act does not prescribe any special privilege in respect of the foreign judgments. He further submitted that delay in serving the summons on the accused on 15/7/1998 was not sufficiently explained by the prosecution as the NCB had received Fax message on 3/6/1998. He submitted that delay in taking action against the accused has not been satisfactorily explained. 10. The learned Counsel appearing on behalf of the respondents submitted that since the main charge against the accused was under section 29 of the N.D.P.S. Act, a presumption was raised under section 35 of the said Act. He submitted that under section 35 of the Act, a duty was cast on the Court to presume the knowledge and intention of the accused regarding :10: the conspiracy. He submitted that the Trial Court had correctly held that the evidence recorded in the case was sufficient to prove the conspiracy of the appellant - accused with the two convicted accused in Mauritius and two other absconding accused. It is further submitted that the provisions of section 35 would be attracted in the present case and therefore the presumption was raised by virtue of the said section which was required to be rebutted by the accused to prove that he had no knowledge or intention. It is submitted that the accused had not rebutted the said presumption. It is further submitted that the procedure which is required to be followed under the provisions of N.D.P.S. Act had been followed to the hilt which is evident from the evidence of P.W.1, P.W.2, P.W.3 and P.W.12. It is submitted that P.W.11 who was an Investigating Officer in a case at Mauritius wherein two co-accused were convicted has deposed about the involvement of the appellant on the basis of the foreign documents including the judgment of the Supreme Court of Mauritius. It is submitted by the learned Counsel appearing on behalf of the respondents that these documents were proved by the prosecution as per the provisions of the Indian Evidence Act and, therefore, on the basis of this evidence, the prosecution has :11: proved beyond the reasonable doubt the involvement of the accused. 11. It is further submitted that though P.W.4 to P.W. 10 had turned hostile yet, part of their evidence is admissible and if the said evidence is read alongwith the statements of other witnesses which were recorded under section 67 of the N.D.P.S. Act then the said evidence is sufficient to prove the guilt of the accused beyond the reasonable doubt. 12. The learned Counsel appearing on behalf of the respondents further submitted that the delay in the arrest of the accused could be satisfactorily explained. It is submitted that the information was received by N.C.B. on 3/6/1998. Thereafter, on 29/6/1998, copies of the statements of the two accused who were arrested at Mauritius were received. It is submitted that the appellant was granted bail by the Hon’ble High Court in another case and the Department had approached the Supreme Court for cancellation of the bail. However, the Supreme Court refused to cancel the bail. However, a condition was imposed by the Supreme Court that he should attend the NCB Office for one month. It is submitted that, therefore, it was not possible for the appellant to abscond during :12: this period and N.C.B. did not take any action till they received confirmation from ADSU, Mauritius regarding his photograph. It is submitted that, therefore, there is sufficient explanation available with the N.C.B. for not arresting the accused. It is further submitted that so far as the retraction of the statement by the appellant on 16/7/2004 is concerned, while retracting the statement he had made a complaint regarding ill-treatment by the NCB Officers. It is submitted that the Trial Court had sent the accused to the Government Hospital for medical check up and nothing could be revealed from the said medical report. The learned Counsel appearing on behalf of the respondents relied upon the Division Bench Judgment of this Court in the case of Wilberg Peter Wilberg Peter Wilberg Peter Torbjorn Torbjorn Torbjorn Florentin Florentin Florentin Vs. Inspector of Customs Florentin Vs. Inspector of Customs Florentin Vs. Inspector of Customs Florentin reported in 2002(3) Mh.L.J. 123. 2002(3) Mh.L.J. 123. 2002(3) Mh.L.J. 123. He submitted that in the said judgment, the Division Bench held that the statement of the accused recorded under section 67 of the N.D.P.S. Act did not lose its credibility only because it is retracted. He submitted that there was no medical evidence regarding the alleged ill-treatment to the accused. He submitted that, therefore, the statement under section 67 of the N.D.P.S. Act had a corroborative value in the evidence of this case. It is further submitted that :13: though the independent witnesses had turned hostile, the evidence which had been given by them regarding chain of events which had taken place could be relied upon for the purpose of proving conspiracy in the false registration of the marriage of accused Nos. 1 and 2, in the affirmation of an affidavit before the Notary, the other arrangements made by the accused regarding their stay in the hotel before leaving India and the arrangement of travel ticket through Raj Travels. He submitted that these statements coupled with the statements recorded under section 67 of the NDPS Act clearly proved the case of the prosecution beyond the reasonable doubt. 13. It is further submitted that the copy of the judgment of the Supreme Court of Mauritius was duly proved and produced before the Trial Court under sections 74, 78(6) and 87 of the Evidence Act. It is further submitted that the said document was, therefore, admissible in evidence and could be relied upon for the purpose of coming to the conclusion that the appellant - accused had committed the said offence. It is further submitted that the N.D.P.S. Act was enacted as per the International treaty which prescribes certain norms to be adopted by all the countries. It is further submitted that so far as the :14: order of the Supreme Court of Mauritius is concerned, the said order had become final. It is further submitted that although the procedure regarding search, seizure in Mauritius is not identical with the one prescribed in this country even then there is no reason to question the correctness of the said procedure. It is submitted that from the documents which were received by N.C.B. along with the seizure of heroin from accused Nos. 1 and 2 alongwith the statement of witnesses recorded under section 67 corroborated the statement of the accused and, therefore, it had been proved that the accused had participated in the offence as a king pin and, therefore, he was rightly convicted for the offence punishable under section 8(c), 21, 23, 28 and 29 of the N.D.P.S. Act. The learned counsel in support of the said submissions relied upon three judgments of this Court reported in AIR 1964 SC 538 AIR 1964 SC 538 AIR 1964 SC 538 [Badat and Co. Bombay Vs. East India Trading Co.], AIR 1991 SC 45 AIR 1991 SC 45 AIR 1991 SC 45 [Raj Kumar Karwal Vs. Union of India] and (1996) 4 (1996) 4 (1996) 4 SCC SCC SCC 659 659 659 [State of Maharashtra and others Vs. Somnath Thappa and others.] 14. In the present case, the prosecution has charged the accused for having entered into criminal conspiracy along with others to possess, transport and :15: export heroin out of India in contravention of the provisions of the N.D.P.S. Act. The prosecution in support of its case has examined 12 witnesses to establish chain of circumstances and to prove the involvement of the accused - appellant herein with the said conspiracy. Out of these 12 witnesses, P.W. 4, 5, 6 and 7 have turned hostile. The prosecution case in a nutshell is that the appellant - Illyas Mohammed Usman Shaikh had conspired with others and had purchased 2 kgs. 771.5 gms. of heroin and had transported the heroin through Abjani Akbar Ali and Mrs. Shashi Chari to Mauritius. Before sending them to Mauritius, he had arranged a fake marriage between the two and a marriage certificate was obtained by him on the basis of the fake marriage. He, along with others, had met in a hotel room and has hatched a conspiracy in the said room. Abjani Akbar Ali and Mrs. Shashi Chari were arrested by the Mauritius Police and the heroin was seized and recovered from the suitcases. The Mauritius Police had informed the Narcotics Control Bureau, Mumbai and had sent photographs and other documents. The co-conspirators Abjani Akbar Ali and Mrs Shashi Chari had confessed before the Mauritius Police and had taken the name of the appellant - Illyas in the trial before the Mauritius Court where they were convicted and :16: sentenced to undergo imprisonment for life. The Narcotic Control Bureau has relied upon the judgment of the Supreme Court of Mauritius as also other documents which were sent by them to India. They have examined P.W.12 Harshad Giridhar Boricha who is the Inspector who investigated the case in Mauritius. The prosecution has also relied on the statement of the accused which was recorded under section 67 of the N.D.P.S. Act and the statement of the co-conspirators which was recorded in Mauritius. The prosecution has examined the advocate and notary who had prepared the false affidavit of Abjani Akbar Ali and Mrs. Shashi Chari. The prosecution has thus tried to establish the chain of circumstances in order to prove the theory of conspiracy, against the appellant. 15. The prosecution has examined four Officers of N.C.B. i.e. P.W. 1 - Abdul Jalil Shaikh, P.W. 2 - Sadashiv Shankar Asawale, P.W. 3 - Ms. Kanta D. Tejwani and P.W. 12 - Harshad Giridhar Boricha. . P.W.1 - Abdul Shaikh in his evidence has deposed that he was working as an Intelligence Officer, N.C.B. since June 1997 and on 3rd June, 1998 his Superior received an information from the Anti Drug and Smuggling Squad, Port Louis, Mauritius that two Indian :17: citizens were arrested as they were found to be in possession of heroin weighing 3 kgs at the airport of Mauritius and that the contraband was seized from the concealed part of two suitcases. In this message, the names of three other Indian citizens were mentioned. He has further deposed that on 29/6/1998 they have received a further fax notice containing photo copies of statement of Abjani Akbar Ali, Mrs. Shashi Chari and photo copies of the pass-ports and tickets, photo copies of marriage certificate and marriage affidavit. On the basis of this information, the house of the accused was searched and no incriminating documents of Narcotic Drugs were found at his residence. The statement of Illyas was recorded under section 67 of the N.D.P.S. Act and he was arrested on 15/7/1998. P.W.1, thereafter, recorded the statements of P.W.5 to P.W.9. . P.W. 2 - Sadashiv Shankar Asawale has stated in his evidence that he was attached to N.C.B., Bombay as an Intelligence Officer from December, 1996. He has stated that the appellant identified the photographs of Ms. Surekha Singh and Abjani Akbar Ali and Mrs. Shashi Chari. This witness has stated that he has recorded the statement of the appellant on 15/7/1998 and on 16/7/1998. P.W.2 has, thereafter, stated that :18: he has recorded the statement of P.W. 4 - Maheshprasad Shrivastava. . P.W. 3 - Ms. Kanta Tejwani has stated in her evidence that she was working as an Intelligence Officer with N.C.B. in July 1998. She has stated that she prepared Summons in the name of Surekha Chari which was served by her peon and the acknowledgement of service was obtained. She has stated that pursuant to the summons, Surekha attended the Office on 14/7/1998. P.W. 3 has further stated that Surekha Chari disclosed that her cousin had been to Mauritius. She has further stated that during the interrogation of Surekha Chari, some photographs were shown and Surekha Chari identified the photographs of Akbar Ali. She also identified the photographs of the two persons as also the photographs of the suitcases. According to P.W.3, Surekha Chari informed her that the suitcases shown in the photographs were given to her cousin by the accused Illyas at hotel Alka. . P.W. 12 - Harshad Giridhar Boricha has stated in his evidence that he was working with N.C.B. as an Investigating Officer since September, 2000. He has deposed that Mr. Dharamdev Rawoah was the Chief Inspector of Police, officer of ADSU, Mauritius gave :19: one copy of the judgment of the Supreme Court of Mauritius. He has deposed that the copy of the judgment was attested by Indian High Commission at Mauritius. 16. Out of these four witnesses, the evidence of P.W.3 - Ms. Kanta Tejwani does not assist the prosecution case in any manner since the prosecution has not examined Surekha Chari. Her evidence, therefore, to the effect that Surekha Chari had identified the photographs of Akbar Ali and Shashi Chari cannot be relied upon as it is not corroborated by Ms. Surekha Chari. The prosecution has not given any explanation as to why Surekha Chari is not examined. P.W. 1 and 2, apart from stating the fact that they have received the documents from Mauritius by fax and that they had recorded the statement of the accused under section 67 of the N.D.P.S. Act, does not shed any further light in support of the prosecution case. 17. Apart from the evidence of these four witnesses, P.W. 4 - Maheshprasad Shrivastava, P.W. 5 - Sayed Mohd N. Nagvi and P.W. 6 - Ashok Kumar R. Shukla have not supported the prosecution case. :20: 18. P.W. 4 - Maheshprasad Shrivastava has