1 82909 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 829 OF 2009 Umesh Badrinarayan Bangur ] Age 47 years, Occupation, Chartered Accountant, ] residing at 11-B, Flat No. 501-502, Kalpak Estate, ] Antop Hill, Mumbai 400 037 ] ...Petitioner (Original accused No.2) Versus 1. Sanjay A. Poojary ] Narcotics Control Bureau, ] Mumbai Zonal Unit, ] Mumbai, 3rd Floor, Exchange Building, ] Sprott Road, Ballard Estate ] Mumbai 400 001 ] 2. The State of Maharashtra ] 3. The Union of India ] through Ministry of Law ] Aaykar Bhavan, 2nd Floor, ] M.K. Road, Mumbai 400 020 ] ...Respondents The Petitioner, in person. Mr. Sandeep Shinde, Special Counsel, with Mr. A.S. Gadkari for Respondents No. 1 and 3 Ms. S.V. Gajare, A.P.P., for Respondent No. 2 CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE: 2ND MAY, 2011 2 82909 JUDGMENT (Per A.M. Khanwilkar, J.):- By this petition under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, the petitioner, who has been named as accused No. 2 in NDPS Special Case No. 192 of 2006, has prayed for quashing of the said proceedings. qua him, pending in the Court of Special Judge for NDPS Cases, Greater Mumbai. 2. Only two contentions have been raised during the course of hearing. The first ground, on which the petitioner prayed for quashing of proceedings against him, is that, he has been named as accused No. 2 only in his capacity as Professional Director of the Company, which, in turn, was found to have indulged in offence punishable under Section 29 read with Sections 8(c) and 21 of the N.D.P.S. Act, 1985, Section 21(c) read with Sections 8(c) and 29 of the N.D.P.S. Act and Section 23 read with Sections 8(c), 21 and 29 of the NDPS Act. The second argument is that, the vessel, in which the goods in question were transported, was intercepted by officers of Narcotics Control Bureau on high seas, which is outside the area of operation of the officers of NCB, and for that reason, the entire action by the officers of NCB under the provisions of 3 82909 the NDPS Act is vitiated. At best, it is the Customs officials who could have proceeded in the matter, being a case of importing of illegal goods or smuggling of goods. 3. So far as the first argument is concerned, indeed, the description of the petitioner in some of the documents has been mentioned as Professional Director of the Company. If it were to be held that the prosecution case against the petitioner about his involvement in the offence is limited to, in his capacity, as Professional Director, the petitioner may be justified in contending that he cannot be prosecuted for the offence committed by the Company, in which he, incidentally, happens to be only a Professional Director, without any thing more or knowledge about the commission of offence by the Company. 4. As the present petition is for quashing of prosecution against the petitioner, which is pending for trial, we would examine the grievance of the petitioner only in the context of the position emerging from the documents now presented by the prosecution. We would, therefore, straightaway refer to the allegations in the complaint, more particularly about the role of the petitioner before us. 4 82909 5. It is alleged that, on the basis of information, officers of Narcotics Control Bureau, Mumbai Zonal Unit, Mumbai, Customs, Nhava Sheva and Police, along with two independent panch witnesses and Omprakash Nogaja (accused No. 1), Umesh B. Bangur (petitioner – accused No. 2) and Vijay O. Nogaja, Directors of OPM International Pvt. Ltd., Mumbai, and Vijay Anant Thorve (accused No. 3) Managing Director of Mayur Clearing Agency (Custom House Agent) presented themselves at Berth No.1, Gateway Terminal India, Nhava Sheva, Navi Mumbai. The search of the container of Maersk Line bearing No. MSKU 636761, which was shipped on board vessel “Maersk Rotterdam” on 18th April, 2006 at Port Guayaquil, Ecuador, South America, and was bound for JNPT, India, was suspected to contain 200 Kgs. of Cocaine, a narcotic drug, in the name of consignee OPM International Pvt. Ltd. The said container was searched by the panchas, and it was revealed that it contained bags weighing about 2.870 Kgs., 6.662 Kgs., 6.554 Kgs., 6.396 Kgs. and 6.420 Kgs., respectively. The total gross weight of the bags marked 1(a) to 1(e) was 28.902 Kgs. On emptying contents of scotch taped packets recovered from packets marked 1(a) to 1(e) into a larger polythene bag, the same was weighed on a weighing machine and it was found to be about 24.800 Kgs. of Cocaine, which was placed into a carton and tied. The entire search and seizure process was done in the 5 82909 presence of accused Nos. 1 and 2, who were the Directors of OPM International Pvt. Ltd. They put their signatures on the label affixed on carton marked ‘I’. Be that as it may, accused No. 1, on being enquired, disclosed that five more containers were to arrive, besides eight containers. It is alleged that the officers then proceeded to carry out further search, and during the said search, recovered additional quantity of Cocaine, which also was seized in the presence of the accused, including the petitioner. 6. Indeed, mere presence of the petitioner at the time of search and seizure or his putting his signature on the label affixed on carton in his capacity as Professional Director of the Company by itself may not be enough to proceed against him. 7. Reverting to the allegations in the complaint specific to the role played by the concerned accused in the import or, especially, that each of them had knowledge about the import of contraband drugs, in paragraph 28 of the complaint, on the basis of the statement of accused No.1, it is stated that the consignor of the said eight containers, including Container No. MSKU 8636761, was Megha International Pte. Ltd., Singapore. It is stated that S.P. Biyani was the Marketing in-charge of 6 82909 Megha International Pte. Ltd., and they were regularly importing teak logs from Ecuador and other countries through the said Company. After giving details regarding the consignment, he has stated that earlier, the business of import was being done by Royal Global Pte. Ltd., but he wanted to maintain a distance with his brother, and, accordingly, as per the latter’s advice, he started importing through Megha International Pte. Ltd. He has stated that Madhu (wife of Manak Maheshwari, his brother) was having 25% shares in OPM International Pvt. Ltd., while Neelu (wife of S.P. Biyani) was having 49% shares in his company and the petitioner herein, Umesh Bangur, and Om Prakash’s son, Vijay Nogaja, together held 1% shares in the said company. So far as the role played by the petitioner is concerned, it is alleged that accused No.1, in his statement, has mentioned that the petitioner (Umesh Bangur, accused No. 2) handled the legal and company matters. 8. In paragraph 29 of the complaint, reference is made to the statement of Umesh Bangur (petitioner herein – accused No. 2), who is Director of said OPM International Pvt. Ltd. His statement was recorded on 4th June, 2006 under Section 67 of the NDPS Act. In his statement, he has admitted that he was the Director of the said OPM International Pvt. Ltd. He has then stated that the said company was mainly importing teak 7 82909 wood logs, metal scrap and pulses from various countries; that the purchases were done through Megha International Pte. Ltd., Singapore. Significantly, he confirmed all the other details given by Omprakash Nogaja (accused No.1) regarding the transactions of OPM International Pvt. Ltd. with the persons based abroad. He further added that he had met S.P. Biyani on one or two occasions. He also gave the physical description of S.P. Biyani, and identified Omprakash Nogaja (accused No. 1) and his son, Vijay Nogaja, as well as Vijay A. Thorve (accused No.3). 9. In paragraph 30 of the complaint, reference is made to statement of Vijay Omprakash Nogaja, Director of OPM International Pvt. Ltd. recorded on 4th June, 2006 under Section 67 of the NDPS Act. Even in this statement, it is mentioned that the petitioner (Umesh Bangur – accused No.2) was the Director of the said company, i.e., OPM International Pvt. Ltd. Even the statement of accused No. 3 (Vijay Anant Thorve), Managing Director of Mayur Clearing Agency, recorded on 4th June, 2006 under Section 67 of the NDPS Act refers to the fact that the petitioner herein (Umesh Bangur – accused No.2) was the Director of the said company. A reference is made to other statements, which reinforces the position that the petitioner (accused No.2) was Director of OPM 8 82909 International Pvt. Ltd., who was responsible for importing the consignment containing contraband drugs. 10. In paragraph 39 of the complaint, reference is made to the further statement of the petitioner dated 13th June, 2006, in which, he gave details regarding his family and other relatives and business shares held by them. He has admitted that he knew S.P. Biyani of Royal Global Exports Pte. Ltd. and Megha International Pte. Ltd. for the last four to five years, as OPM International Pvt. Ltd. was dealing with the said companies in connection with the import of timber consignments. He also admitted that he and S.P. Biyani had travelled together to the office of OPM International Pvt. Ltd. at Gandhidham. He, however, stated that he was a Professional Director of the Company, looking after the Income Tax, Sales Tax and Company Law matters on behalf of OPM International Pvt. Ltd. and also looking after the other affairs of the company in absence of Omprakash Nogaja. In this statement, he has also narrated all facts regarding the recovery and seizure of 200 Kgs. of Cocaine from Container No. MSKU 8636761 and the subsequent events that followed, corroborating the facts as stated by accused No. 1 and confessed that 200 Kgs. of Cocaine was to be disposed of as per the instructions of S.P. Biyani of Megha International Pte. Ltd., Singapore. 9 82909 11. With reference to this statement of the petitioner, recorded under Section 67 of the Act, reveals the role of the petitioner, which is not simpliciter of a Professional Director, but also of taking active part in the affairs of the company in the absence of Omprakash Nogaja (accused No.1), who happened to be his brother-in-law. 12. Paragraph 44 of the complaint refers to the further statement of the petitioner dated 26th June, 2006, wherein he has accepted that he knew that Anand Somani was a relative of S.P. Biyani and was presently based in Ecuador. He has further accepted that he met Anand Somani once in Mumbai at a marriage function four years’ ago. He has then given details regarding his financial transactions and identified S.N. Modani, brother of his brother-in-law, Rajesh Modani, an NRI, whose transactions were handled by him in India. He has stated that his brother-in-law, Rajendra Modani, was holding an NRO Account in Bharat Overseas Bank, Fort Branch, and that he had left blank signed cheques pertaining to this account with him, and, as per his (Rajendra Modani’s) instructions, he used to deposit the same into the account of S.N. Modani and that of Subh Laxmi Syntex Ltd. 10 82909 13. In paragraph 54 of the complaint, it is stated that, in view of the information gathered during the course of the investigation, which was found to be contradictory to facts stated by the accused persons, including the petitioner (accused No.2), in their statements recorded earlier, NCB moved the Special Judge for NDPS Cases for Greater Mumbai, for seeking examination warrants of accused No. 1 and petitioner (accused No.2). After the said prayer was accepted, accused No.1 and the petitioner (accused No.2) were brought from Arthur Road Prison on 11th October, 2006, and were examined with respect to the outcome of investigation carried out till that date. It is alleged that, when they were asked if they wished to give statements, they refused to give their statements both verbally and in writing. 14. In paragraph 60 of the complaint, it is alleged that the investigations carried out till date in respect of procurement and despatch of 200 Kgs. of Cocaine under seizure indicate the probable involvement of the persons / establishments in conspiracy to procure and despatch the 200 Kgs. of Cocaine under seizure. 15. In paragraph 62, it is alleged that it was found that accused No. 3 was not authorised to operate as Custom House Agent. He was 11 82909 operating in contravention of the provisions of the Customs Act. Even then, the company of accused Nos. 1 and 2, OPM International Pvt. Ltd., with knowledge and mala fide intentions, paid the registered CHA, i.e., Girdhirlal Kalyanji & Co., Rs. 250/- and Rs.500/- per clearance of 20 feet and 40 feet, respectively, whereas accused Nos. 1 and 2 herein were paying Rs.3500/- and Rs. 4500/- per clearance of 20 feet and 40 feet, respectively, during the relevant period. 16. In paragraph 64 of the complaint, it is summed up that accused Nos. 1 to 3, along with other known and unknown persons, during the period from May and June, 2006 at Singapore, Ecuador, Mumbai and at other places, conspired to commit and abetted the commission of offences under the NDPS Act, to acquire, purchase, possess, sell or transport, import and clear cocaine in contravention of the prohibitions imposed under the Act and have thereby committed an offence punishable under Section 29 read with Sections 8(c) and 21 of the Act. 17. In paragraph 65, it is stated that accused Nos. 1 and 2, in pursuance of the said conspiracy or otherwise, imported the seized 200 Kgs. of cocaine, which was recovered from eight bags in Container No. 12 82909 MSKU 8636761 in contravention of the prohibitions imposed by Section 8(c) of the Act and have thereby committed an offence punishable under Section 23 read with Sections 8(c) and 21 of the Act. 18. In paragraph 66, it is then alleged that accused Nos. 1 and 2, in pursuance of the said conspiracy or otherwise acquired, purchased and transported the seized 200 Kgs. of cocaine, a narcotic drug, in contravention of the prohibitions of Section 8(c) of the Act, and committed an offence punishable under Section 21 read with Sections 8(c) and 29 of the Act. 19. Besides the complaint, we may usefully refer to the statement of accused No. 1 dated 13th June, 2006. In this statement he has stated that Umesh Bangur (petitioner – accused No.2) is the other Director of OPM International Pvt. Ltd. He (petitioner – accused No.2) is related to him (accused No.1), as his (petitioner – accused No.2) sister is married to his (accused No.1) brother, Manak Maheshwari. He (accused No.1) has further stated that accused No.2 (petitioner herein) is a Chartered Accountant and is handling the office legal and account matters. He (petitioner herein – accused No.2) is also empowered to issue cheques jointly with his (accused No.1’s) son, Vijay Nogaja, who is 13 82909 the other Director of the company. He (accused No.1) has further stated that the petitioner herein (accused No.2) also assisted him in opening of account and also dealing with Megha International Pte. Ltd. in his (accused No.1) absence. Further, the petitioner herein (accused No.2) also knows S.P. Biyani of Megha International Pte. Ltd. He has further stated that, to his knowledge, the petitioner herein does not handle accounts of any other company / person. 20. Our attention is also invited to the statement of the petitioner herein (accused No.2) dated 13th June, 2006. He has stated as follows:- “ On being asked I state that, I am working as a Professional Director at OPM International Pvt. Ltd. I am working in this company for the last 4 to 5 years. My present remuneration is Rs.4 lakhs per annum, on retainership basis. As a Professional Director, I look after the Income Tax, Sales Tax, Company law matters, Court cases, liaising with Govt. Departments and other Departments. On being asked about my day today working, I state that when I am in Mumbai, I come to the office around 11-12 hrs in the morning. I have a separate cabin. Here I check the present status of all the legal issues pertaining to our Company. The company has around 70 civil as well as criminal cases pending in different courts, in Mumbai as well as outside Mumbai. I also look after the assessments of Income Tax, Sales Tax etc. I do not handle accounts on day to day basis. But I look after the finalization of accounts. I am authorized to issue cheques jointly with other Director, for conducting business of the Company. I assist Om Prakash Nogaja, CMD, to place the orders for importing timber, which we dispose off in the market on receiving the consignment, and execute the same. I prepare the documents for opening the L/C with our bankers namely, Punjab National Bank, on the basis of which import 14 82909 transaction is finalized. In the absence of Om Prakash Nogaja, I look after the entire business. On being further asked about my relation with Om Prakash Nogaja, I state that he is brother-in-law of my sister (Mrs.Madhu), who is based in Singapore.” (emphasis suplied) Further, while explaining the documents recovered during the search from the residence of the petitioner, in the same statement he has stated as under :- “ The document marked D-5 is a telephone diary page with name, address and telephone numbers. The first name is of S.P. Biyani, the same person, whom I earlier referred as the person through whom we import wooden logs. In this diary S.P. Biyani’s Singapore residential address is written but his telephone number is not mentioned in the diary. The document marked D-6 is HDFC Pay-in-slip dt. 07.03.2006 for depositing Rs.40 lakhs (Rs. Forty lakhs only) vide cheque no.076986 in the account of Subhlaxmi Syntex Ltd. Bhilwara, signed by Rajendra Modani. This cheque was issued from his NRE acount. On being asked, I state that Rajendra Modani is my brother-in-law. He is NRI and based in Bangkok. He has left blank signed cheques and as per his instructions said cheque was issued to M/s. Subhlaxmi Syntex Ltd. Bhilwara. I am not aware as to what reason the cheque was issued. The document marked D-7 is HDFC Pay-in-slip dt. 14.03.2006 for depositing Rs.10 lakhs (Rs. Ten lakhs only) vide cheque no.076988 in the account of Subhlaxmi Syntex Ltd. Bhilwara, signed by Rajendra Modani. This cheque was issued as per Rajendra Modani’s instructions to M/s. Subhlaxmi Syntex Ltd. Bhilwara. I am not aware as to what reason the cheque was issued. The document marked D-9 is ICICI Pay-in-slip dt. 03.05.2006 for Rs.85 lakhs (Rs. Eighty Five lakhs only) deposited in the account of S.N. Modani. This amount was deposited through cheque given by Rajendra Modani from his NRE account. This payment is also a NRI gift from Rajendra Modani to S.N. Modani. The document marked D-11 is one account payee cheque no.076991 dt. 14.03.06 in favour of Subhlaxmi Syntex from Bharat 15 82909 Overseas Bank Ltd., with signature of issuer and no amount written. This cheque was not issued as the same was treated as cancelled because of overwriting. The signature in this cheque is of Rajendra Modani. The document marked D-12 is one the pass book of Punjab National Bank, Mumbai in my name for my account no. 373100-0105073077. On being asked, I state I pay Income tax and file Income tax returns and the details of this passbook are reflected in my returns. The document marked D-13 is a cheque book of Rajendra Modani A/c SB NRO-27 of Bharat Overseas Bank Ltd. containing six signed cheques (Sr.No.027235 to 027240) and ten blank unsigned cheques (027241 to 027250). This account is non- operative since last several years. As a token of seeing these documents marked D-1 to D-13, I put my dated signature on the same. Now you have shown me a Invoice No.4000189 dt. 30.05.2003 issued by Jetchase Travels Pvt. Ltd., which features my name and S.P. Biyani’s name as passengers. On being asked, I state that this for the travel done by both of us to Bhuj on 03.06.2003 by Jet Airways. As I have already stated, from Bhuj, we traveled to our Gandhidham office. As a token of seeing this invoice, I put my dated signature on the same. Now you have showed me a letter dt. 12.06.2006, addressed to The Superintendent, Narcotics Control Bureau, Mumbai from Punjab National Bank, Mumbai with the enclosures of L.C. application, sale contract and the LC No.3731FLC20015/06. On being asked I state that the said enclosures belong to our company for our purchase of timber logs. I state that the present consignment of timber logs is also covered in this LC. As a token of seeing this letter and enclosure I put my dated signature on the same. Now you have showed me another letter dt. 12.06.2006, addressed to The Superintendent, Narcotics Control Bureau, Mumbai from Punjab National Bank, Mumbai enclosing all the documents received by them along with the BL No.DSLSGYR0000773. The document is serially numbered. The Sr.No.1 to 5 belongs to the consignment of 8 containers of wooden logs imported by us through M/s. Megha International, out of which one container contained teak wood as well as 8 bags other than teak wood, contents of which on testing gave result of cocaine, a Narcotics Drug. As a token of seeing these document I put my dated signature on the letter and first 15 serially numbered pages. 16 82909 Question 1: Do you admit recovery of 200 Kgs of Cocaine from Container No.MSKU 8636761 on 03.06.2006 at Maersk CFS Nhava Sheva? Answer: Yes. Question 2: The consignment containing logs was booked by your company executing sales contract? Answer: Yes Question 3: Do you agree that as per the Panchanama and shipping documents the seals of the containers were intact and bearing same number? Answer : Yes but it was bend. Question 4: Did you inform your bank or any other authority regarding recovery of cocaine from container No.MSKU8636761? Answer: No. Question 5: Did you inform any of your supplier about recovery of cocaine on 03.06.2006 and requested for documentary clarification? Answer : I have not informed. Question 6: Why you did not inform this incident to the Director’s of M/s. Megha International Pte. Ltd., your supplier? Answer: In this regard, the CMD Shri Om Prakash Nogaja is in touch with S.P. Biyani of M/s. Megha Pte Ltd. Question 7: As offices of Royal Global Exports Pte Ltd. and Megha International Pte Ltd. are at adjacent premises and S.P.Biyani is Director in Royal Global Exports Pte Ltd. and Sales executive in M/s. Megha International Pte Ltd. he uses offices of Royal Global and discharge the duties on behalf of Megha International Pte Ltd.? Answer : I know that Manak Maheshwari, my brother-in-law is a Director in Royal Global Exports Pte Ltd. and S.P. Biyani is working in the same company. I also know that S.P. Biyani is working with M/s. Megha International Pte Ltd. with whom we have business relations. Although I have not seen personally, however, as the offices of both these companies are situated in the 17 82909 same building, it is a possibility that S.P.Biyani could use both the offices. Question 8 : Did you file any legal claim on any company, any shipping line, any container line in respect of recovery of cocaine in container No.MSKU 8636761 booked by your Company? Answer: No. But we have taken advice from our Advocates and solicitors, M/s. A. Bharat & Co. situated at opposite Old Customs House, Mumbai, to initiate the necessary action against the responsible party. Question 9: In case